               In the United States Court of Federal Claims
                                            No. 16-1276L
                                       (Filed: March 25, 2020)

                                                       )
 CITY OF FRESNO, et al.,                               )
                                                       )
                      Plaintiffs,                      )    Keywords: Takings Clause; Fifth
                                                       )    Amendment; Breach of Contract; Water
 v.                                                    )    Rights; Bureau of Reclamation; Motion to
                                                       )    Dismiss; Subject-Matter Jurisdiction;
 THE UNITED STATES OF AMERICA,                         )    Failure to State a Claim
                                                       )
                      Defendant,                       )
 and                                                   )
                                                       )
 SAN LUIS & DELTA-MENDOTA WATER                        )
 AUTHORITY, et al., and CENTRAL CALIFORNIA             )
 IRRIGATION DISTRICT, et al.                           )
                                                       )
                      Defendant-Intervenors.           )
                                                       )

Nancie G. Marzulla and Roger J. Marzulla, Marzulla Law, LLC, Washington, DC, for Plaintiffs.
Craig Parton and Timothy E. Metzinger, Price, Postel & Parma LLP, Santa Barbara, CA, Of
Counsel.

Lucinda J. Bach, Environment and Natural Resources Division, and Geoffrey M. Long, Civil
Division, Commercial Litigation Branch, U.S. Department of Justice, Washington, DC, with
whom was Jean E. Williams, Deputy Assistant Attorney General, Washington, DC, for
Defendant. Amy Aufdemberge, Assistant Regional Solicitor, Office of the Solicitor, U.S.
Department of Interior, Sacramento, CA, Of Counsel.

Paul R. Minasian, Andrew J. McClure, and Jackson A. Minasian, Minasian, Meith, Soares,
Sexton & Cooper, LLP, Oroville, CA, for Defendant-Intervenor San Joaquin River Exchange
Contractors Water Authority.
Daniel J. O’Hanlon, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, CA, for Defendant-
Intervenor San Luis & Delta-Mendota Water Authority.

David T. Ralston, Foley & Lardner LLP, Washington, DC, for Defendant-Intervenors Byron
Bethany Irrigation District and Del Puerto Water District. Frank S. Murray and Micah Zomer,
Foley & Lardner LLP, Washington, DC, Of Counsel.

Jon D. Rubin, General Counsel, Westlands Water District, Sacramento, CA, for Defendant-
Intervenor Westlands Water District.
Ellen L. Wehr, Grassland Water District, Los Banos, CA, for Defendant-Intervenor Grassland
Water District.

Thomas M. Berliner, Duane Morris LLP, San Francisco, CA, for Defendant-Intervenor San Luis
Water District.

Steven Stadler, James Irrigation District, San Joaquin, CA, for Defendant-Intervenor James
Irrigation District.

Anthony T. Fulcher, Santa Clara Valley Water District, San Jose, CA, for Defendant-Intervenor
Santa Clara Valley Water District. Stanly Yamamoto, Santa Clara Valley Water District, San
Jose, CA, Of Counsel.
                                   OPINION AND ORDER

KAPLAN, Judge.

         Plaintiffs in this action include the City of Fresno, California, seventeen irrigation
districts in California that have entered contracts with the Bureau of Reclamation to receive
water supplied by the Friant Division of the Central Valley Project (“CVP”) (hereinafter the
District Plaintiffs), 1 and eight individual landowners who rely upon water supplied to them by
the irrigation districts for agricultural purposes (hereinafter the Individual Plaintiffs). 2 The
Individual Plaintiffs purport to sue on behalf of themselves and similarly-situated property
owners served by the CVP.

