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V_fEST/CRS2007-5115

"UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

KLAMATH IRRIGATION DISTRICT, TULELAKE IRRIGATION

DISTRICT, KLAMATH DRAINAGE DISTRICT, POE VALLEY

IMPROVEMENT DISTRICT, SUNNYS1DE IRRIGATION DISTRICT,

KLAMATH BASIN IMPROVEMENT DISTRICT, KLAMATH HILLS

DISTRICT IMPROVEMENT CO., MIDLAND DISTRICT

IMPROVEMENT CO., MALIN IRRIGATION DISTRICT, ENTERPRISE

IRRIGATION DISTRICT, PINE GROVE IRRIGATION DISTRICT,

WESTSIDE IMPROVEMENT DISTRICT NO. 4, SHASTA VIEW

IRRIGATION DISTRICT, VAN BRIMMER DITCH CO., FRED A.

ROBI_ISON, ALBERT J. ROBINSON, LONNY E. BALEY, MARK R.

TROTMAN, BALEY TROTMAN FARMS, JAMES L. MOORE, CHERYL

L. MOORE, DANIEL G. CHIN, DELORIS D. CHIN, WONG POTATOES,

INC., MICHAEL J. BYRNE, DANIEL W. BYRNE and BYRNE

BROTHERS,

V.

UNITED STATES,

and

Plaint(ffs-Appellants,

Dqfendan t-Appel lee,

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATION,

Defendant-Appellee.

Appeal fiom the United States Court of Federal Claims in 01-CV-

591, 01-CV-5910 through 01-CV-59125, Judge Francis M. Allegra

CORRECTED AMICUS CURIAE BRIEF OF THE KLAMATH

TRIBES AND THE HOOPA VALLEY INDIAN TRIBE IN SUPPORT

OF THE UNITED STATES SUPPORTING AFFIRMANCE

Lead Counsel

WALTER R. ECHO-HAWK

Native American Rights Fund

1506 Broadway

Boulder, CO 80305

(303) 447-8760

Counsel for Klamath Tribes

THOMAS P. SCHLOSSER

Morisset, Schlosser, Jozwiak &

McGaw

801 2 "J Ave. #1115

Seattle, WA 98104-1509

(202) 386-5200

FILEDU.S.COURTOF APPEALSFOR

THEFEDERAl.CIRCUIT

DEC 0 6 2007

Counsel for Hoopa Valley lndian Tribe

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2007-5115

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

KLAMATH IRRIGATION DISTRICT, TULELAKE IRRIGATION

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DISTRICT, KLAMATH DRAINAGE DISTRICT, POE VALLEY

IMPROVEMENT DISTRICT, SUNNYSIDE IRRIGATION DISTRICT,

KLAMATH BASIN IMPROVEMENT DISTRICT, KLAMATH HILLS

DISTRICT IMPROVEMENT CO., MIDLAND DISTRICT

IMPROVEMENT CO., MALIN IRRIGATION DISTRICT, ENTERPRISE

IRRIGATION DISTRICT, PINE GROVE IRRIGATION DISTRICT,

WESTSIDE IMPROVEMENT DISTRICT NO. 4, SHASTA VIEW

IRRIGATION DISTRICT, VAN BRIMMER DITCH CO., FRED A.

ROBINSON, ALBERT J. ROBINSON, LONNY E. BALEY, MARK R.

TROTMAN, BALEY TROTMAN FARMS, JAMES L. MOORE, CHERYL

L. MOORE, DANIEL G. CHIN, DELORIS D. CHIN, WONG POTATOES,

INC., MICHAEL J. BYRNE, DANIEL W. BYRNE and BYRNE

BROTHERS, Plaintiffs-Appellants,

V.

UNITED STATES,

and

Defendant-Appellee,

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATION,

Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 01-CV-

591, 01-CV-5910 through 01-CV-59125, Judge Francis M. Allegra

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AMICUS CURIAE BRIEF OF THE KLAMATH TRIBES AND THE

HOOPA VALLEY INDIAN TRIBE IN SUPPORT OF THE UNITED

STATES SUPPORTING AFFIRMANCE

Lead Counsel

WALTER R. ECHO-HAWK

Native American Rights Fund

1506 Broadway

Boulder, CO 80305

(303) 447-8760

THOMAS P. SCHLOSSER

Morisset, Schlosser, Jozwiak &

McGaw

80 l 2 "0 Ave. # 1 l l 5

Seattle, WA 98104-1509

(202) 386-5200

Counsel for Klamath Tribes Counsel for Hoopa Valley Indian Tribe

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CERTIFICATE OF INTEREST

Counsel for the amici curiae Klamath Tribes and Hoopa Valley Indian

Tribe certifies that the following intbrmation complies with Rule 47.4 of the

Federal Circuit Rules ("Fed. Cir. R."):

t. The full names of the parties represented by me are: KLAMATH

TRIBES and HOOPA VALLEY INDIAN TRIBE.

2. The names of the real parties in interest represented by me are: See

answer to No. I.

3. All parent corporations and any publicly held companies that own

10 percent or more of the stock of the parties represented by me are:

None.

4. There is no such corporation as listed in paragraph 3.

5. The names of all law finns and the partners or associates that

appeared for the parties now represented by me in the trial court or are

expected to appear in this case are:

Lead Counsel: Co-Counsel:

Walter R. Echo-Hawk

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Thomas P. Schlosser

Morisset, Schlosser,

Jozwiak & McGaw

801 2 "d Ave. # l 115

Seattle, WA 98104

(206) 386-5200

Dated: October 30 th, 2007

Walter R. Echo-Hawk

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TABLE OF CONTENTS

Page

CERTIFICATE OF INTEREST ................................................................................ i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES .................................................................................. iii

STATEMENT OF INTEREST AND IDENTITY OF AMICI CURIAE ................ l

SUMMARY OF ARGUMENT ................................................................................. 4

ARGUMENT ............................................................................................................ 7

, APPELLANTS' ARGUMENTS ARE FORECLOSED BY THE

OREGON SUPREME COURT'S UMATILLA DECISION, WHICH

DETERMINED TttAT UPON COMPLIANCE WITH THE 1905

ACT, FEDERAL RECLAMATION PROJECT WATER RIGHTS

VEST IN THE UNITED STATES ................................................................ 7

. DETERMINATION OF OWNERSHIP OF KLAMATH PROJECT

WATER RIGHTS MUST BE BASED ON THE 1905 ACT AS

INTERPRETED BY UMATILLA; APPELLANTS' ATTEMPTS TO

FABRICATE A CONTRARY RULE OF OWNERSHIP OF

FEDERAL RECLAMATION PROJECT WATER RIGHTS BASED

ON OTHER STATES' LAWS AND UPON APPELLANTS'

