`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`LONNY E. BALEY, ET AL., JOHN ANDERSON
`FARMS, INC., ET AL.,
`Plaintiffs-Appellants
`
`v.
`
`UNITED STATES, PACIFIC COAST FEDERATION
`OF FISHERMEN’S ASSOCIATIONS,
`Defendants-Appellees
`______________________
`
`2018-1323, 2018-1325
`______________________
`
`Appeals from the United States Court of Federal
`Claims in Nos. 1:01-cv-00591-MBH, 1:07-cv-00194-MBH,
`1:07-cv-19401-MBH, 1:07-cv-19402-MBH, 1:07-cv-19403-
`MBH, 1:07-cv-19404-MBH, 1:07-cv-19405-MBH, 1:07-cv-
`19406-MBH, 1:07-cv-19407-MBH, 1:07-cv-19408-MBH,
`1:07-cv-19409-MBH, 1:07-cv-19410-MBH, 1:07-cv-19411-
`MBH, 1:07-cv-19412-MBH, 1:07-cv-19413-MBH, 1:07-cv-
`19414-MBH, 1:07-cv-19415-MBH, 1:07-cv-19416-MBH,
`1:07-cv-19417-MBH, 1:07-cv-19418-MBH, 1:07-cv-19419-
`MBH, 1:07-cv-19420-MBH, Senior Judge Marian Blank
`Horn.
`
`______________________
`
`Decided: November 14, 2019
`______________________
`
`ROGER J. MARZULLA, Marzulla Law, LLC, Washington,
`DC, argued for plaintiffs-appellants Lonny E. Baley, Mark
`
`
`
`2
`
`BALEY v. UNITED STATES
`
`R. Trotman, Baley Trotman Farms, James L. Moore,
`Cheryl L. Moore, Daniel G. Chin, Deloris D. Chin, Wong
`Potatoes, Inc., Michael J. Byrne, Byrne Brothers, John An-
`derson Farms, Inc., Buckingham Family Trust, Eileen
`Buckingham, Keith Buckingham, Shelly Buckingham,
`Constance Frank, John Frank, Hill Land and Cattle Co.,
`Inc., Jeff Hunter, Sandra Hunter, McVay Farms, Inc., Bar-
`bara McVay, Matthew K. McVay, Michael McVay, Ronald
`McVay, Suzan McVay, Tatiana V. McVay, Henry O'Keeffe,
`Patricia O'Keeffe, Shasta View Produce, Inc., Edwin
`Stastny, Jr., All Plaintiffs. Also represented by NANCIE
`GAIL MARZULLA. Plaintiffs-appellants John Anderson
`Farms, Inc., Buckingham Family Trust, Eileen Bucking-
`ham, Keith Buckingham, Shelly Buckingham, Constance
`Frank, John Frank, Hill Land and Cattle Co., Inc., Jeff
`Hunter, Sandra Hunter, McVay Farms, Inc., Barbara
`McVay, Matthew K. McVay, Michael McVay, Ronald
`McVay, Suzan McVay, Tatiana V. McVay, Henry O'Keeffe,
`Patricia O'Keeffe, Shasta View Produce, Inc., Edwin
`Stastny, Jr. also represented by ALAN IRVING SALTMAN,
`Smith, Currie & Hancock LLP, Washington, DC.
`
` JOHN LUTHER SMELTZER, Environment and Natural
`Resources Division, United States Department of Justice,
`Washington, DC, argued for defendant-appellee United
`States. Also represented by ELIZABETH ANN PETERSON,
`ERIC GRANT, JEFFREY H. WOOD.
`
` TODD D. TRUE, Earthjustice, Seattle, WA, argued for
`defendant-appellee Pacific Coast Federation of Fisher-
`men's Associations. Also represented by STEPHANIE
`KATHLEEN TSOSIE.
`
` CHARLES T. DUMARS, Law & Resource Planning Asso-
`ciates, PC, Albuquerque, NM, argued for amicus curiae The
`Middle Rio Grande Conservancy District. Also represented
`by TANYA L. SCOTT; LORNA M. WIGGINS, Wiggins, Williams
`& Wiggins, PC, Albuquerque, NM.