        Plaintiffs allege that in 2014, in the wake of water shortages caused by a severe drought,
Reclamation provided the City and the District Plaintiffs with only a fraction of the water to
which they claim entitlement under their contracts. According to Plaintiffs, Reclamation instead
“appropriated all of the water of the Friant Division of the [CVP] to satisfy what it determined to
be a contractual requirement to provide this water as substitute water under a 1939 Contract . . .
to a group of water users referred to as the Exchange Contractors.” 2d Am. Compl. ¶ 32. As a
result Plaintiffs allege, the City and the District Plaintiffs, as well as their water users, including
the Individual Plaintiff landowners, “suffered huge losses of annual and permanent crops, loss of


1
 The “District Plaintiffs” are: 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, Porterville Irrigation District, Saucelito Irrigation
District, Shafter-Wasco Irrigation District, Southern-San Joaquin Municipal Utility District,
Stone Corral Irrigation District, Tea Pot Dome Water District, Terra Bella Irrigation District, and
Tulare Irrigation District. 2d Am. Compl. For Taking of Water Rights Without Just
Compensation & for Breach of Contract (“2d Am. Compl.”) ¶¶ 4–18, ECF No. 128-1.
2
  The “Individual Plaintiffs” are: Loren Booth LLC, Matthew J. Fisher, Julia K. Fisher, Hronis
Inc., Clifford R. Loeffler, Maureen Loeffler, Douglas Phillips, and Caralee Phillips. 2d Am.
Compl. ¶¶ 21–25.



                                                   2
groundwater reserves, water shortages and rationing, and incurred millions of dollars to purchase
emergency water supplies.” Id. ¶ 33.

        Plaintiffs contend that Reclamation breached its contract with the City and the District
Plaintiffs “by failing to make available to them the quantities required by Article 3 of their
contracts.” Id. ¶ 46. They also allege that “[t]he water and water rights of the Friant Division
appropriated by the United States in 2014 were the property of Plaintiffs, and their landowners
and water users, each of which are the beneficial owners of the water rights.” Id. ¶ 34. According
to Plaintiffs, when Reclamation provided the water to the Exchange Contractors, rather than the
City and the District Plaintiffs, it effected a taking of their property without just compensation, in
violation of the Fifth Amendment. Id. ¶ 35.

       Presently before the Court are motions to dismiss filed by the United States and the
Defendant Intervenors 3 pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of
Federal Claims (“RCFC”). The government contends that the City and District Plaintiffs lack
standing to pursue Fifth Amendment takings claims because under California law they do not
have property interests in the water supplied to them by Reclamation. According to the
government, whatever rights the City and the District Plaintiffs possess arise exclusively under
their water-supply contracts with Reclamation.

         The United States further argues that the City and the District Plaintiffs have failed to
state a claim for breach of the water-supply contracts because those contracts immunize the
United States from any liability in cases of shortages caused by actions Reclamation took to meet
its obligations under the exchange contracts. Further, the government contends that the
Individual Plaintiffs also have no water rights under California law; nor are they third-party
beneficiaries to the water-supply contracts between Reclamation and the City or Reclamation
and the District Plaintiffs. 4

        The Intervenor Exchange Contractors make similar arguments, but offer additional
grounds for dismissal. They contend that Plaintiffs’ claims seek declaratory relief that is beyond
the Court’s power to grant. They also argue that Plaintiffs’ Second Amended Complaint fails to
allege that the United States’ determination of the condition of shortage was arbitrary and
capricious, as required by the shortage provisions in the water-supply contracts. For the reasons

3
  There are two sets of defendant intervenors: 1) San Luis & Delta-Mendota Water Authority
along with its member districts—Westlands Water District, Santa Clara Valley Water District,
Grassland Water District, San Luis Water District, James Irrigation District, Byron Bethany
Irrigation District, and Del Puerto Water District—(collectively the District Intervenors); and 2)
Central California Irrigation District, San Luis Canal Company, Firebaugh Canal Water District,
Columbia Canal Company, the San Joaquin River Exchange Contractors Water Authority—
(collectively the Exchange Contractor Intervenors).
4
  The District Intervenors make similar arguments in seeking to dismiss the Individual Plaintiffs’
contract claims for lack of standing. They also argue that if the Court dismisses the City and
District Plaintiffs’ contract claims, then it should also dismiss the City and District Plaintiffs’
takings claims.



                                                  3
set forth below, the motions to dismiss are GRANTED-IN-PART and DENIED-IN-PART.
The City and the District Plaintiffs have adequately pleaded a breach of contract and, thus, the
motions are DENIED as to those claims. The motions are GRANTED as to all remaining
claims, including those presented by the Individual Plaintiffs as third-party beneficiaries of the
water-supply contracts.