ERRONEOUS ANALYSIS OF THE OREGON COMMON LAW

MUST BE REJECTED ............................................................................. l l

, No "TAKING" OCCURRED IN 2001 WHEN THE UNITED

STATES CURTAILED JUNIOR PROJECT WATER RIGHT

DELIVERIES IN ORDER TO PROTECT SENIOR INDIAN

WATER RIGHTS, BY VIRTUE OF THE PRIOR

APPROPRIATION DOCTRINE ................................................................. 18

CONCLUSION ....................................................................................................... 24

CERTIFICATE OF COMPLIANCE

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FEDERAL CASES

Blake v. Arnett,

TABLE OF AUTHORITIES

Page

633 F.2d 906 (9th Cir. 1981) ................................................................................... 3

California v. United States,

438 U.S. 645 (1978) ................................................................................................ 11

Colo. Rivet" Water ConservationDist. v. United States,

424 U.S. 800 (1976) ................................................................................................ 23

H.F. Allen Orchards v. United States',

749 F.2d 1571 (Fed. Cir. 1984) ............................................................................... 13

lckes v. Fox,

300 U.S. 82 (1937) .................................................................................................. 13

Joint Bd. of Control v. United States,

832 F.2d 1127 (9th Cir. 1987) ................................................................................. 20

Kandra v. United States,

145 F. Supp. 2d 1192 (D. Or. 2001) ................................................................ passim

Kittitas Reclamation Dist. v. Sunnrside Valley Irrigation Dist.,

763 F.2d 1032 (,9th Cir. 1985) ................................................................................. 20

Klamath Irrigation Dist. v. United States,

67 Fed. CI. 504 (2005) ............................................................................ 1, 16, 18, 19

Klamath Water Users Protective Ass 'n v. Patterson,

204 F.3d 1206 (9th Cir. 2000) .......................................................................... passim

Nebraska v. Wyoming,

325 U.S. 589 (1945) ................................................................................................ 13

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Nevada v. United States,

463 U.S. 110 ('1983) ................................................................................................ 13

Oregon v. United States,

467 U.S. 1252 (1984) ................................................................................................ 2

Pac. Coast Fed 'n of k_shetvnen's Ass 'ns v. U.S. Bureau of Reclamation,

426 F.3d 1082 (9th Cir. 2005) ............................................................................. 2, 23

Pac. Coast Fed 'n of Fishermen's Ass 'ns v. U.S. Bureau of Reclamation,

138 F. Supp. 2d 1228 (N.D. Cal. 2001) .................................................... 3, 7, 19, 21

Parravano v. Babbitt,

70 F.3d 539 (9th Cir. 1995) ............................................................................. 2, 3, 21

United States v. Adair,

723 F.2d 1392 (9th Cir. 1984) ............................................................................. 2, 19

United States v. Braren,

338 F.3d 971 (9th Cir. 2003) ..................................................................................... 9

United States v. Eberhart,

789 F.2d 1354 (9th Cir. 1986) ................................................................................. 21

United States v. Or. Water Res. Dept.

44 F.3d 758 (9th Cir. 1994) ....................................................................................... 9

United States v. Or. Water Res. Dept.

774 F. Supp. 1568 (D. Or. 1991) ........................................................................... 22

STATE CASES

Fort Vannoy b'rigation Dist. v. Water Res. Comm 'n,

162 P.3d 1066 (Or. Ct. App. 2007) .................................................................. passim

Grande Ronde Elec. Co. v. Drake,

78 P. 1031 (Or. 1905) .............................................................................................. 10

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In re Hood River,

227 P. 1065 (Or. 1924) ...................................................................................... 11, 15

Nev. Ditch Co. v. Bennett,

45 P. 472 (Or. 1896) ................................................................................ 6, 10, 14, 17

Portland Gen. Elec. Co. v. Bureau of Labor and Indus.,

859 P.2d ! 143 (Or. 1993) ............ ............................................................................ 10

In re Unitah Basin,

133 P.3d 410 (Utah 2006) ....................................................................................... 13

United States v. Pioneer Irrigation Dist.,

157 P.3d 600 (Idaho 2007) ...................................................................................... 13

bl re Water Rights of Deschutes Rivet"

286 P. 563 (Or. 1930) ......................................................................................... 14-15

In re Waters of Umatilla River

168 P. 922 (Or. 1917) modified and affld by 172 P. 97 (Or. 1918) ................. passim

In re Waters qf Walla Walla River,

16 P. 939 (Or. 1933) ................................................................................................ 15

ADMINISTRATIVE CASES

h2 re the Determination of'the Relative Water Rights of the Klamath River,

Case No. 286, Amended Order on Motions for Legal Ruling

(.Oregon Water Res. Dept., Feb. 13, 2007) ....................................................... 19, 20

In re the Determination o['the Relative Water Rights of the Klamath River,

Lead Case No. 003, Proposed Order at 18 (Conclusion of Law No. 24)

(Oregon Water Res. Dept., November 14, 2006) .......................................... 9-12, 19

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FEDERAL STATUTES and TREATIES

Endangered Species Act, 16 U.S.C. §§ 1531 etseq ................................................. 2

Hoopa-Yurok Settlement Act, 25 U.S.C. §§ 1300i et seq ................................. 20-21

Pub. L. No. 100-580, § l, 102 Stat. 2924, 2924 (1988) .......................................... 21

Pub. L. No. 102-575, § 3406(b)23, 106 Stat. 4603, 4716 (1992) ........................... 21

Reclamation Act, 32 Stat. 388 (1902)

(codified as amended at 43 U.S.C. §§ 371 etseq.) ............................................ 7, 11

Treaty with the Klamath etal., Oct. 14, 1864, 16 Stat. 707 ..................................... 2

STATE STATUTES and LAWS

General Laws of Oregon, ch. 228, § 2 (1905) ................................................. passim

OR. REV. STAT. § 540.510 (200l) 13

OR. RZv. S'rAr. § 539.130 (2005) .............................................................................. 9

RULES, REGULATIONS and OTHER AUTHORITIES

Calif. Dep't of Fish & Game, September 2002 Klamath River Fish-Kill."