`
`
`
`BALEY v. UNITED STATES
`
`3
`
`
` CRAIG A. PARTON, Price, Postel & Parma LLP, Santa
`Barbara, CA, for amici curiae City of Fresno, Arvin-Edison
`Water Storage District, Chowchilla Water District, Delano-
`Earlimart Irrigation District, Exeter Irrigation District,
`Ivanhoe Irrigation District, Lindmore Irrigation District,
`Lindsay-Strathmore Irrigation District, Lower Tule River
`Irrigation District, Orange Cove Irrigation District, Porter-
`ville Irrigation District, Saucelito Irrigation District,
`Shafter-Wasco Irrigation District, Southern San Joaquin
`Municipal Utility District, Stone Corral Irrigation District,
`Terra Bella Irrigation District, Tulare Irrigation District,
`Kern Tulare Water District, Kaweah Delta Water Conser-
`vation District, Tea Pot Dome Water District, Fresno Irri-
`gation District, Friant Water Authority.
`
` DANIEL LUCAS, Office of the Attorney General, Califor-
`nia Department of Justice, Los Angeles, CA, for amicus cu-
`riae California State Water Resources Control Board. Also
`represented by XAVIER BECERRA, ROBERT W. BYRNE, ERIC
`M. KATZ, MELINDA PILLING, San Francisco, CA; JOSHUA A.
`KLEIN, Oakland, CA.
`
` JAMES HUFFMAN, Portland, OR, for amici curiae Family
`Farm Alliance, National Water Resources Association.
`
` DAVID E. FILIPPI, Stoel Rives LLP, Portland, OR, for
`amicus curiae Oregon Water Resources Congress. Also
`represented by KIRK BENNY MAAG; STEVEN L. SHROPSHIRE,
`Jordan Ramis PC, Bend, OR.
`
` DOUGLAS W. MACDOUGAL, Marten Law PLLC, Port-
`land, OR, for amici curiae Oregon Farm Bureau Federa-
`tion, California Farm Bureau Federation, Idaho Farm
`Bureau Federation, New Mexico Farm and Livestock Bu-
`reau, Colorado Farm Bureau, Nevada Farm Bureau, Utah
`Farm Bureau Federation, Wyoming Farm Bureau Federa-
`tion. Also represented by SARAH ELIZABETH PETERSON,
`
`
`
`4
`
`BALEY v. UNITED STATES
`
`Coblentz Patch Duffy & Bass LLP, San Francisco, CA.
`
` DAVID R.E. ALADJEM, Downey Brand LLP, Sacramento,
`CA, for amicus curiae Association of California Water
`Agencies. Also represented by SAMUEL BIVINS, AVALON J.
`FITZGERALD, MEREDITH E. NIKKEL.
`
` DENISE FJORDBECK, Oregon Department of Justice, Sa-
`lem, OR, for amicus curiae State of Oregon. Also repre-
`sented by BENJAMIN N. GUTMAN, ELLEN F. ROSENBLUM.
`
` ROBERT T. ANDERSON, University of Washington School
`of Law, for amici curiae Robert T. Anderson, Reed D. Ben-
`son, Michael C. Blumm, Barbara Cosens, Sarah Krakoff,
`John D. Leshy, Monte Mills, Joseph William Singer, A. Dan
`Tarlock, Charles F. Wilkinson, Jeanette Wolfley. Amici cu-
`riae Michael C. Blumm, John D. Leshy, also represented
`by DAVID R. OWEN, Hastings College of Law, University of
`California, San Francisco, CA,
`
` DAVID R. OWEN, Hastings College of Law, University of
`California, San Francisco, CA, for amici curiae Robert
`Abrams, Craig Anthony Arnold, Karrigan Bork, Lee P.
`Breckenridge, Michelle Bryan, Robin K. Craig, Daniel A.
`Farber, Richard M. Frank, Eric Freyfogle, Robert L. Glicks-
`man, Sean B. Hecht, Oliver A. Houck, Blake Hudson,
`Christine A. Klein, Rhett Larson, Timothy M. Mulvaney,
`David R. Owen, Patrick Parenteau, Justin Pidot, Antonio
`Rossmann, J.B. Ruhl, Erin Ryan, Mark Squillace, David
`Takacs, Gerald Torres, Sandra Zellmer, Michael Pappas.
`
` SUSAN Y. NOE, Native American Rights Fund, Boulder,
`CO, for amicus curiae Klamath Tribes.
`
` THOMAS PAUL SCHLOSSER, Morisset Schlosser Jozwiak
`& Somerville, Seattle, WA, for amicus curiae Hoopa Valley
`Tribe. Also represented by THANE D. SOMERVILLE.