                                         BACKGROUND 5

I.     The Central Valley Project

        “The Central Valley Project is the largest federal water management project in the United
States.” Stockton E. Water Dist. v. United States, 583 F.3d 1344, 1349 (Fed. Cir. 2009). It
consists of a massive set of dams, reservoirs, hydropower generating stations, canals, electrical
transmission lines, and other infrastructure. United States v. Gerlach Live Stock Co., 339 U.S.
725, 728 (1950). The CVP “was built to serve the water needs in California’s Central Valley
Basin,” Stockton E. Water Dist., 583 F.3d at 1349, which has been characterized as “the most
agriculturally-productive region in the world,” Westlands Water Dist. v. United States
(Westlands Water Dist. I), 153 F. Supp. 2d 1133, 1138 (E.D. Cal. 2001), aff’d, 337 F.3d 1092
(9th Cir. 2003). The CVP was originally conceived by the State of California, but “was taken
over by the United States in 1935 and has since been a federal enterprise.” Gerlach Live Stock
Co., 339 U.S. at 728. It is operated by the Bureau of Reclamation, a division of the Department
of the Interior. Stockton E. Water Dist., 583 F.3d at 1349.

       The CVP’s purposes were to “improv[e] navigation, regulat[e] the flow of the San
Joaquin River and the Sacramento River . . . [to store and deliver] waters thereof, for the
reclamation of arid and semiarid lands . . . and other beneficial uses.” Westlands Water Dist. v.
United States (Westlands Water Dist. II), 337 F.3d 1092, 1095 (9th Cir. 2003) (quoting Act of
August 26, 1937, Pub. L. No. 75-392, 50 Stat. 844, 850). The CVP achieved these purposes by
“re-engineer[ing] [the] natural water distribution” of California’s Central Valley. Gerlach Live
Stock Co., 339 U.S. at 728.

        As the government observes, “[a]s originally conceived, the CVP developed a water
supply from two rivers: the Sacramento and the San Joaquin.” Corrected Resp. of the U.S. to
Show Cause Order at 4, ECF No. 113. The Sacramento River generates a “surplus of water
because of heavier rainfall in the northern region but has little available tillable soil.” Westlands
Water Dist. I, 153 F. Supp. 2d at 1146 (quoting Cty. of San Joaquin v. State Water Res. Control
Bd., 63 Cal. Rptr. 2d 277, 279 (Cal. Ct. App. 1997)) (alterations omitted). The San Joaquin
River, by contrast, cannot supply sufficient water for irrigation and other beneficial uses in the
San Joaquin Valley. Id.




5
  The facts in this section are drawn from the parties’ pleadings and their filings on the motions
to dismiss.



                                                  4
        The claims before the Court in this case arise out of the Project’s Friant Division, 2d Am.
Compl. ¶ 29, 6 where the Friant Dam impounds all of the waters of the San Joaquin River and
stores them in Millerton Lake. The waters stored in Millerton Lake are distributed via the
Madera and Friant-Kern Canals to water and irrigation districts like the District Plaintiffs that
hold contracts with Reclamation. See Dugan v. Rank, 372 U.S. 609, 613 (1963); Westlands
Water Dist. II, 337 F.3d at 1096; United States v. State Water Res. Control Bd. (“SWRCB”), 227
Cal. Rptr. 161, 167 (Cal. Ct. App. 1986).

II.    Reclamation’s Water Rights

       Congress passed the Reclamation Act of 1902 to facilitate federal management of limited
water resources in the western states. See California v. United States, 438 U.S. 645, 649 (1978).
Under the act, funds reserved from the sale of public lands in several western states, including
California, are deposited into a “reclamation fund,” controlled by the Treasury, which is used for
“the construction and maintenance of irrigation works for the storage, diversion, and
development of waters for . . . [these] arid and semiarid lands.” Reclamation Act of 1902, Pub.
L. 57-161, § 1, 32 Stat. 388 (1902).

