Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 1 of 16

IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) KLAMATH IRRIGATION DISTRICT et al., ) ) Plaintiffs, ) ) v. ) No. 01-591 L ) UNITED STATES OF AMERICA, ) Judge Francis M. Allegra ) Defendant. ) __________________________________________)

PLAINTIFFS' SUPPLEMENTAL BRIEF ON RECENT AUTHORITIES REGARDING THE NATURE OF THE PROPERTY RIGHT

Roger J. Marzulla Nancie G. Marzulla MARZULLA & MARZULLA 1350 Connecticut Ave., N.W. Suite 410 Washington, DC 20036 202-822-6760 202-822-6774 (facsimile)

Dated: March 14, 2005

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 2 of 16

TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................................................................................ii QUESTION PRESENTED..................................................................................iii ARGUMENT...................................................................................................1 1. Adams v. United States, 391 F.3d 1212 (Fed. Cir. 2004).......................................1 2. In re Snake River Adjudication, Case No. 39576 (Idaho Dist. Ct. 2004) (Consolidated Subcase No. 91-63).................................................................2 3. Commentators on Water Rights....................................................................9 4. Klamath Water Bank, http://www.usbr.gov/mp/kbao/pilot_water_bank/ index.html............................................................................................10 CONCLUSION...........................................................................................................................12 INDEX TO APPENDIX OF EXHIBITS Page(s)

Ex. A ­ Memorandum Decision, In re Snake River Adjudication, Case No. 39576 (Idaho Dist. Ct. Sept. 2, 2004) (Consolidated Subcase No. 91-63) .........................1-33 Ex. B ­ Final Order, In re Snake River Adjudication, Case No. 39576 (Idaho Dist. Ct. Sept. 2, 2004) (Consolidated Subcase No. 91-63) .......................34-38

i

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 3 of 16

TABLE OF AUTHORITIES Cases Adams v. United States, 391 F.3d 1212 (Fed. Cir. 2004)..............................................1-2 In re Snake River Adjudication, Case No. 39576 (Idaho Dist. Ct. 2004) (Consolidated Subcase No. 91-63)....................................................................2-9 Other Authorities Reed D. Benson, So Much Conflict, Yet So Much in Common: Considering the Similarities Between Western Water Law and the Endangered Species Act, 44 Nat. Resources J. 29, 35-37, 68-69 (2004).........................................................9-10 Dylan Darling, Water Bank Applications Flood Bureau, Klamath Falls Ore. Herald & News, January 31, 2005.........................................................................11 Draft Contract for the 2005 Klamath Basin Pilot Water Bank, Dryland Operation, available at http://www.usbr.gov/mp/kbao/pilot_water_bank/docs/Contract_Draft_ Groundwater_Operation_2005.pdf.....................................................................11-12 Megan Hennessy, Colorado River Water Rights: Property Rights in Transition, 71 U. Chi. L. Rev. 1661, 1665-66, 1672 (2004).........................................................10 Klamath Water Bank, http://www.usbr.gov/mp/kbao/pilot_water_bank/index.html............10-12 Press Release, Bureau of Reclamation, Mid Pacific Region, Reclamation Expands Opportunities to Participate in Klamath Basin 2005 Pilot Water Bank Programs (February 11, 2005), available at http://www.usbr.gov/newsroom/newsrelease/detail.cfm?RecordID=4021...........................11

ii

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 4 of 16

QUESTION PRESENTED Whether there is additional legal authority, decided since December 1, 2003, relating to the parties' pending Cross-Motions for Partial Summary Judgment regarding the nature of the property right?

iii

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 5 of 16

IN THE UNITED STATES COURT OF FEDERAL CLAIMS KLAMATH IRRIGATION DISTRICT et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 01-591 L Judge Francis M. Allegra