Final Analysis of Contributing Factors and Impacts (July 2004) (available at

http://www.schlosserlawfiles.corrd-hoopa/CDFG2004.pdf) .................................. 23

Crisis oJConl_dence. The Political Influence of the Bush Administration on

Agency Science and Decision-Making Hearing Before the H. Comm. on

Natural Resources, 110th Cong. (2007) ................................................................ 23

") ,Fed. R. App. P..9(a) ................................................................................................. 4

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Memorandum from Office of the Solicitor, Reg'l Solicitor, Pac. Sw. & Nw.

Regions, to Reg'l Dir., Region 1, U.S. Fish & Wildlife Serv., Portland, Or.,

et al. 5-6 (Jan. 9, 1997) (last modified Aug. 23, 2007) (available at

http://www.schlosserlawfiles.com/-hoopa/SolMem010997.pd f) .......................... 2 l

Memorandum from Office of Solicitor, Reg'l Solicitor, Pac. Sw. Region, to

Reg'l Dir., Bureau of Reclamation, Mid-Pac. Region 8 (July 25, 1995) (last

modified Dec. 8, 2006) (available at

http://www.schlosserlawfiles.com/-hoopa/SolMem072595.pd f) ......................... 21

OR. ADM_. R. 137-003-0515 .................................................................................... 9

S. PEP. No. 100-564, at 4-6 (1988) ......................................................................... 21

U.S. Fish and Wildlife Service, Klamath Rivet" Die-OffSeptember 2002,

REP. NO. AFWO-F-02-03 (Nov. 7, 2003) ............................................................... 23

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STATEMENT OF INTEREST AND IDENTITY OF AAHCI CURIAE

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This brief is filed by two federally recognized Indian tribes, (l) the Klamath

Tribes located in the upper Klamath River Basin of southern Oregon and (2) the

Hoopa Valley Indian Tribe, which occupies a reservation near the mouth of the

Klamath River in California. Both have dwelt in tile basin since time immemorial

and possess federally protected water rights in the Klamath River system that are

senior to any water or storage rights for the United States Bureau of Reclamation's

Klamath Irrigation Project (hereinafter, "Klamath Project" or "Project"). In

addition, both tribes possess federally protected fishing rights in basin waters.

The Klamath Project is a massive federal irrigation project that diverts

enormous amounts of water out of Upper Klamath Lake in southern Oregon during

the irrigation season to inigate about 240,000 acres of farmland. Klamath

Irrigation District, et al. v. United States, 67 Fed. C|. 504, 509 (2005) (hereinafter

the decision of the court below, "K/D"). The Kiamath Tribes reside upstream of the

Project above Upper Klamath Lake, which is a shallow natural lake used as the

Project's storage reservoir. The lake is home to the Tribes' treaty protected lake

fishery, including sucker fish species called "c'wam" by Klamath Indians that is of

great importance to the Tribes' physical and spiritual well-being. Kandra v. United

States 145 F. Supp. 2d 1192, 1197 (D. Or. 200l) (hereinafter, "Kandra"). C'wam

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live in the lake and surrounding waters and nowhere else. They are listed as

endangered under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, etseq.

Project operations affect lake water levels and the c'wam, thereby impacting tribal

water rights and treaty fishing rights protected by the Treaty of 1864, 16 Star. 707

(reserving the fight to hunt, fish, and gather on the Klamath Indian Reservation).

United States v. Adair. 723 F.2d 1392 (9 th Cir. 1984), cert. denied sub nora.

Oregon v. United States. 467 U.S. 1252 (1984); Kandra 145 F. Supp.2d at 1197.

After the Project diverts and consumes water from Upper Kiamath Lake for

irrigation, waste water is discharged back into the Klamath River, often laden with

agricultural waste. Project operations significantly alter and deplete downstream

river flows into the Hoopa Valley Indian Tribe's reservation where the tribe's water

rights and fishing rights are affected. Pacific Coast Federation of Fishermen's

Assoc. v. United Sta/es Bureau of Reclamation, 426 F.3d 1082, 1085-87 (9 _hCir.

2005); Parravano v. Babbitt, 70 F.3d 539 (9 t" Cir. 1995), cert. denied, 518 U.S.

1016 (1996); Kandra, 145 F. Supp.2d at 1197. The tribal fishery includes coho

salmon that provide the Hoopa and neighboring Yurok Tribe with "a source of

food, opportunities for employment and income, and the basis of [tribal] customs

and traditions" and are listed as a threatened species under the ESA. Kandra, 145

F. Supp.2d at 1197.

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These salmon are "not much less necessary to [the tribes' existence] the

atmosphere they breathed." Parravono, 70 F.3d at 542 (citing Blake v. Arnett, 633

F.2d 906, 909 (9 th Cir. 1981) (internal quotations omitted)). Project water

management affects the coho sahnon, as was the case in the 200l water year at

issue in this case. Pacific Coast Federation of Fishermen's Assoc. v. Bureau of

Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. 2001) (hereinat_er, "PCFFA'_.

In short, the amici tribes reside upstream and downstream of the Klamath

Project. Their water and fishing rights are affected by Project water managernent.

As trustee for the tribes, the United States must operate the Project consistent with

tribal water and fishing rights and comply with tribal water requirements necessary

to fulfill senior tribal water rights "that take precedence over any alleged rights of

the irrigators." Klamath Water Users' Protective Association v. Patterson, 204 F.3d

1206, 1209, 1213-1214 (9 th Cir. 2000), cert. denied, 531 U.S. 812 (2000)

(hereinafter, "Patterson'% This case affects these vital tribal interests because the

appeal raises pivotal legal questions concerning the management and ownership of

Project water and storage rights. Resolution of these questions could severely

impair the United States' ability to manage the Project consistent with its fiduciary

trust obligations to protect the tribes' treaty and trust resources in two respects.

First, if private irrigators--who have no trust obligation to the tribes-- are said to

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"own" Project water rights, future operations could disregard tribal trust resources.

Second, if the United States is liable for "taking" the irrigators' alleged property

interest in Project water whenever it acts to discharge its trust duty to protect tribal

water and fishing rights, the United States' ability to carry out its duty will be

crippled, if not destroyed.

The source of authority for filing this brief is Rule 29(a), Fed. R. App. Proc.,

permitting amicus curiae to file a brief with leave of the court.