        To “facilitate water distribution” and “provide a reliable and stable water supply,” the
United States had to “obtain, by purchase or otherwise, rights (both appropriative and riparian)
from water-rights holders in strategic areas.” Westlands Water Dist. I, 153 F. Supp. 2d at 1143;
see also Gerlach Live Stock Co., 339 U.S. at 734 (observing that “[b]y its command that the
provisions of the reclamation law should govern the construction, operation, and maintenance of
the several construction projects, Congress directed the Secretary of the Interior to proceed in
conformity with state laws, giving full recognition to every right vested under those laws”).
Reclamation used three methods to secure the water rights it needed to operate the CVP.

        First, in 1939, Reclamation entered purchase agreements with downstream holders of
riparian rights on the San Joaquin River (the Exchange Contractors). See 2d Am. Compl. Ex. 1,
ECF No. 128-2 (Contract for Purchase of Miller and Lux Water Rights—hereinafter the
“purchase contract”). Under these agreements, the Exchange Contractors “sold all of their San
Joaquin River water rights to the United States, except for ‘reserved water’” to which they held
vested rights. Westland Water Dist. II, 337 F.3d at 1097.

       Second, Reclamation and the Exchange Contractors entered “Contract[s] for the
Exchange of Waters” under which Reclamation was given authority to exercise the contractors’
remaining (reserved) rights to San Joaquin River waters in exchange for the agreement of the
Bureau to provide them with “substitute water.” Westlands Water Dist. v. Firebaugh Canal, 10
F.3d 667, 669 (9th Cir. 1993); see also 2d. Am. Compl. Ex. 2 (Contract for Exchange of Waters

6
 The Friant Division encompasses one of the nine distinct geographic areas, known as
“divisions,” that make up the CVP. Westlands Water Dist. I, 153 F. Supp. 2d at 1138 (E.D. Cal.
2001). It consists of the Friant Dam, Millerton Lake, the Friant-Kern Canal, the Madera Canal,
and the John A. Franchi Diversion Dam. Id. at 1142.




                                                5
(July 27, 1939)), ECF No. 128-3; id. Ex. 3 (Second Amended Contract for Exchange of Waters
(February 14, 1968) —hereinafter the “exchange contract”), ECF No. 128-4. The exchange
contracts further provided that Reclamation’s rights to exercise the reserved rights of the
Exchange Contractors were conditional. They would last “so long as, and only so long as, the
United States does deliver to [the Exchange Contractors] by means of the [Central Valley]
Project or otherwise substitute waters in conformity with this contract.” Id. Ex. 3, at 8 (Article 4
of Second Amended Exchange Contract). 7

         Reclamation secured the remaining water rights it needed to operate the CVP from the
California State Water Resources Control Board (“SWRCB”). See generally California v. United
States, 438 U.S. 645 (1978). Specifically, on June 2, 1959, the SWRCB issued Decision No.
D-935, which authorized and issued permits to allow Reclamation to impound and divert the
entire flow of the San Joaquin River at Friant Dam, and to store and release the water for re-
diversion into the Friant-Kern and Madera Canals. See Cal. SWRCB Decision No. D-935 (June
2, 1959),
https://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/decisions/d0900_d
0949/wrd935.pdf.

        In short, “[t]he United States . . . acquired, by exchange, purchase, exercise of eminent
domain, and appropriation, riparian and appropriative rights to all water within the CVP.”
Westlands Water Dist. I, 153 F. Supp. 2d at 1144 (citing 43 U.S.C. § 511 (2001)). As a result,
“[a]ccess to CVP water is only by contract with the United States.” Id.

III.   The Water-Supply Contracts

        Reclamation has entered water-supply contracts with the City and each of the District
Plaintiffs. See, e.g., 2d Am. Compl. Ex. 5 (Arvin-Edison water-supply contract), ECF No. 128-6.
The water-supply contracts provide at Article 3(a) that “[d]uring each year, consistent with all
applicable State water rights, permits, and licenses, Federal law . . . and subject to the provisions
set forth in Articles 12 and 13 of this Contract, the Contracting Officer shall make available for
delivery” specified amounts of Class 1 and Class 2 water. Id. at 18.