`
`
`
`
`BALEY v. UNITED STATES
`
`5
`
` JOHN ECHEVERRIA, Vermont Law School, South Royal-
`ton, VT, for amicus curiae Natural Resources Defense
`Council.
`
` AMY CHRISTINE CORDALIS, Yurok Tribe, Klamath, CA,
`for amicus curiae Yurok Tribe.
` ______________________
`
`Before NEWMAN, SCHALL, and CHEN, Circuit Judges.
`SCHALL, Circuit Judge.
`INTRODUCTION AND DECISION
`This case arises out of the Klamath River Basin recla-
`mation project (“the Klamath Project” or “the Project”).
`The Project straddles the southern Oregon and northern
`California borders. Key features of the Project are Upper
`Klamath Lake in Oregon, where water is stored for the Pro-
`ject, and the Klamath River. The Klamath River rises at
`the south end of Upper Klamath Lake and flows from Ore-
`gon into California. The river eventually enters the Pacific
`Ocean near Klamath, California. The Project supplies wa-
`ter to hundreds of farms, comprising approximately
`200,000 acres of agricultural land. The Project is managed
`and operated by the United States Department of the Inte-
`rior’s Bureau of Reclamation (“the Bureau of Reclamation”
`or “the Bureau”). The Bureau of Reclamation also manages
`the Klamath Project to protect the tribal trust resources of
`several Native American Tribes.
`In 2001, the Bureau temporarily halted water deliver-
`ies to farmers and irrigation districts served by the Project.
`It took this action in order to meet the requirements of the
`Endangered Species Act, 16 U.S.C. § 1531 et seq. (2000)
`(“the ESA”), as outlined in Biological Opinions from the
`United States Fish and Wildlife Service (“the FWS”) and
`the United States National Marine Fisheries Service (“the
`NMFS”). It also took this action in order to meet its tribal
`trust obligations.
`
`
`
`6
`
`BALEY v. UNITED STATES
`
`In October of 2001, fourteen irrigation organizations
`and thirteen individual farmers filed suit in the United
`States Court of Federal Claims in Klamath Irrigation Dis-
`trict v. United States, No. 1:01-cv-00591. In their second
`amended complaint, filed on January 31, 2005, the plain-
`tiffs alleged that the Bureau of Reclamation’s action in
`temporarily halting their water deliveries in 2001 consti-
`tuted a taking of their water rights without just compensa-
`tion, in violation of the Fifth Amendment to the United
`States Constitution. They also alleged that the Bureau’s
`action impaired their water rights under the Klamath
`River Basin Compact (“the Klamath Compact” or “the Com-
`pact”).1 The plaintiffs further alleged that the Bureau’s ac-
`tion breached certain water delivery contracts they had
`
`1 The Klamath Compact is a congressionally-ap-
`proved interstate compact between California and Oregon.
`See 71 Stat. 497–508 (1957). The Compact’s purposes are
`to “facilitate and promote the orderly, integrated, and com-
`prehensive development, use, conservation, and control [of
`the water resources of the Klamath River Basin] for vari-
`ous purposes” and to “further intergovernmental coopera-
`tion and comity with respect to these resources and
`programs for their use and development and to remove
`causes of present and future controversies.” Id. at 497.
`Section XIII of the Compact states that ‘‘[t]he United
`States shall not, without payment of just compensation,
`impair any rights to the use of water for [domestic or irri-
`gation purposes] within the Upper Klamath River Basin.”
`Id. at 507. However, this obligation is limited to rights ac-
`quired after the effective date of the Compact. Id. With
`respect to the rights of Native American tribes, Article X of
`the Compact states: “Nothing in this compact shall be
`deemed . . . [t]o deprive any individual Indian, tribe, band
`or community of Indians of any rights, privileges, or im-
`munities afforded under Federal treaty, agreement or stat-
`ute.” Id. at 505.
`
`
`
`BALEY v. UNITED STATES
`
`7
`
`with the Bureau. The Court of Federal Claims exercised
`jurisdiction pursuant to 28 U.S.C. § 1491(a)(1).2
`On August 31, 2005, the Court of Federal Claims
`granted the government summary judgment on the plain-
`tiffs’ taking and Klamath Compact claims. See generally
`Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504
`(2005). Thereafter, on March 16, 2007, the court also
`granted the government summary judgment on the plain-
`tiffs’ breach of contract claims. See generally Klamath Ir-
`rigation Dist. v. United States, 75 Fed. Cl. 677 (2007).3
`Based upon these two summary judgment decisions, the
`court entered judgment dismissing the plaintiffs’ taking
`claims, their claims arising under the Compact, and their
`breach of contract claims. The plaintiffs appealed to this
`court.