SUMMARY OF ARGUMENT

The decision below should be affirmed. Judge Allegra correctly rejected the

takings claims in this case on the grounds that the United States owns all of the

water and storage rights tbr the Klamath Project under state and federal law, and

the Plaintiff-Appellants (hereinafter, "Project water users") do not own any

constitutionally protected property rights to receive water from the Project. On

appeal, the Project water users maintain they are the owners of the disputed Project

water rights for their appurtenant lands. Their contention is simply not the law in

the State of Oregon. As will be shown, Appellants have presented an erroneous and

seriously incomplete picture of Oregon water law regarding the ownership of water

and storage rights for the Klamath Project by (1) ignoring controlling Oregon law;

and (2) attempting to fabricate a rule of ownership based on appurtenancy and

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beneficial use which, even if it is the law in other states, is no.___!the law in Oregon.

Moreover, the decision below should be affirmed for the additional reason that

even if Appellants were the owners of the Project water rights, which they are not,

their takings claims would still fail under Oregon's doctrine of prior appropriation.

The first flaw in Appellants' argument is that their entire discussion of

Section 2 of the Act of February 22, 1905, Or. Gen. Laws, 1905, Ch. 228

(hereinafter, "Oregon's 1905 Act" or "1905 Act"), which is the dispositive state

law that prescribes how the United States shall obtain water rights for federal

irrigation projects in Oregon, completely overlooks the Oregon Supreme Court's

authoritative interpretation of that Act in In re Waters of Umatilla River, 88 Or.

376, 168 P. 922 (1917), rood(fred and a{l'd on rehg., 88 Or. 376, 172 P. 97 (1918)

(hereinafter, "Umatilla"). t Brief of Plaintiffs-Appellants at 2, 19, 37-43

(hereinafter, "Plaintiffs-App. Br."). Umatilla held that compliance with Oregon's

1905 Act vests in the United States title to water appropriated by the Federal

Government tbr federal irrigation projects and thus completely forecloses

Appellants' argument that they, and not the United States, are the owners of water

rights for the Project.

Sec. 2 of the 1905 Act is contained in the Addendum of the United States'

brief.

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Second, Appellants are entirely mistaken in arguing that there is a general

rule of ownership of federal reclamation project water rights, based solely on

appurtenancy and beneficial use, which is applicable in Oregon. Plaintiffs-App. Br.

at 30, 32. Whatever the law may be in other states, ownership of federal

reclamation project water rights m Oregon is determined by the 1905 Act, as

interpreted by Umatilla.

Moreover, even if Oregon common law were to be applied (which it should

not be), Appellants' arguments would still fail. The line of Oregon Supreme Court

cases beginning with Nevada Ditch Compare, v. Bennett, 30 Or. 59, 94-98, 45 P.

472, 482 (1896) (hereinafter, "Nevada Ditch Compat(v'), makes clear that under

Oregon common law, developers who appropriate water tbr irrigation projects may

own the vested water rights for those projects by putting the water to beneficial use

through the "agency" of the water users. The recent decision in Fort Vanno_,

Irrigation District v. Water Resources Commission. 214 Or. App. 88, 162 P.3d

1066 (Ct. App., July i 1, 2007) (hereinafter, "Fort Vannoy h'r. Dist."), holding that

the water rights at issue were owned by an irrigation district, and not by the

landowner who applied the water to beneticial use, further confirms the fallacy of

Appellants' assertions.

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Finally, as held by the court below (,67 Fed. CI. at 539 n. 60-63), even

assuming arguendo that the United States does not own any Project water rights,

Appellants still have no takings claim. Oregon's water law doctrine of prior

appropriation requires senior water rights to be satisfied during times of water

shortage betbre junior water rights are entitled to any water. Id. That is precisely

what happened in 200l--the United States curtailed junior water right deliveries to

Project water users in order to satisfy the senior tribal water rights of the amici

curiae Indian tribes to sufficient water to protect tribal trust resources. Kandra, 145

F. Supp.3d at 1197, 120l; PCFFA, 138 F. Supp. 2d at 1230-32. Under that

circumstance, it can hardly be said that a taking occurred, without undermining the

entire body of western water law built upon tile prior appropriation doctrine.

ARGUMENT

1. Appellants' Arguments Are Foreclosed By The Oregon Supreme Court's

Umatilla Decision, Which Determined That Upon Compliance With The 1905

Act_ Federal Reclamation Project Water Rights Vest In the United States.

The Reclamation Act, 32 Stat. 388 (1902) (codified, as amended, at 43

U.S.C. §§ 371 et seq.) requires the Secretary of the Interior to acquire water rights

for federal reclamation projects in contbrmity with state law. Unlike many western

states, the Oregon legislature enacted a special statute in 1905 to prescribe the

manner in which the United States shall acquire water rights for federal

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reclamation projects. See, Oregon's 1905 Act, §2. Determination of ownership of

water rights for federal irrigation projects in Oregon is thus a matter of statutory

construction. Appellants mistakenly believe the 1905 Act has never been

interpreted by the Oregon Supreme Court, 2 and their resulting analysis is flawed

because it tails to mention or take the Oregon Supreme Court's interpretation of

the Act in its Umatilla decision into account. As explained below, Appellants'

arguments are completely foreclosed by the Umatilla decision.

Section 2 of the 1905 Act prescribes that once the United States has

complied with the statute's requirements, reclamation project water "shall be

deemed to have been appropriated by the United States" and "[n]o adverse claims

to the use of the water.., shall be acquired under the laws of this State except for

such amount of said water.., as may be released in writing by an officer of the

United States." Following "the plain mandate of the statute," the Umatilla court

explained that once the United States contbnns to the terms of the statute, "the

plain precept of the law vests the United States with title to all waters not

theretofore appropriated." 88 Or. at 399, 172 P. at 100. Accordingly, the court

2 Plaintiffs-App. Br. at 2 n. 2 ("the precise meaning of the 1905 Oregon

statute . . . has never been addressed by the Oregon Supreme Court"), 19 ("the

appropriate construction of a 1905 Oregon statute . . . is undetermined by the

Oregon Supreme Court").

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awarded the United States tile water right for the project.