PLAINTIFFS' SUPPLEMENTAL BRIEF ON RECENT AUTHORITIES REGARDING THE NATURE OF THE PROPERTY RIGHT Plaintiffs provide the Court with the following additional authorities decided since December 1, 2003, relating to their pending Cross-Motion for Partial Summary Judgment, filed on January 16, 2004, which is set for hearing before this Court on March 30, 2005. See Order (Feb. 15, 2005). Argument 1. Adams v. United States, 391 F.3d 1212 (Fed. Cir. 2004) In this case, the Federal Circuit reaffirmed its broad definition of property rights which specifically includes water rights first set forth in Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir.1994). The Adams court stated: In evaluating a takings claim, we have developed a two-step approach. First, we determine whether the claimant possessed a cognizable property interest in the subject of the alleged taking for purposes of the Fifth Amendment, i.e., whether the claimant possessed a "stick in the bundle of property rights." Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374 (Fed.Cir.2000) (internal citation omitted). Second, once we have determined that such a property interest exists, we decide "whether the governmental action at issue constituted a taking of that `stick.'" Id. (citing M & J Coal Co. v. United States, 47 F.3d 1148, 1154 (Fed.Cir.1995)).

1

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 6 of 16

In this case, our analysis focuses on the threshold requirement of a recognized property interest, i.e., whether Appellants possessed any cognizable property interests within the meaning of the Takings Clause . . .. * * * We have observed: Property interests are about as diverse as the human mind can conceive. Property interests may be real and personal, tangible and intangible, possessory and nonpossessory. They can be defined in terms of sequential rights to possession (present interests--life estates and various types of fees--and future interests), and in terms of shared interests (such as those of a mortgagee, lessee, bailee, adverse possessor), and there are interests in special kinds of things (such as water, and commercial contracts). And property interests play across the entire range of legal ideas. Adams v. United States, 391 F.3d 1212, 1218-19 (Fed. Cir. 2004) (quoting Florida Rock Indus., Inc. v. United States, 18 F.3d 1560, 1572 n.32 (Fed. Cir. 1994)). 2. In re Snake River Adjudication, Case No. 39576 (Idaho Dist. Ct. 2004) (Consolidated Subcase No. 91-63) In a stream-wide adjudication of the waters of the Snake River, Idaho's District Court for the Fifth Judicial District recently ruled that the irrigation districts have standing to participate as claimants to a water right (on behalf of their water users), rejecting Reclamation's argument (made in this case as well) that the water right rests entirely with the federal government. On September 2, 2004, the court issued a ruling on the parties' Cross-Motions for Summary Judgment, and in so doing, extensively reviewed the Reclamation law, stating: 2. Water Rights Under Early Version of Reclamation Act. Although the original version of the Reclamation Act expressly provided that the title to reservoirs and irrigation works would remain in the government, (unless otherwise provided), the Reclamation Act, as well as

2

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 7 of 16

its various subsequent amendments, was vague at best regarding the ownership of the water rights made available by the project. The regulations pertaining to the implementation of provisions of the Act, however, do shed some light on the ownership of water rights. In practice, under the Reclamation Act, the Secretary of the Interior would apply with the state for the water rights to be developed under the project in accordance with state law procedures governing water rights. Ultimately a water right or rights for the entire project would be issued in the name of the United States. Entrymen and private landowners within the project area would make application for water rights and enter into separate contracts with the Secretary for the payment of installments and the terms and conditions of delivery. Following the satisfaction of installments, except continuing operation and maintenance charges, entrymen within the project would be issued a patent for the land with appurtenant water rights. Pre-existing landowners within the project would be issued water right certificates evidencing a water right subject to a lien by the United States for continuing operation and maintenance charges. Section 5 of the Reclamation Act provided: No right to the use of water for land in private ownership shall be sold for a tract exceeding one hundred and sixty acres to any one land owner, and no such sale shall be made to any land owner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefore are made (emphasis added). Section 8 of the Act provided: That nothing in this Act shall be construed as affecting or intending to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use or distribution of water used in irrigation, or any vested rights acquired there under, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed inconformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any land owner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, that the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and the beneficial use shall be the basis, the measure, and the limitation of the right (emphasis added). Although the Reclamation Act has been amended and supplemented since its enactment, none of the amendments expressly alter, supplement or