`On July 16, 2008, we issued an order in which we cer-
`tified three questions to the Oregon Supreme Court. The
`questions related to the plaintiffs’ water rights under Ore-
`gon law. See Klamath Irrigation Dist. v. United States, 532
`F.3d 1376 (Fed. Cir. 2008) (“Certification Order”). We is-
`sued the Certification Order pursuant to a procedure
`
`2 On February 28, 2005, the Court of Federal Claims
`granted the motion of the Pacific Coast Federation of Fish-
`ermen’s Associations (“the Federation”) to intervene as a
`defendant. Klamath Irrigation Dist. v. United States, 64
`Fed. Cl. 328, 331 (2005). The Federation represents ap-
`proximately 3,000 small commercial fishing operators who
`derive income from Pacific salmon that spawn in the Kla-
`math River Basin. Id.
`3 The Federation joined the government’s motion for
`summary judgment on the breach of contract claims. No-
`tice of Intervenor-Def. Pac. Coast Fed’n of Fishermen’s
`Ass’ns’ Joinder in Federal Defs.’ Mot. for Summ. J. on Con-
`tract Claims, No. 1:01-cv-00591 (Ct. Fed. Claims Feb. 17,
`2006), ECF No. 263.
`
`
`
`8
`
`BALEY v. UNITED STATES
`
`whereby unsettled questions of state law may be certified
`to the Oregon Supreme Court. Id. at 1377; see Or. Rev.
`Stat. §§ 28.200–28.255 (2007). Pending action by the Ore-
`gon Supreme Court, we withheld decision on all of the
`plaintiffs’ claims. The Oregon Supreme Court accepted the
`case for certification, Klamath Irrigation Dist. v. United
`States, 202 P.3d 159, 165 (Or. 2009), and on March 11,
`2010, the court rendered its decision answering our certi-
`fied questions. See Klamath Irrigation Dist. v. United
`States, 227 P.3d 1145 (Or. 2010) (en banc) (“Certification
`Decision”). Following receipt of the Certification Decision,
`we vacated the judgment of the Court of Federal Claims
`and remanded the case to the court for further proceedings.
`See Klamath Irrigation Dist. v. United States, 635 F.3d 505,
`522 (Fed. Cir. 2011) (“Remand Decision”).
`Following our decision and remand, the Court of Fed-
`eral Claims entered several orders relevant to the Klamath
`Irrigation District case. It also entered several orders rel-
`evant to a related case filed by individual water user plain-
`tiffs, John Anderson Farms, et al. v. United States, No.
`1:07-cv-00194. First, in an order dated November 22, 2013,
`the court dismissed the breach of contract claims of three
`of the Klamath Irrigation District plaintiffs for lack of ju-
`risdiction. Klamath Irrigation Dist. v. United States, 113
`Fed. Cl. 688, 718 (2013). Thereafter, on June 3, 2014, the
`court granted the remaining Klamath Irrigation District
`plaintiffs’ motion to voluntarily dismiss all their pending
`breach of contract claims. No. 1:01-cv-00591, ECF No. 343.
`Similarly, on March 13, 2014, the court granted a motion
`by the plaintiffs in John Anderson Farms to voluntarily
`dismiss their breach of contract claims. No. 1:07-cv-00194,
`ECF No. 65. Next, on January 12, 2016, the court issued
`an order consolidating the Klamath Irrigation District and
`John Anderson Farms cases. Subsequently, the parties
`filed cross-motions in limine on the question of whether the
`plaintiffs’ taking claims should be analyzed as potential
`physical or regulatory takings. The plaintiffs urged a
`
`
`
`BALEY v. UNITED STATES
`
`9
`
`physical takings approach. On December 21, 2016, the
`court issued an opinion ruling in favor of the plaintiffs.
`Klamath Irrigation Dist. v. United States, 129 Fed. Cl. 722
`(2016). In its opinion, the court held that “the govern-
`ment’s actions in the present cases ‘should be analyzed un-
`der the physical takings rubric.’” Id. at 737 (quoting
`Casitas Mun. Water Dist. v. United States, 543 F.3d 1276,
`1296 (Fed. Cir. 2008)). The court’s rulings left for trial the
`plaintiffs’ claims that the Bureau of Reclamation’s action
`in 2001 constituted a taking and/or a violation of the Kla-
`math Compact.