         Article 3(n) of the water-supply contracts makes the rights of the Districts “subject to the
terms of [the exchange contracts].” Id. at 24. It states, however, that “[t]he United States agrees
that it will not deliver to the Exchange Contractors thereunder the water of the San Joaquin River
unless and until required by the terms of said contract.” Id. Article 3(n) also states that the United
States further agreed not to “voluntarily and knowingly determine itself unable to deliver to the
Exchange Contractors entitled thereto from water that is available or that may become available
to it from the Sacramento River and its tributaries or the Sacramento-San Joaquin Delta those
quantities required to satisfy the obligations of the United States under” the exchange and
purchase contracts. Id.




7
 Citations to the exhibits appended to the second amended complaint refer to the pagination
assigned by the court’s electronic filing system.



                                                  6
        Article 12 of the water-supply contracts provides in pertinent part that Reclamation will
“make all reasonable efforts to optimize delivery of the Contract Total subject to . . . [inter alia]
the obligations of the United States under existing contracts, or renewals thereof, providing for
water deliveries from the Project.” Id. at 123. In Article 13, Reclamation agrees that “the
Contracting Officer will use all reasonable means to guard against a Condition of Shortage.” Id.
at 124. Article 13(b) further provides that “[i]f there is a Condition of Shortage because of . . .
actions taken by the Contracting Officer to meet legal obligations . . . then, except as provided in
subdivision (a) of Article 19 of this Contract, no liability shall accrue against the United
States . . . for any damage, direct or indirect, arising therefrom.” Id. at 125. Article 19(a)
provides, in turn, that “[w]here the terms of this Contract provide for actions to be based upon
the opinion or determination of either party to this Contract, said terms shall not be construed as
permitting such action to be predicated upon arbitrary, capricious, or unreasonable opinions or
determinations.” Id. at 131–32.

IV.    Plaintiffs’ Legal Claims in this Case Regarding Water Year 2014

       A.      Breach of Water-Supply Contracts

        In 2014, California was in the second year of a multi-year severe drought. See Friant
Water Auth. v. Jewell, 23 F. Supp. 3d 1130, 1140 (E.D. Cal. 2014). Plaintiffs allege that in that
year, “the United States breached Plaintiffs’ water-supply contracts by failing to make available
to them the quantities required by Article 3 of their contracts.” 2d Am. Compl. ¶ 46. They assert
that during that year “there was a substantial quantity of San Joaquin River water available to the
United States, stored and otherwise existing within the Friant Division, even though precipitation
had been low during the winter.” Id. According to Plaintiffs, “in breach of their permanent
contracts, the United States failed and refused to make that water available to Plaintiffs (with the
minor exception of small quantities of ‘health and safety’ and ‘carry over water’), determining
instead to release and deliver that water to the Exchange Contractors.” Id. They seek an award of
damages to compensate them for “the cost of purchasing replacement water for the quantities not
made available by Reclamation, management and operations costs for 2014 (including the cost of
delivering the water to the Exchange Contractors),” and other related costs “plus other damages
as yet unascertained.” Id. ¶ 50.

       B.      Fifth Amendment Taking

        In addition to their breach of contract claim, Plaintiffs assert that the actions Reclamation
took in 2014 resulted in a taking of their property without just compensation, in violation of the
Fifth Amendment. They allege that “[e]ach municipal, industrial, and agricultural water user
within Fresno and Plaintiff water agencies holds a property right in the beneficial use of the
water and water rights of the San Joaquin River” and that the United States acquired such rights
“to benefit the landowners and water users within the Friant Division of the Central Valley
Project.” Id. ¶ 31. Therefore, they allege, the United States’ decision in 2014 to “appropriat[e] all
of the water of the Friant Division of the [CVP] to satisfy what it determined to be a contractual
requirement to provide th[e] water as substitute water” under the exchange contracts, Id. ¶ 32,
resulted in a Fifth Amendment taking of their property, id. ¶ 34. “As a direct and proximate
result of the United States’ failure to pay just compensation for the water and water rights of the
Friant Division it appropriated in 2014,” Plaintiffs contend, they “have been damaged equal to


                                                  7
the fair market value of the property appropriated, including compound interest from the date of
taking, in an amount that will be proved at trial.” Id. ¶ 36.