3

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 8 of 16

clarify treatment of water rights as expressed in the original version of the Act. The early regulations governing the implementation of the Reclamation Act did address ownership of water rights. The Department of Interior, General Reclamation Circular, Laws and Regulations Relating to the Reclamation of Arid Lands by the United States (General Reclamation Circular), approved May 18, 1916, reported at 45 Pub. Lands Dec. 385 (1916), specifically delineated between entrymen who entered project lands under the homestead provisions of the reclamation act and private landowners or those who entered project lands pursuant to homestead or other entry laws prior to the reclamation withdrawal for the project. In the case of lands held in private ownership and homestead entries made prior to the reclamation withdrawal, following proof of reclamation and payment of charges, a "final water right certificate" would issue. The regulations provide "[t]he execution of a final water right certificate has the effect of vesting in the water-right applicant absolute title to the water right involved, subject in case of partial payment to a lien for the payment of all sums still due, and in all cases to the payment of annual charges for operation and maintenance." General Reclamation Circular at 19, ¶ 64 (emphasis added). In the case of homestead entries made pursuant to the Reclamation Act, following proof of compliance (satisfaction of reclamation and payment of charges) a patent, subject to a lien for continuing charges, could then issue. Id. at 19, ¶ 62. Final water right certificates were not required and not issued for lands entered under the provisions of the Reclamation Act, entries on ceded Indian lands and desert-land entries. However, the "patent in each of such cases carries with it the water right to which the lands patented are entitled." Id. at 20, ¶ 70. As to all landowners or entrymen within the project the regulations provided: The purpose of the reclamation law is to secure the reclamation of arid or semi-arid lands and to render them productive, and section 8 [of the Reclamation Act] declares that the right to the use of the water acquired under this act shall be appurtenant to the land irrigated and that `beneficial use shall be the basis, the measure, and the limit of the right.' There can be no beneficial use of water for irrigation until it is actually applied to reclamation of the land. The final and only conclusive test of reclamation is production. This does not necessarily mean the maturing of a crop, but does mean the securing of actual growth of a crop. The requirement as to reclamation imposed upon lands under homestead entries applies likewise to lands in private ownership and land entered prior to the withdrawal ­ namely, that the landowner shall reclaim his land as required by law, and no right to the use of water will permanently attach until such

4

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 9 of 16

reclamation has been shown. Id. at 23, ¶ 79 (emphasis added). The subsequent amendments to the Reclamation Act regarding the administration of repayment and water service contracts (see infra A.2.) also refer to the contracting party having a "permanent right to such share or quantity" upon completion of payment. 43 U.S.C. § 485h-1(6). The Reclamation Act is somewhat vague as to the specifics of the ownership of water rights. However, it is still apparent from the original version of the Act, its subsequent amendments, accompanying regulations and the early practices of the BOR that landowners within the project were intended to have an interest in the water right, even though the right for the entire project was licensed or decreed in the name of the United States. 3. Subsequent Amendments, Irrigation Districts and Delivery Contracts In 1922, the original version of the Reclamation Act was amended to allow the Secretary to contract with irrigation districts established pursuant to state law and dispense with the water right applications on the part of individual water users. Act of May 15, 1922, ch.190, § 46, 42 Stat. 541 (current version at 43 U.S.C. § 511 (2003)). In 1926, the Act was further amended to require that all future BOR contracts be made with irrigation districts only. Act of May 25, 1926, ch.383, § 46, 44 Stat. 639, 649 (current version at 43 U.S.C. § 423e (2003)). The Act was later broadened in 1939 to allow contracts to be entered into with other types of water delivery entities and associations organized pursuant to state law under three essentially standard types of contracts based on the repayment status of the project on the Act of Aug 4, 1939, ch.418, § 2, 53 Stat. 1187 (current version at 43 U.S.C. § 485g (2003)). * * * The statute provides for a "permanent right" upon completion of payment of amount assigned subject to payment of appropriate share of costs for operation and maintenance. 43 U.S.C. § 485h-1(4). * * * None of the statutes authorizing the different types of contracts expressly alter the treatment of water rights contained in the original version of the Act or its accompanying regulations. The statutes authorizing repayment and service contracts also speak in terms of permanent or perpetual rights. None of the parties argue that the ownership interest at issue is contingent