Umatilla is controlling law in Oregon. It was followed most recently in the

State of Oregon's pending Klamath Basin Adjudication to reject the very

contentions Appellants present here. In re the Determination o/the Relative Water

Rights of the Klamath River, Lead Case No. 003, Proposed Order at 18

(Conclusion of Law No. 24), 19-23, (Oregon Water Resources Dept., November

14, 2006) (hereinafter, "Klamath Adjudication, Proposed Order, Case 003"). 3

3 This Proposed Order is reproduced in tbe United States' Response Brief

Addendum. It can also be accessed at the following website:

http://www.schiosserlawfiles.com/-hoopa/ProposedOrder.pdf. The order was

issued by Administrative Law Judge (hereinafter, "A[J") Maurice L. Russell, I1, of

Oregon's Office of Administrative Hearings (hereinafter, "OAH"), which is all

independent administrative hearing panel established by state law to hear contested

administrative cases. See, Or. Admin. R. 137-003-0515. OAH ALJs oversee

discovery and conduct evidentiary bearings in contested cases in the Klamath

Basin Adjudication and then, following legal briefing by the parties, issue

proposed orders determining contested water rights. The proposed orders are

reviewed and finalized by the Adjudicator of the Klamath Basin Adjudication

under Or. Rev. Stat. § 539.130. The parties' exceptions to the Proposed Order in

Case 003 are currently under review by the Adjudicator. United States v. Oregon

Water Resources Dept.. 44 F. 3d 758, 764-765 (9 th Cir. 1994), cert. denied sub

nora. Klamath Tribes v. Oregon, 516 U.S. 1995) describes the statutory process for

adjudicating water rigbts in Oregon's Klamath Basin Adjudication. United States

v. Braren. 338 F.3d 971,973-974 (9 'h Cir. 2003) describes tile role of the OAH in

that process.

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In that proceeding, ALJ Russell pointed out that the 1905 Act must be

construed under tile rules of statutory construction laid out in PGE v. Bureau of

Labor and Industries, 317 Or. 606, 610 (1993). Accord, Fort Vannov b'rigation

District, 214 Or. at 95, 162 P.3d at 1070. Applying those rules, he determined that

"[t]he language of the statute is unambiguous" and held that the United States'

appropriation under the Act vested ownership of Project water rights in the United

States. Klamath Adjudication, Proposed Order, Lead Case 003, at 20-23. 4

As correctly held by the court below and the decision in Klamath

Adjudication, Proposed Order, Lead Case 003, the 1905 Act, as interpreted by

4 The ALJ's construction of the statute is correct. Use of the term

"appropriated" in the 1905 Act and Umatilla opinion clearly means a vested water

right, because the Oregon Supreme Court had previously defined that term as

including all things necessary to obtain a vested water right in 1896, nine years

before the law was enacted. Nevada Ditch Company, 30 Or. at 87-91 (.the term

"appropriation" is "used with reference to a claim to the use of water of a public

stream from the time of inception of the right, at all the intermediate stages, and

down to the time when the last act is accomplished by which the right is finally

completed and secured."). Accord, Grande Ronde Electric Co. v. Drake, 46 Or.

243, 249, 78 P. 1031, 1033 (,1905) ("The word 'appropriate' . . . is generally

understood to mean an application of water to beneficial use.") which is

contemporaneous with the 1905 Act. Thus, the Umatilla court saw no ambiguity in

the statute and applied its plain meaning. 172 P. at 100. In so doing, the court was

cognizant of the doctrines of appurtenancy and beneficial use (168 P. at 924), but

nonetheless equated compliance with Section 2 with the acquisition of a vested

water right.

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Umatilla, completely forecloses Appellants' claim that they, and not the United

States, are the owners of the Project water rights. 5

2. Determination Of Ownership Of Klamath Project Water Rights Must Be

Based On The 1905 Act As Interpreted By Umatilla; Appellants' Attempts To

Fabricate A Contrary Rule Of Ownership Of Federal Reclamation Proieet

Water Rights Based On Other States' Laws And Upon Appellants' Erroneous

Analysis Of The Oregon Common Law Must Be Reiected.

Under the 1902 Reclamation Act, the appropriation of water rights for

federal reclamation projects is governed by state law. See California v. United

States, 438 U.S. 645, 664 (1978). As explained above, the controlling state law in

Oregon is the 1905 Act, as interpreted by the Oregon Supreme Court in Umatilla.

As statutory law, the Act of 1905 supplants Oregon's common law manner for

appropriation of water, h7 re Hood River, 114 Or. 112, 172, 227 P. 1065, 1084

(1924) (hereinafter, "Hood River") ("a state may change its common-law rule as to

every stream within its dominion, and permit the appropriation of flowing water

for such purposes as it deems wise."). The 1905 Act prescribes specific steps by

5 As mentioned above, Section 2 of the 1905 Act only allows Project water

users to obtain Project water rights from the United States for such amounts "as

may be released in writing by an officer of the United States." This brief does not

address Appellants' contention that they obtained Project water rights from the

United States in this manner as that contention will in all likelihood be addressed

by the United States, other than to note that those contentions were properly

rejected both in the court below and in Klamath Adjudication, Lead Case 003, at26-39.

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which the United States could obtain water rights for the Klamath Project in

Oregon. As held in Umatilla, the United States' compliance witll the 1905 Act

prescription is dispositive of the matter.

A proper analysis of the ownership of reclamation project water rights in

Oregon thus begins, and ends, with the 1905 Act, as interpreted by Umatilla. See,

Klamath Adjudication, Proposed Order, Case 003, at 20-23; Fort Vannov Irr. Dist.,

214 Or. App. at 94. However Appellants ignore this controlling law. Instead they

look to the water laws of other states and to Oregon common law, to fabricate a

seemingly immutable rule of ownership of federal reclamation project water rights

based solely on appurtenancy and beneficial use. Plaintiffs-App. Br. at 24-37.

They then argue that the 1905 Act cannot properly be interpreted as contradicting

this (non-existent) rule. Plaintiffs-App. Br. at 37-43. Appellants' arguments are

incorrect and must be rejected for the reasons explained below.

First, Appellants are entirely incorrect in arguing that Oregon law is

"indistinguishable" from the law of other states with respect to ownership of

federal reclamation project water rights. Plaintiffs-App. Br. at 29. While the

Project water users place heavy reliance upon three Supreme Court cases to argue

that they, not the United States, are the owners of water rights for the Klamath

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Project, lckes v. Fox, 300 U.S. 82 (1937); Nebraska v. H'_voming, 325 U.S. 589

(1945); and Nevada v. United States, 463 U.S. 110 (1983); (Plaintiffs-App. Br. at

19-20, 24-29) and attempt to extrapolate state water law from the states at issue in

those cases to that in Oregon (Plaintiffs-App. Br. at 29-37), none of the states in

Ickes, Nebraska. and Nevada have statutes remotely comparable to Oregon's 1905

Act. Similarly, although Appellants rely upon H. F. Allen Orchards v. United

States, 749 F.2d 1571 (Fed. Cir. 1984), and upon state court opinions from Idaho

(United States v. Pioneer Irrigation Dist., 157 P.3d 600 (Idaho 2007)) and Utah

(In re Unitah Basin, 133 P.3d 410 (Utah 2006)). Plaintiffs-Apps. Br. at 20-22, 28-

29, they fail to demonstrate any similarity between the applicable state laws

involved in those cases and the 1905 Act.