V.      Previous District Court Suit

        In 2014, thirteen of the plaintiffs in this litigation filed suit in the United States District
Court for the Eastern District of California. See Compl., Friant Water Auth. v. Jewell, 23 F.
Supp. 3d 1130 (E.D. Cal. 2014) (No. 1:14-cv-765); 1st Am. Compl., Friant Water Auth. v.
Jewell, 23 F. Supp. 3d 1130 (E.D. Cal. 2014) (No. 1:14-cv-765). 8 In that case (as relevant here),
the plaintiffs also alleged that Reclamation’s 2014 water allocation decisions breached their
water-supply contracts and violated the Fifth Amendment’s Takings Clause. Id. ¶¶ 99–112. In
addition, they claimed that Reclamation’s water allocation decisions violated the Administrative
Procedure Act. Id. ¶ 98.

        On December 1, 2014, the district court denied the plaintiffs’ motion to transfer the case
to the Court of Federal Claims. It reasoned that it possessed jurisdiction over the breach of
contract claims “to the extent [plaintiffs] request equitable relief available under the APA.”
Friant Water Auth. v. Jewell, No. 1:14-cv-765, 2014 WL 6774019, at *12 (E.D. Cal. Dec. 1,
2014) (denying request to transfer but striking the request for damages). It declined to transfer
the takings claim because it found that claim as presented to it “frivolous.” It so found because
the taking claim was “premised upon the underlying allegation that Reclamation failed to
correctly implement provisions in the [Central Valley Project Improvement Act],” and, as the
court noted, clear Federal Circuit precedent “bars takings claims premised upon the United
States’ violation of a statute.” Id. (citing Lion Raisins Inc. v. United States, 416 F.3d 1356, 1370
(Fed. Cir. 2005)) (noting also that, “in a takings case, [the court] assume[s] that the underlying
governmental action was lawful”). Thus, the district concluded that transferring the case to the
Court of Federal Claims would “not be in the interests of justice.” Id.

       On December 18, 2014, plaintiffs voluntarily dismissed their claims in the district court
pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. Notice of Voluntary
Dismissal, Friant Water Auth., No. 1:14-cv-765 (E.D. Cal. Dec. 18, 2014); see also Mem. Dec.
& Order Re Pls.’ Mot. to Transfer to Ct. of Federal Claims, Friant Water Auth., No. 1:14-cv-765
(E.D. Cal. Jan. 5, 2015) (ordering that “all remaining claims against all remaining parties [be]
dismissed without prejudice” and that the case be closed).

VI.     The Present Suit

       Plaintiffs filed the present action on October 5, 2016. The case was assigned to then-
Judge (now Senior Judge) Mary Ellen Coster Williams. The original complaint was brought only

8
  Plaintiffs that also participated in the earlier district court case are Arvin-Edison Water Storage
District, Delano-Earlimart Irrigation District, Lindmore Irrigation District, Lindsay-Strathmore
Irrigation District, Lower Tule River Irrigation District, Orange Cove Irrigation District,
Porterville Irrigation District, Saucelito Irrigation District, Shafter-Wasco Irrigation District,
Stone Corral Irrigation District, Tea Pot Dome Water District, Terra Bella Irrigation District, and
Tulare Irrigation District.



                                                   8
by the City and the District Plaintiffs and it alleged a Fifth Amendment taking as the only cause
of action. ECF No. 1. The government moved to dismiss the complaint pursuant to
RCFC 12(b)(1) and (6). It contended that the plaintiffs lacked standing to pursue a Fifth
Amendment Takings claim because they lacked the requisite property interest in the water they
contended the government had appropriated, and because they failed to otherwise adequately
plead a takings claim. ECF No. 7.

       Several months later, the District Intervenors and the Exchange Contractor Intervenors
sought to intervene in the case on the side of the government. ECF Nos. 10, 25. Plaintiffs
objected to the motions to intervene. ECF No. 40. The Court initially deferred a ruling on the
motions to intervene pending its decision on the government’s first motion to dismiss, see ECF
No. 52, but subsequently granted the motion during a hearing held on November 6, 2018, Tr. of
Show Cause Hr’g Held on Nov. 6, 2018, at 105:21–23, ECF No. 123.