5

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 10 of 16

on the type of delivery contract entered into with the BOR. This question was specifically asked by the Court at oral argument. * * * C. The United States Supreme Court has Defined the Relationship Between the BOR and the End Water Users as Concerns the Water Rights Developed under the Project. On three separate occasions the United States Supreme Court has addressed the issue of the ownership of water rights developed under reclamation projects as between the BOR and the landowners within the project. The Supreme Court's treatment of the rights is consistent with the historical treatment of project rights by the BOR. Justice Rehnquist observed in California v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978): The history of the relationship between the Federal Government and the States in the reclamation of the arid lands and the western states is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress. Recognition of the right of a State to control waters within its boundaries is explicit in Section 8 of the Reclamation Act, 43 U.S.C.A. §383 . . . . Further, §372 of the Act provides that use of water from reclamation projects is appurtenant to the land irrigated . . . . It is not surprising, therefore, that the United States Supreme Court has ruled on three separate occasions spanning nearly fifty years that the land owners who use water diverted, stored and delivered by the United States pursuant to the Reclamation Act have an ownership interest in water rights associated with that water. The nature of that water right has been defined in the cases. Memorandum Decision at 14-23, In re Snake River Adjudication, No. 39576 (Idaho Dist. Ct. Sept. 2, 2004) (Consolidated Subcase No. 91-63) (attached as Ex. A). After describing in detail the trilogy of Supreme Court cases holding that the landowner possesses a property right in the reclamation project water appurtenant to his land, the court concludes:

6

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 11 of 16

The Court's ruling in Nevada v. United States summarizes prior rulings and plainly holds that the interest of the United States in water rights acquired for irrigation use in projects constructed and operated pursuant to the Reclamation Act of 1902 is a nominal interest only and that the land owners within the project own a beneficial interest in those water rights. For this Court to rule otherwise would "do away with half a century of decided case law relating to the Reclamation Act of 1902." Accordingly, this Court rules that the United States owns only a "nominal interest" or legal title to the water rights in question and that those rights are held by the United States for the owners of the beneficial interest--the land owners within the Reclamation Projects. * * * The BOR argues that any interest that the Irrigation Entities may have is limited to the contract and that any relief for the BOR's failure to perform is limited to a breach of contract action. The problem with this argument is that was the very issue and concern which was addressed by the United States Supreme Court in Ickes v. Fox, Nebraska v. Wyoming, and Nevada v. United States. Those cases specifically defined the relationship between the BOR and the project water users. The very essence of those decisions is that the project water users have more than simply a rental or contractual interest in the project rights. As discussed earlier, the Act, the regulations issued in accordance with the Act and the solicitor's opinion regarding the treatment of project water in general adjudications all support this conclusion. Therefore, the BOR is not free to do as it pleases with the water and leave the water users to resort to a breach of contract action against the BOR as the sole remedy. Simply put, the relationship between the BOR and the Irrigation Entities or end water user is not the same as the relationship between a commercial ditch company and the water users to which it distributes water. The Court views the relationship between the BOR and the Irrigation Entities more akin to the relationship between an irrigation district and the water users within the district, wherein water rights are decreed in the name of the irrigation district and by law the irrigation district holds the rights in trust for the water users within the district. See I.C. § 43-316. Since the Reclamation Act has passed, it has been interpreted in this fashion. * * * The Court finds that the position the BOR advocates is inconsistent with the law as it stood either before or after Ickes. Even shortly after the commencement of the SRBA the Solicitor for the Department of Interior concluded that Nevada v. United States reaffirmed the existing state of the