Second, Appellants erroneously analogize the laws of other states to

Oregon's common law governing the appropriation of water rights to derive an

ownership rule based solely on appurtenancy and beneficial use. Plaintiffs-App.

Br. at 30-33. 6 Appellants' analysis is flawed in two respects. First, Oregon's

common law for the appropriation of water rights is not applicable to the United

States' appropriation of water rights for federal reclamation projects, because the

6 Appellants also cite to the post-1905 statutory codification of the common

law principle of appurtenancy. Plaintiffs-App. Br. at 30 (citing Or. Rev. Stat. §

540.510 (200l)).

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common law has been supplanted by the 1905 Act which was enacted by the

Oregon legislature for this specific purpose. Second, Appellants' analysis of the

Oregon common law is in error. Whatever the law may be in other states, in

Oregon there is no general rule that landowners or other beneficial users are ipso

facto owners of project water fights.

Under Oregon law there are three elements of a valid common law

appropriation: (1) intent to appropriate water to a beneficial use; (2) diversion of

water from a stream or natural water body; and (3) application of water to

beneficial use. In re Water Rights of Deschutes River, 134 Or. 623,633, 286 P.

563, 567 (hereinafter, "Deschutes River'S). While it is generally correct that under

Oregon law water fights are appurtenant to the lands benefited thereby, Appellants'

assertion that appurtenancy and beneficial use determine ownership of water fights

in Oregon is simply incorrect. Plaintiffs-App. Br. at 31 ("the rule in Oregon is...

that beneficial users of the water.., possess a vested right in the water").

As made plain in Nevada Ditch Company and its progeny, developers who

appropriate water for irrigation projects may own the vested water rights for those

projects even though they do not own land within the project or themselves put the

water to beneficial use. 30 Or. at 94-98. Such water rights are perfected through

the agency of landowners or end users who put the water to beneficial use on their

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appurtenant lands, but those parties are mere agents of the appropriator who do not

themselves own a property interest in the water right, ld. Under this rule,

developers of every description who appropriate water for irrigation projects

(public corporations, irrigation companies, irrigation districts, and Reclamation)

have been declared owners of vested water rights for those projects. [d., In re

Waters of Walla Walla River, 141 Or. 492, 498-499, 16 P. 939, 941 (1933)

("When a public corporation complies with all of the provisions of this statute, it,

and not the owner of the land supplied, acquires the right to the use of the water.");

Deschutes River, 134 Or. 655 ("It was the plan of the Water Law of 1891 . . . and

runs through all the cases, that an appropriation may be made [by a water

company] for the use of another; and for the future use upon lands which the

appropriator does not then own, or which he does not contemplate owning, and

which he never does own."); Hood River, 114 Or. at 137-138 (irrigation company

declared owner of water rights for project water); Umatilla (United States owns

vested water rights to water appropriated for federal irrigation project under

Oregon's 1905 Act); Klamath Basin Adjudication, Lead Case No. 003 (United

States, not project water users or irrigation districts, owns the vested water rights

for the Klamath Project which were appropriated by the United States under

Oregon's 1905 Act); Fort Vannoy Ill'. Dist. 214 Or. App. at 90-98 (irrigation

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district, not the appurtenant landowner, owns the water rights to project water [or

the landowner's land). As explained in g"alla Walh_, the only interest acquired by

the end user in this circumstance is a contract right to the water supplied to his

land. 141 Or. at 497-498.7

Fort Vannoy Irr. District is the most recent rejection of appellants' central premise.

In that dispute between an irrigation district and a landowner within the district

over the ownership the water right to project water delivered to the landowner's

land, the court held that the irrigation district, not the landowner, owned the water

fight, s

7 Furthermore, to the extent that the project imgators claim water rights

based solely upon their bare beneficial use of project water alone, they fail to

establish ownership of vested water rights under the Oregon common law which,

as explained above, requires three elements: (1) intent, (2) diversion; and (3)

beneficial use. To the contrary, (l) none of them had the requisite intent in 1905

when the water was appropriated; and (2) the water is diverted from Upper

Klamath Lake by the United States, not the end users, and delivered to their land

by the United States ttu:ough contracts with various entities. Patterson, 204 F.3d at

1209 (water is diverted from Upper Klamath Lake by a local power company

pursuant to a contract with the Bureau of Reclamation); KID, 67 Fed. CI. at 511

(project water is delivered to end users by water delivery organizations pursuant to

contracts with Reclamation). See, Klamath Adjudication, Lead Case 003, at 21-23,

29-32 (rejecting the Project water users' argument that their bare beneficial use of

Project water means they own a vested water right).

8 This case rejects appellants' central premise, together with the erroneous

position espoused in the Oregon Water Resource Depamnent (OWRD) brief

submitted by and relied upon by appellants (Plaintiffs-App. Br. at 30-31), because

it rejects the Oregon Water Resources Commision's reasoning (continues)

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Finally, Appellants erroneously argue that the 1905 Act must be interpreted

in such a manner that it does not "contradict" Oregon's common law rule of

ownership based on appurtenancy and beneficial use. Plaintiffs-App. Br. at 37.

However, as explained above, there simply is no such rule in Oregon. Nor does

the vesting of water rights in the appropriator under the above cases upset the

doctrine of beneficial use or any other core principle of Oregon water law, as

suggested by appellants. Plaintiffs-App. Br. at 37. As ALl Russell noted in

Klamath Basin Adjudication, Lead Case No. 003. at 25, Klamath Project water is

put to beneficial use through the agency of the water users through contracts for

the distribution of water to land throughout the project; and the ALJ quantified the

United States' water right on the basis of that beneficial use. The rule allowing

developers to appropriate water tbr land owned by others effectuates the beneficial

use of water on their appurtenant lands just as effectively as any other arrangement

for holding and owning Oregon water rights. 9

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that only a landowner of appurtenant land can own the water right for that land.