`Finally, at a pretrial conference on January 10, 2017,
`the court granted a motion for class certification. The cer-
`tified class included, as opt-in plaintiffs, all persons who
`owned or leased land within, or who received water from,
`the fourteen plaintiff irrigation organizations and who
`claimed an appurtenant right to Project water4 and alleged
`a Fifth Amendment taking and an impairment of their
`rights under the Compact.
`The Court of Federal Claims held a ten-day trial com-
`mencing on January 30, 2017. Following the trial and post-
`trial briefing, all the irrigation organization plaintiffs
`moved to voluntarily dismiss their claims. The court
`granted the motion, which left as plaintiffs the surviving
`individual farmers and the class action opt-in plaintiffs.
`This resulted in the recaptioning of the consolidated case
`to Lonny Baley, et al. v. United States. Thereafter, on Sep-
`tember 29, 2017, the court issued its final decision in the
`case. Baley v. United States, 134 Fed. Cl. 619 (2017)
`
`4
`In the context of real property, something is “ap-
`purtenant” to land “when it is by right used with the land
`for its benefit.” Appurtenant, Black’s Law Dictionary (6th
`ed. 1990); see also Appurtenant, Black’s Law Dictionary
`(11th ed. 2019) (defining appurtenant as “[a]nnexed to a
`more important thing”).
`
`
`
`10
`
`BALEY v. UNITED STATES
`
`(“Baley”). In its decision, before addressing the plaintiffs’
`taking and Compact claims, the court made several rul-
`ings. Three of those rulings disposed of the claims of vari-
`ous plaintiffs. First, the court dismissed the claims of any
`plaintiffs deriving water rights from the Van Brimmer
`Ditch Company. Id. at 645–52.5 Second, the court barred
`the claims of certain of the plaintiffs who receive water un-
`der what are called “Warren Act Contracts.” Id. at 656–
`
`5 The Van Brimmer Ditch Company is not an irriga-
`tion district, but an Oregon business corporation that de-
`livers irrigation water to landowners. Baley, 134 Fed. Cl.
`at 632. The company traces its history to the 1880s, when
`its founders began drawing water from White Lake. Id.
`White Lake was associated with Lower Klamath Lake,
`which is along the border between Oregon and California.
`See id. The subsequent creation of the Klamath Project re-
`sulted in the draining of White Lake and Lower Klamath
`Lake (which is now a National Wildlife Refuge). Id.; see
`also U.S. DEP’T OF THE INTERIOR, Ground-Water Hydrology
`of the Upper Klamath Basin, Oregon and California at 1–
`2, 6 (2010), https://pubs.usgs.gov/sir/2007/5050/. On No-
`vember 6, 1909, the Van Brimmer Ditch Company con-
`tracted with the United States to receive water from Upper
`Klamath Lake. Baley, 134 Fed. Cl. at 632. In its contract,
`the Van Brimmer Ditch Company agreed to “waive[] and
`renounce[] . . . any and all of its riparian rights, in relation
`to the waters and shores of Lower Klamath Lake.” Id. In
`exchange, the United States agreed to “deliver to the Com-
`pany during each and every irrigation season . . . a quan-
`tity of water, not to exceed fifty second feet.” Id. Named
`plaintiffs James and Cheryl Moore are landowner-share-
`holders in the Van Brimmer Ditch Company. In 2001, they
`owned 135 shares of stock in the company, each of which
`corresponded to one acre of irrigable land, with an appur-
`tenant right to receive irrigation water from the company.
`Id.
`
`
`
`BALEY v. UNITED STATES
`
`11
`
`59.6 And third, the court ruled that plaintiffs who receive
`their water through leases for lands in the National Wild-
`life Refuges that are located within the Klamath Project
`were barred from recovering damages from the govern-
`ment based upon the denial of water because of certain pro-
`visions in their leases. Id. at 659.
`The court turned finally to the taking and Compact
`claims of the remaining plaintiffs. After examining the
`facts and what it viewed to be the pertinent law, the court
`held that Klamath Project operations in 2001 did not result
`in takings or violate the plaintiffs’ rights under the Com-
`pact because the waters retained in Upper Klamath Lake
`and the waters in the Klamath River were within the scope
`of federal reserved water rights for tribal fishing that were
`
`
`6 These irrigation contracts were made pursuant to
`the Warren Act of 1911, Pub. L. No. 61-406, 36 Stat. 925
`(codified at 43 U.S.C. §§ 523–25 (2012)). Baley, 134 Fed.