        The Court held oral argument on the government’s first motion to dismiss on December
11, 2017. During that hearing the Court stated its intent to “defer ruling on the standing issue”
and to deny the 12(b)(6) motion for the purpose of allowing further development of the record.
Tr. of Oral Arg. Held on Dec. 11, 2017 at 110:17–20, ECF No. 58; see also Order at 1, ECF No.
56 (memorializing the ruling announced during oral argument).

        On January 30, 2018, Plaintiffs filed an amended complaint with leave of the court, ECF
No. 65, to which the government filed an answer on February 26, 2018, ECF No. 66. On May
31, 2018, the Court issued a show cause order directing Plaintiffs to demonstrate: 1) “[w]hy the
water rights at issue are not exclusively derived from contract as a matter of law”; and 2)
“[w]hat, if any, property rights exist independently of contractual rights.” Order, ECF No. 76.
After receiving responses from the parties, the Court held a show cause hearing on November 6,
2018 during which it directed the parties to submit a proposal for further proceedings in the case.
Tr. of Show Cause Hr’g Held on Nov. 6, 2018, at 105:24–106:15.

       After receiving a proposal from all parties (who could not agree on a path forward), the
Court granted the government’s request to stay discovery and issued a scheduling order to
govern future proceedings. ECF No. 124. In accordance with the Court’s order, Plaintiffs filed a
second amended complaint on December 18, 2018, in which they added a claim for breach of
contract. See 2d Am. Compl. ¶¶ 38–50.

       The government and Defendant-Intervenors filed the motions to dismiss presently before
the Court on May 15, 2019. The motions were fully briefed as of July 1, 2019. ECF Nos. 144–
146. Oral argument was initially scheduled for November 18, 2019, but was rescheduled at the
request of the government until January 9, 2020. ECF No. 154.

        When the parties convened for oral argument, Senior Judge Coster Williams announced
her recusal on the basis of a recently developed conflict. See ECF Nos. 157, 160. The case was
transferred to the undersigned on January 22, 2020. ECF No. 158. A status conference was held
on February 3, 2020, ECF No. 161. An oral argument on the pending motions was scheduled,
ECF No. 162, and held on March 5, 2020.




                                                 9
                                          DISCUSSION

I.     Contract Claims

       A.      Motions to Dismiss for Lack of Subject-Matter Jurisdiction

         As noted, Plaintiffs allege that in 2014 the government breached the water-supply
contracts by not making available to the City and the District Plaintiffs the quantities of water
required under Article 3(a). The Intervenor Exchange Contractors have moved to dismiss
Plaintiffs’ contract claims under RCFC 12(b)(1) on the theory that Plaintiffs seek declaratory
relief that lies beyond the Court’s jurisdiction. Mem. of Points & Auths. in Support of Def.-
Intervenor San Joaquin River Exchange Contractors Water Auths.’ Mot. to Dismiss (“Intervenor
Exchange Contractors’ Mem.”), ECF No. 137-1. The District Intervenors have moved to dismiss
the claims of the Individual Plaintiffs for lack of jurisdiction for another reason—they argue that
the Individual Plaintiffs are not in privity of contract with the government and are not third-party
beneficiaries to any contract. See Mot. to Dismiss & Mem. in Support of Mot. By San Luis &
Delta-Mendota Water Auth. et al. (“District Intervenor’s Mem.”) at 1–2, ECF No. 138.

        For the reasons set forth below, the Court concludes that the jurisdictional objection
posed by the Intervenor Exchange Contractors lacks merit. On the other hand, and also for
reasons set forth below, the Court finds persuasive the arguments of the government and the
District Intervenors that the Individual Plaintiffs lack standing to pursue their breach of contract
claims because they are not third-party beneficiaries of the water-supply contracts.

               1.      The Motion of the Intervenor Exchange Contractors

        When ruling on a motion to dismiss for lack of subject-matter jurisdiction, the Court
“consider[s] the facts alleged in the complaint to be true and correct.” Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988) (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). “If a motion to dismiss for lack of subject-matter jurisdiction, however, challenges
the truth of the jurisdictional facts alleged in the complaint, the [court] may consider relevant
evidence in order to resolve the factual dispute.” Id.