214 Or. at 92-98.

9 AS explained in the foundational case of Nevada Ditch Company, 30 Or. at

96-97:

The general purpose of an appropriation is to utilize the water in the arid

regions, where the supply is limited, for the development and advancement

of beneficial industries. In many localities where the water is difficult of

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For all of the above reasons, Appellants' faulty arguments in support of an

ownership rule in Oregon based on appurtenancy and beneficial use must be

rejected. The decision below, which properly determined ownership of the Project

water rights based on the controlling Oregon law, should be affirmed.

3. No "Taking" Occurred In 2001 When The United States Curtailed Junior

Proiect Water Right Deliveries In Order To Protect Senior Indian Water

Rights_ By Virtue Of The Prior Appropriation Doctrine.

Even if the United States has no Project water rights, Appellants' taking

claim still fails under Oregon's prior appropriation doctrine. K/D. 67 Fed. CI. at

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diversion and the expense considerable in conducting it to the place of use, if

(continues) individual landowners, or even an aggregation of them, were

required to make the appropriation for use upon their own possessions, these

general purposes would be entirely defeated, simply for the reason that such

holders could not bear the burden of making the appropriation. In such cases

other persons possessing capital are often willing to make the diversion for

the benefit of those who have use for the water, but unless they may

contemplate a use which may be applied by the landowner to his

possessions, they could not even initiate the appropriation until they had

possessed themselves of lands in proportion to the amount of water it is

desired to appropriate; so that if the user nmst be the appropriator, and the

appropriator the landholder, the arid regions in many places would remain

arid, whereas otherwise they could be made to teem with fertility. No

sufficient reason has been suggested why the contemplated use may not be

for, and upon the possession of, a person other than the appropriator. The

authorities we have seen support the rule that it can be, and we believe it is

correct upon principle. We take it, therefore, that the bona fide intention

which is required of the appropriator to apply the water to some useful

purpose may comprehend a use to be made by or through another person,

and upon lands and possessions other than those of the (continued)

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539. The "first in time, first in right" rule is a bedrock principle of Oregon water

law. In times of shortage, senior water rights must be satisfied before junior rights

are entitled to receive water. Id. The priority date of Klamath Project water rights

is May 19, 1905, whethel owned by the United States or water users. Klamath

Basin Adjudication, Lead Case No. 003, at 17. Those rights are junior to the water

rights of the amici curiae Indian tribes discussed below.

It is well-settled that in managing Klamath Project water, the United States

has a legal responsibility to protect the senior water rights of the amici curiae

tribes. That point was conclusively resolved in prior litigation among the parties to

this appeal and is not subject to relitigation. Patterson, 204 F.3d at 1209, 1213-

1214; PCFFA, 139 F. Supp.2d at 1231; l_21ndra, 145 F. Supp. 2d at 1197,

1201-1202. The Klamath Tribes' water rigi_t priority date for fishery purposes is

"time immemorial"--the most senior in the Basin. United States v. Adair, 723 F.2d

at 1412-1415. Their water right claims in Upper Klamath Lake (the Project storage

reservoir) were recently upheld by ALJ Russell in In re the Determination of the

Relative Water Rights of the Klamath River, Case No. 286, Amended Order on

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appropriator. Thus the appropriator is enabled to complete and

establish his appropriation through the agency of the user.

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Motions tbr Legal Ruling (Oregon Water Resources Dept., Feb. 13, 2007). _°

Though quantification of tile Tribes' senior right is pending, tile United

States is legally obligated to protect it from diversions to satisl_, junior rights. See

Joint Board of Control v. United States, 832 F.2d 1127, 1131-32 (9 th Cir. 1987)

(upholding Bureau of Indian Affairs water management of an irrigation project to

protect unquantified tribal water rights); Kittitas Reclamation Dist. v. Sunnyside

Valley lrr. Dist., 763 F.2d 1032, 1033-34 (9 th Cir. 1985), cert. denied. 474 U.S.

1032 (1985) (ordering release of reservoir water to protect unquantified tribal

fishing and water rights). See also, cases protecting unquantified senior rights of

the amiei curiae tribes from diversions to junior Project rights: Patterson, 204 F.3d

at 1213-14; Kandra, 145 F. Supp. 2d at 1196-97, 1201, 1204.Similarly, the

downstream Hoopa Valley Indian Tribe and the Yurok Indian Tribe occupy

reservation lands set aside by the United States in the 19 th Century near the mouth

of the Klamath River. These tribes hold rights to take fish and associated water

rights within their reservations through a series of nineteenth century executive

orders issued in 1855, 1876, and 1891; the tribes' rights were also approved by

statute in 1864, and confinned by the 1988 Hoopa-Yurok Settlement Act, 25

_oThis order can be accessed at the following website:

http://www.schlosserlawfiles.com/-hoopa/Case286.pd f.

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U.S.C. §§1300i et seq. iLParravano, 70 F.3d at 547; United States v. Eberhart, 789

F.2d 1354, 1359 (9 tl_Cir. 1986). See also. Patterson, 204 F.3d at 1209, 1213-1214;

PCFFA, 138 F. Supp.2d at 1231; Kandra, 145 F. Supp.2d at 1197. Even though

their rights have not been quantified, the United States still must protect them from

infringement by junior water rights in its management of the Klamath Project. _2

The seniority of the amiei curiae Indian tribes' water rights over any junior

water rights of the Project water users is recognized in Patterson, 204 F.3d at

1213-1214, which affirmed tile district court's finding that the irrigators' rights, if

any, "were subservient to senior tribal water rights" and held that Reclamation "has

a responsibility to divert the water and resources necessary to fulfill the Tribes'

rights, rights that take precedence over any alleged rigilts of the Irrigators." Thus,

I_See, S. Rep. No. 100-564 at4-6 (Sept. 30, 1988); Pub. L. 100-580, §l, 102

Stat. 2924 (Oct. 31, 1988); Pub. L. 102-575, § 3406(b)23, 106 Stat. 4603, 4716

(Oct. 30, 1992).

_2 See also, 1995 opinion of the Department of the Interior Office of the

Solicitor, Pacific Southwest Region, at 8 (concluding that Reclamation must

protect the tribes' fishing rights) (accessible at:

http://www.schlosserlawfiles.com/-hoopa/SolMem072595.pd f (last modified

Dec. 8, 2006); Memorandum, Department of the [nterior Office of the Solicitor,

Pacific Southwest Region, re: Oregon Assistant Attorney General's Mar. 18, 1996

letter regarding Klamath Basin Water Rights Adjudication (Jan. 9, 1997) at 5-6

(accessible at: http://www.schlosserlawfiles.com/-hoopa/SolMem010997.pdf (last

modified Aug. 23, 2007).