7

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 12 of 16

law. Filings of Claims for Water Rights in General Stream Adjudications, 97 I.D. 21 (1989). To the extent the Court is now being asked to clarify existing law against which the water right holders were entitled to rely, the Court does not view that as a collateral attack on a prior license or decree. The Court views the matter as a clarification of a prior decree or license. * * * 2. The Motion for Summary Judgment of the United States is DENIED. The court rules that the United States Department of Interior, Bureau of Reclamation holds legal title to the water rights at issue subject, to the equitable or beneficial interest of the landowners within the irrigation districts described herein. * * * 5. The Motion for Summary Judgment of Pioneer Irrigation District and Settlers Irrigation District is GRANTED IN PART AND DENIED IN PART. The water rights claimed by these entities (63-3614A, 63-3618A, 63-5262A, 63-3614B, 63-3618B and 63- 5262B) shall be disallowed. Provided, however, that Water Rights 63-03614, 63-03618 and 63-303 shall be decreed in the name of the United States of America acting through the Bureau of Reclamation with a remark to the effect that the beneficial use of the water represented by the decree is held in trust for the landowners within the respective irrigation districts as a matter of law and pursuant to contracts between the Bureau of Reclamation and the Irrigation Districts. Memorandum Decision at 27-32, In re Snake River Adjudication, No. 39576 (Idaho Dist. Ct. Sept. 2, 2004) (Consolidated Subcase No. 91-63) (attached as Ex. A). On March 4, 2005, the Idaho District Court's Final Order required the following be added to the decree regarding the Reclamation Project water rights at issue in the case: Although the name of the United States of America acting through the Bureau of Reclamation appears in the Name and Address section of this partial decree, the ownership of this water right is divided. The United States Bureau of Reclamation holds nominal legal title. Beneficial or equitable title to this water right is held in trust by the irrigation organizations, in the quantities and/or percentages specified in the contracts between the Bureau of Reclamation and the irrigation organizations, for the benefit of the landowners entitled to receive distribution of this water from the respective irrigation organizations pursuant to Idaho law. As a matter of law, this interest is appurtenant to

8

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 13 of 16

the lands within the boundaries of or served by such irrigation organization. The ownership of this water right is derived from law and is not based exclusively on the contracts between the Bureau of Reclamation and the irrigation organizations. Final Order, In re Snake River Adjudication, No. 39576 (Idaho Dist. Ct. Mar. 4, 2005) (Consolidated Subcase No. 91-63) (attached as Ex. B). 3. Commentators on Water Rights In 2004, commentators observed and explained the nature of water rights. For instance, in a 2004 law review article, an assistant professor of law at the University of Wyoming explained the nature of Western water rights: In the United States, the laws governing water allocation and use are chiefly state laws, and the water laws of the western states are primarily based on the doctrine of prior appropriation. In these states, water is officially a public resource, but the states have recognized permanent property rights in the private use of that resource. These water rights typically last forever as long as they are used; that is, a water right holder who actually exercises her right to use water will not lose it. * * * It has long been said that "beneficial use is the basis, the measure, and the limit of a water right" under prior appropriation. This phrase means two things: first, a user obtains a right by applying water to a so-called "beneficial use," an activity that the law recognizes as providing some social benefit. Second, by applying water to a specific beneficial purpose, the water user obtains a right to that quantity of water reasonably needed for that specific purpose and no more; "waste" of water is officially prohibited. * * * In sum, western water law in practice provides nearly complete protection to existing water rights . . . . * * * Western water law provides similarly strong protection to those who hold water rights. As discussed above, appropriators who divert water and apply it to beneficial use obtain water rights that last forever, so long as