`Cl. at 630. They are between the United States on the one
`hand, and individual water users and irrigation districts
`on the other. Id. The contracts cover lands that were not
`part of the Klamath Project when it was originally devel-
`oped and contain language stating that water rights ac-
`quired under the contracts are inferior to prior rights
`reserved for the lands of the Klamath Project. Id. The
`Warren Act contracts also include language immunizing
`the United States from liability in the event of water short-
`ages, although this language takes two different forms. Id.
`at 631. The contracts with individuals and certain irriga-
`tion districts include language limiting the United States’
`liability for shortages caused by droughts or “other cause.”
`Id. at 631–32. Contracts with other irrigation districts do
`not include the “other cause” language. Id. at 631. The
`Court of Federal Claims held that the claims of plaintiffs
`whose Warren Act contracts included the “other cause” lan-
`guage were barred. Id. at 658–59.
`
`
`
`12
`
`BALEY v. UNITED STATES
`
`senior in priority to the plaintiffs’ water rights. Baley, 134
`Fed. Cl. at 659–80.
`Following the entry of judgment in favor of the govern-
`ment on October 24, 2017, the plaintiffs timely appealed.
`We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
`For the reasons set forth below, we now affirm the judg-
`ment of the Court of Federal Claims.
`BACKGROUND
`I. The Klamath Project
` The Reclamation Act of 1902, Pub. L. No. 57-161, 32
`Stat. 388 (codified, as amended, at 43 U.S.C. § 371 et seq.)
`(“the Reclamation Act” or “the Act”) “laid the groundwork
`for a vast and ambitious federal program to irrigate the
`arid lands of the western states.” Grant Cty. Black Sands
`Irrigation Dist. v. U.S. Bureau of Reclamation, 579 F.3d
`1345, 1351 (Fed. Cir. 2009).7 Section 8 of the Reclamation
`Act requires the Secretary of the Interior to comply with
`state law regarding the appropriation of water for irriga-
`tion, to the extent such law is not inconsistent with federal
`law. Baley, 134 Fed. Cl. at 626 (citing 43 U.S.C. § 383).
`Relevant to this case, both Oregon and California fol-
`low the doctrine of prior appropriation of water rights. See
`Baley, 134 Fed. Cl. at 669 (citing Irwin v. Phillips, 5 Cal.
`140, 143 (1855) (California); Teel Irrigation Dist. v. Water
`Res. Dep’t of Or., 919 P.2d 1172, 1174 (Or. 1996) (Oregon)).
`Under the prior appropriation doctrine, “diversion and ap-
`plication of water to a beneficial use constitute an appro-
`priation, and entitle the appropriator to a continuing right
`to use the water, to the extent of the appropriation, but not
`
`
`7 Prior to passage of the Reclamation Act, at least
`part of the Klamath Basin was not arid land, but wetlands
`or marshes that were subsequently drained and converted
`to farmland pursuant to the Klamath Project.
`
`
`
`BALEY v. UNITED STATES
`
`13
`
`beyond that reasonably required and actually used. The
`appropriator first in time is prior in right over others upon
`the same stream.” Arizona v. California, 298 U.S. 558,
`565–66 (1936). “[T]he doctrine provides that rights to wa-
`ter for irrigation are perfected and enforced in order of sen-
`iority, starting with the first person to divert water from a
`natural stream and apply it to a beneficial use (or to begin
`such a project, if diligently completed).” Montana v. Wyo-
`ming, 563 U.S. 368, 375–76 (2011) (citing Hinderlider v. La
`Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 98
`(1938); Arizona v. California, 298 U.S. at 565–66; Wyo.
`Const., Art. 8, § 3). “Once such a water right is perfected,
`it is senior to any later appropriators’ rights and may be
`fulfilled entirely before those junior appropriators get any
`water at all.” Id. at 376.