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the United States has both the authority and legal responsibility to operate the

Project "to comply with Tribal water requirements." Id.

Furthermore, whenever the United States acts to protect those rights from

infringement by junior water fight diversions, as was the case in the 200 l, it cannot

be said that a taking of the junior right occurs due to the relative priority of those

respective water rights. Oregon's prior appropriation doctrine "prioritizes claims of

rights to water according to the simple rule: first in time, first in right." United

States v. Oregon Water Resources Dept., 774 F. Supp. 1568, 1573 (D. Or. 1991),

affd in part. and rev'd, in part, or, other grds., 44 F.3d 758 (9 th Cir. 1994). As a

matter of state and federal law, the rule requires that in times of shortage senior

rights must be satisfied before junior rights are entitled to receive water, and this

pertains regardless of Reclamation's actions. _3 See, authorities cited by tile court

_3 Appellants do not deny in their opening brief that the United Stales'

curtailment of water deliveries in 2001 was done in order to protect endangered

species in Upper Klamath Lake and the Klamath River and to protect tribal water

rights and trust resources as discussed in Kandra, and PCFFA, but question the

efficacy of that action stating the decision "was not based on sound science and

apparently did nothing to help the fish." Plaintiffs-App. Br. at 6-7, 52 (citing a

National Academy of Science Report regarding endangered sucker habitat in

Upper Klamath Lake). We disagree. The biological opinions in 2001 considered

additional factors necessary to avoid jeopardy; and while the Academy Report

criticized the biological opinions, it did not detract from the fact that low flows in

the Klamath River, caused by diversions in 2002, was a substantial contributing

cause to the largest adult sahnon fish kill in recorded history. (continues)

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below (67 Fed. CI. at 539 n. 60-61, including Colorado River Water Conserv. Dist.

v. United States, 424 U.S. 800, 805 (1976)). Thus, the lower court correctly held

any irrigator fights are "subservient to the prior interests.., of the various tribes"

and "could not have been taken or infringed upon by the failure of the Bureau to

deliver water in 2001." Id. Under the doctrine of prior appropriation, even if

Appellants were the owners of the Project water rights, which they are not, their

takings claims would still fail, and the decision below should be affirmed for this

reason also.

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Pac!fic Coast Federation of Fishermen's Assoc. v. Bureau of Reclamation, 426

F.3d at 1087. As a California Department of Fish and Game Report explained,

"flow management under the 2002 Biological Opinion... is the only major factor"

distinguishing (continued oil the next page) 2002 t'rom 2001 to have caused the

fish kill. See. California Department of Fish and Game, September 2002 Klamath

River Fish Kill: Final Analysis of Contributing Factors (July 2004)

(accessible at: http://www.sch[osserlawfiles.com/_hoopa/CDFG2004.pdf See also,

U.S. Fish and Wildlife Service, Klamath River Die-Off September 2002, Rep. No.

AFWO-F-02-03 (Nov. 7, 2003) ("The fish die-off in 2002 coincided with.., the

lowest discharge at Iron Gate [Dam, downstream of the Klamath Project] for years

with large run sizes.") (accessible at:

http://www.schlosserlawfiles.com/-hoopa/USFWS2003.pdf ). The United States

House of Representatives Natural Resources Committee recently held a hearing to

inquire whether the fish kill was the result of political intervention into Klamath

Project water management. See. Full Committee Oversight Hearing: "Crisis of

Confidence: The Political lntluence of the Bush Administration on Agency

Science and Decision-Making," Committee on Natural Resources, House of

Representatives (July 3 I, 2007) (accessible at:

http://resourcescommittee.house.gov/index.php?option=com_calpro&Itemid=32&

extmode=view&extid=85 (Last visited Oct. 10, 2007).

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CONCLUSION

For tile above reasons, the decision below should be affimled.

Dated this 30 th day of October, 2007.

Respectfully submitted,

/z/_ #e (__#_#-Walter R. Echo-Hawk

NATIVE AMERICAN RIGHTS FUND

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Thomas P. Schlosser

MORISSET, SCHLOSSER,

JOZWIAK & MCGAW

801 2nd Ave., #1115

Seattle, WA 98104

(206) 386-5200

Counsel for Klamath Tribes and

Hoopa Valley Indian Tribe

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CERTIFICATE OF COMPLIANCE WITH

FEDERAL CIRCUIT RULES 29(d) AND 32(a)(7)

The principal attorney of record for the amici curiae Klamath Tribes and

Hoopa Valley Indian Tribe states that this amicus curiae brief complies with the

type-volume limitations of the Federal Circuit Rules 29(d) and 32(a)(7). The brief

contains 6,005 words, including the parts of the brief exempted by Federal Rule of

Appellate Procedure 32(a)(7)(B)(iii). In addition, counsel states that this brief

complies with the typeface requirements of Federal Rule of Appellate Procedure

32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure

32(a)(6). This brief has been prepared in proportionally spaced typefacing using

Microsoft Word 2003, in 14 font, Times New Roman typeface.

Walter R. Echo-Hawk

Attorney for Klamath Tribes and

Hoopa Valley Indian Tribe

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CERTIFICATE OF SERVICE

The undersigned certifies that on this 18't' day of December 2007, two

true and correct copies of the foregoing Corrected Amicus Curiae Brief of

the Klamath Tribes and the Hoopa Valley Indian Tribe in Support of the

United States Supporting Affirmance were served via first class U.S. mail to

the following:

Katherine J. Barton

Kathryn E. Kovacs

Appellate SectionEnvironment and Natural Resources Div.

U.S. Department of JusticeP.O. Box 23795, L'Enfant Plaza Station

Washington, D.C. 20026(202) 353-7712

Katherine.barton@usdoj.gov

Kathryn.kovacs@usdoj.gov

Todd Dale True

Earth Justice 705 Second Avenue,Suite 203

Seattle, WA 98104-1711

(206) 343-7340

ttrue@earthj ustice.or_

Nancie G. Marzulla

Roger J. MarzullaMarzulla & Ma_ulla

1350 Connecticut Ave., N.W., Suite 410

Washington, D.C. 20036(202) 822-6760

William M. GanongGeneral Counsel

Klamath Irrigation district

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514 Walnut Avenue

Klamath Falls, OR 97601

(541) 882-7228

December l_t_' 2007

Attorney

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

(303) 443-7776 (tax)

wechohwk@narf.org