9

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 14 of 16

they are used. Though the water itself is by law a public resource and water rights provide only a right of use, these rights are considered private property. * * * At its core, prior appropriation law still recognizes permanent property rights based on beneficial use, gives highest priority to the oldest water rights, and charges nothing for private use of a public resource. . . . [T]he water laws essentially allocate a natural resource by creating a system of property rights authorizing its use . . . . Reed D. Benson, So Much Conflict, Yet So Much in Common: Considering the Similarities Between Western Water Law and the Endangered Species Act, 44 Nat. Resources J. 29, 35-37, 68-69 (2004) (footnote citations omitted). Another commentator recently stated with respect to Colorado water rights and Western water law in general: According to state law, Western states nominally "own" water rights which they hold in trust for water right holders. . . . In practice, Colorado River water rights are largely privatized. Private parties hold property rights, albeit imperfect ones, in water. They hold "use" rights to a certain volume of water, subject to forfeiture if the water use is not "reasonable and beneficial." They also hold "exclusion" rights, the right to enjoin any other water right users' activity that infringes on their right. * * * [A]s a result of the prior appropriation doctrine and the long-term lowpriced contracts granted by the Bureau of Reclamation to the agricultural industry, the majority of Western water rights are vested in the agricultural industry. Irrigation alone utilizes 80 to 90 percent of the water of the West. Megan Hennessy, Colorado River Water Rights: Property Rights in Transition, 71 U. Chi. L. Rev. 1661, 1665-66, 1672 (2004). 4. Klamath Water Bank, http://www.usbr.gov/mp/kbao/pilot_water_bank/ index.html Yet another indicia of a property right is ownership, the right to sell, and the existence of a market for the property. In 2004 and again in 2005, the Bureau of 10

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 15 of 16

Reclamation has entered into contracts to purchase the annual water rights of individual Klamath Project water users. See, e.g., Press Release, Bureau of Reclamation, Mid Pacific Region, Reclamation Expands Opportunities to Participate in Klamath Basin 2005 Pilot Water Bank Programs (February 11, 2005), available at http://www.usbr.gov/newsroom/newsrelease/detail.cfm?RecordID=4021 (hereinafter "Press Release"). Through its water bank and in exchange for payment, the Bureau pays water users either for supplying water to the bank or for forgoing irrigating their land. Id. The Bureau spent approximately $10 million in 2004 to fill the water bank to its thenrequired 75,000-acre foot level, paying between $63.75 and $200 per acre foot of water. See Dylan Darling, Water Bank Applications Flood Bureau, Klamath Falls Ore. Herald & News, January 31, 2005 (stating that the Bureau spent an average of $146 per acre-foot for the required 75,000 acre feet). Figures for 2005 are not yet available because the application deadline was February 24, 2005. See Press Release. The draft 2005 contract, which is identical to the 2004 contract, exchanges the landowner's right to receive Klamath Project water in exchange for payment of a sum per acre-foot: The Landowner shall not irrigate by any method [Sum Of ACRES] acres of land identified as Unit [Application] . . . hereinafter referred to as the Land . . . . The Landowner affirms that he is the legal owner of the Land . . . and has the right to apply surface irrigation water to the Land. Reclamation shall pay the Landowner [Contract Amount] in a lump sum, by direct deposit to the Landowner's designated account, no later than November 30, 2005. This amount is based on the Landowner's bid price of [Bid Price] per acre for [Sum Of ACRES] acres, and when paid to the Landowner shall be the total due to the Landowner under this Contract. Draft Contract for the 2005 Klamath Basin Pilot Water Bank, Dryland Operation, §§ 2(A), 2(G), available at

11

Case 1:01-cv-00591-FMA

Document 220

Filed 03/14/2005

Page 16 of 16

http://www.usbr.gov/mp/kbao/pilot_water_bank/docs/Contract_Draft_Groundwater_Ope ration_2005.pdf. Thus, the Bureau pays individual water users to relinquish their rights to use water.1 Conclusion Based on these additional authorities and the authorities cited in their prior briefs, Plaintiffs ask this Court to grant their Cross-Motion for Partial Summary Judgment and deny Defendant's Cross-Motion for Partial Summary Judgment. Respectfully submitted,

s/ Nancie G. Marzulla Roger J. Marzulla Nancie G. Marzulla MARZULLA & MARZULLA 1350 Connecticut Ave., N.W. Suite 410 Washington, D.C. 20036 202-822-6760 202-822-6774 (facsimile) Dated: March 14, 2005 Counsel for Plaintiffs

The target water purchase for the 2005 water bank is 100,000 acre-feet, see Darling, supra, which, at last year's average price, would run the Bureau of Reclamation over $14.6 million.

1

12