`Subsequent to the passage of the Reclamation Act, on
`February 22, 1905, the Oregon legislature enacted a stat-
`ute (“1905 Oregon Act”) codifying a procedure to assist the
`United States in appropriating water for the irrigation
`works contemplated by the Act. Remand Decision, 635
`F.3d at 508 (citing Or. Gen. Laws, 1905, ch. 228, § 2 (re-
`pealed 1953) and Or. Gen. Laws, 1905, ch. 5, §§ 1–2); Baley,
`134 Fed. Cl. at 626. Under that procedure, once an officer
`of the United States filed in the office of the State Engineer
`a written notice that the United States intended to use cer-
`tain previously unappropriated waters, the waters were
`“deemed to have been appropriated by the United States,”
`provided certain deadlines for the filing of plans and con-
`struction were met. Baley, 134 Fed. Cl. at 626 (quoting Or.
`Gen. Laws, 1905, ch. 228, § 2). In authorizing the United
`States to appropriate water for the construction of the Kla-
`math Project irrigation works, “the Oregon legislature au-
`thorized the United States to appropriate state water
`rights pursuant to the 1905 [Oregon A]ct for the benefit of
`those persons who the Reclamation Act contemplated
`would put water to beneficial use.” Certification Decision,
`
`
`
`14
`
`BALEY v. UNITED STATES
`
`227 P.3d at 1159; see also Remand Decision, 635 F.3d at
`518 n.8.
`On May 17, 1905, the United States Reclamation Ser-
`vice, the predecessor to the Bureau of Reclamation, filed a
`notice with the Oregon State Engineer. The notice set forth
`plans for proposed works and proof of authorization for the
`Klamath Project, as required by the 1905 Oregon Act. Ba-
`ley, 134 Fed. Cl. at 626. The notice stated that “the United
`States intends to utilize . . . [a]ll of the waters of the Kla-
`math Basin in Oregon, constituting the entire drainage ba-
`sins of the Klamath River and Lost River, and all of the
`lakes, streams and rivers supplying water thereto or re-
`ceiving water therefrom” for purposes of “the operation of
`works for the utilization of water . . . under the provisions
`of the . . . Reclamation Act.” Id.8
`Under the Klamath Project, water is stored in Upper
`Klamath Lake by means of the Link River Dam. Water is
`diverted from Upper Klamath Lake and locations down-
`stream from the lake on the Klamath River and conveyed
`through canals and laterals to individual users in Oregon
`and California. Id. As part of this process, water is stored
`and its flow is controlled using a series of dams down-
`stream from the Link River Dam, which is at the south end
`of Upper Klamath Lake. The last of these dams on the Kla-
`math River is the Iron Gate Dam in California. The works
`that divert water were constructed by the United States
`between 1906 and 1966 and are currently owned by the
`
`
`8 Private landowners and irrigation companies had
`begun to divert water for irrigation purposes prior to the
`development of the Klamath Project; most of those inter-
`ests were integrated into the Klamath Project. Baley, 134
`Fed. Cl. at 626.
`
`
`
`BALEY v. UNITED STATES
`
`15
`
`United States. Id.9 A map of the Klamath River Basin in
`Oregon and California is provided in the Appendix.
`Individual plaintiff landowners (or their lessees) have
`applied water diverted from the Klamath River to irrigate
`crops. Baley, 134 Fed. Cl. at 626. In this manner, they
`have put Klamath Project water to beneficial use. As a re-
`sult, the water became appurtenant to their land. See Cer-
`tification Decision, 227 P.3d at 1163, 1169; Remand
`Decision, 635 F.3d at 518. The United States “holds the
`water right that it appropriated pursuant to the 1905 Ore-
`gon [A]ct for the use and benefit of the landowners.” Certi-
`fication Decision, 227 P.3d at 1163–64; see Remand
`Decision, 635 F.3d at 518.
`In 1975, Oregon began a general adjudication for the
`purpose of determining surface water rights in the Kla-
`math River Drainage Basin (“the Klamath Adjudication” or
`“the Adjudication”).10 Baley, 134 Fed. Cl. at 635. The Ad-
`judication was undertaken pursuant to the Oregon Water
`Rights Act of 1909, Or. Rev. Stat. §§ 539.005–539.240. See
`id. The Adjudication covers pre-1909 state-based water
`
`9 The operation and maintenance of all the federally-
`owned works downstream of the headgates of Upper Kla-
`math Lake and the operation and maintenance of works
`that divert water directly from the Klamath River have
`been transferred by contract to the Klamath Irrigation Dis-
`trict and Tulelake Irrigation District, which distribute wa-
`ter to irrigators. Baley, 134 Fed. Cl. at 626–27. Similarly,
`other irrigation districts and individuals have constructed,
`and own, their own diversion and delivery facilities pursu-
`ant to contracts with the United States. Id.
`10 An adjudication is a process through which water
`rights can be quantified; i.e., quantities of water can be al-
`located to holders of rights in a water source. See generally
`A. Tarlock & J. Robison, Law of Water Rights and Re-
`sources §§ 1.1, 7.2 (2019).
`
`
`
`16
`
`BALEY v. UNITED STATES
`
`rights not previously adjudicated, as well as federal re-
`served water rights. Id. Claims were filed beginning in
`1990. Administrative hearings were initiated in 2001, and
`on February 28, 2014, the adjudicator issued amended and
`corrected versions of previous orders of determination.
`Those orders are now before Oregon state courts for judicial
`confirmation. Id.; see Klamath Basin General Stream Ad-
`judication, Corrected Partial Order of Determination (Feb.
`28, 2014), https://www.oregon.gov/OWRD/programs/Water
`Rights/Adjudications/KlamathAdj/KBA_ACFFOD_07017.
`PDF.
`
`II. Tribal Fishing Rights
`The Klamath Tribes, the Yurok Tribe, and the Hoopa
`Valley Tribe of Native Americans (collectively, the
`“Tribes”) each hold rights to take fish from water sources
`on their reservations. These rights were set aside for them
`when their reservations were created, as discussed in fur-
`ther detail below. The Tribes’ rights are non-consumptive,
`meaning that the Tribes are “not entitled to withdraw wa-
`ter from the stream for agricultural, industrial, or other
`consumptive uses.” United States v. Adair, 723 F.2d 1394,
`1411 (9th Cir. 1983). Instead, they hold “the right to pre-
`vent other appropriators from depleting the streams[’] wa-
`ters below a protected level in any area where the non-
`consumptive right applies.” Id.
`The Klamath Tribes, which include the Klamath and
`Moadoc Tribes and the Yahooskin Band of Snake Indians,
`constitute a federally-recognized tribe which has hunted,
`fished, and foraged in the Klamath Basin for over a thou-
`sand years. Id. at 1397; see Or. Dep’t of Fish & Wildlife v.
`Klamath Indian Tribe, 473 U.S. 753, 755 (1985). The basis
`for the Klamath Tribes’ fishing rights is an 1864 treaty
`with the United States, in which the Klamath Tribes “re-
`linquished [their] aboriginal claim to some 12 million acres
`of land in return for a reservation of approximately 800,000
`acres” of land that abutted Upper Klamath Lake and
`
`
`
`BALEY v. UNITED STATES
`
`17
`
`included several of its tributaries. Adair, 723 F.2d at
`1397–98. In addition to other rights, the 1864 Treaty guar-
`anteed the Klamath Tribes “the exclusive right of taking
`fish in the streams and lakes, included in said reservation.”
`Treaty Between the United States of Am. & the Klamath
`& Moadoc Tribes & Yahooskin Band of Snake Indians, Art.
`I, Oct. 14, 1864, 16 Stat. 707 (“the Klamath Treaty” or “the
`1864 Treaty”). In Adair, the Ninth Circuit determined that
`“one of the ‘very purposes’ of establishing the Klamath
`[r]eservation was to secure to the Tribe a continuation of
`its traditional hunting and fishing lifestyle.” 723 F.2d at
`1408–09.11 The Klamath Tribes’ water rights “necessarily
`carry a priority date of time immemorial. The rights were
`not created by the 1864 Treaty, rather, the treaty con-
`firmed the continued existence of these rights.” Adair, 723
`F.2d at 1414 (collecting cases).
`Until 1887, the Klamath Tribes lived on their reserva-
`tion under the terms of the 1864 Treaty, holding the reser-
`vation land in communal ownership. Adair, 723 F.2d at
`1398. In 1887, Congress passed the General Allotment Act,
`24 Stat. 388. Under the General Allotment Act, approxi-
`mately 25% of the reservation passed from tribal to indi-
`vidual Indian ownership. Id. In 1954, Congress passed the
`Klamath Termination Act, 68 Stat. 718 (codified at 25
`U.S.C. §§ 564–564w (1976)) (“the Termination Act”),
`largely terminating the reservation. Id. at 1398, 1411–12.
`This led a large majority of tribal members to give up their
`interests in tribal property for cash. Id. at 1398. However,
`§ 564m(a) of the Termination Act provides that “[n]othing
`in sections 564–564w of this title shall abrogate any water
`
`
`11 The Adair court referred to the “Klamath Tribe,