         Under the Tucker Act, 28 U.S.C. § 1491(a)(1), this Court has jurisdiction “to render
judgment upon any claim against the United States founded . . . upon any express or implied
contract with the United States, or for liquidated or unliquidated damages in cases not sounding
in tort.” Plaintiffs’ claims seeking damages for the alleged breach of the water-supply contracts,
fall squarely within this grant of jurisdiction. Nonetheless, the Intervenor Exchange Contractors
contend that this Court lacks jurisdiction to decide those claims because doing so would require
the Court to issue a declaratory judgment regarding the appropriate interpretation of the
exchange contracts, and the scope of the Exchange Contractors’ rights under those agreements.
Intervenor Exchange Contractors’ Mem. at 16–22. As the Intervenor Exchange Contractors point
out, this Court lacks general jurisdiction to issue declaratory judgments. See Nat’l Air Traffic
Controllers Ass’n v. United States, 160 F.3d 714, 716–17 (Fed. Cir. 1998).

       The Intervenor Exchange Contractors’ contentions lack merit. Plaintiffs do not request a
declaratory judgment regarding the proper interpretation of the exchange contracts. They seek an



                                                 10
award of damages for breach of the water-supply contracts, to which the City and the District
Plaintiffs are parties. The fact that the Court may be required to interpret the exchange contracts
in the course of adjudicating Plaintiffs’ claims that the water-supply contracts have been
breached, does not change the fundamental character of this action. The Intervenor Exchange
Contractors’ motion to dismiss under RCFC 12(b)(1) is therefore denied.

               2.      The Motions of the Government and the District Intervenors

        As noted, the District Intervenors have also filed a motion to dismiss under RCFC
12(b)(1). They contend that the breach of contract claims brought by the Individual Plaintiffs
must be dismissed because the Individual Plaintiffs are not parties to any contract with the
government and are not third-party beneficiaries of any such agreement. The government makes
the same argument in seeking to dismiss the claims of the Individual Plaintiffs pursuant to RCFC
12(b)(6) for failure to state a claim. See Def.’s Mot. at 32–35. The Court agrees that the
Individual Plaintiffs lack standing to pursue breach of contract claims and therefore dismisses
those claims for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1).

        “A plaintiff must be in privity with the United States to have standing to sue the
sovereign on a contract claim.” Sullivan v. United States, 625 F.3d 1378, 1379–80 (Fed. Cir.
2010) (citing Anderson v. United States, 344 F.3d 1343, 1351 (Fed. Cir. 2003)). This
requirement notwithstanding, the Federal Circuit has recognized “limited exceptions to that
general rule when a party standing outside of privity ‘stands in the shoes of a party within
privity.’” Id. at 1380 (quoting First Hartford Corp. Pension Plan & Trust v. United States, 194
F.3d 1279, 1289 (Fed. Cir. 1999)). “A nonparty becomes legally entitled to a benefit promised in
a contract . . . only if the contracting parties so intend.” G4S Tech. LLC v. United States, 779
F.3d 1337, 1340 (Fed. Cir. 2015) (quoting Astra USA, Inc. v. Santa Clara Cty., 563 U.S. 110,
117 (2011). Such intent may be either express or implied. Id. (citing Glass v. United States, 258
F.3d 1349, 1354 (Fed. Cir. 2001)). In order to confer third-party beneficiary status, the benefit to
the third party must be “direct.” Id.; see also Pac. Gas & Elec. Co. v. United States, 838 F.3d
1341, 1361 (Fed. Cir. 2016) (quoting Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1259
(Fed. Cir. 2005)) (“To demonstrate third-party beneficiary status [] a party must prove that ‘the
contract not only reflects the express or implied intention to benefit the party, but that it reflects
an intention to benefit the party directly.’”).

        It is undisputed that the Individual Plaintiffs are not parties to any agreement with
Reclamation. While the Individual Plaintiffs certainly benefit from the water-supply contracts
between Reclamation and the District Plaintiffs, “[t]hird-party beneficiary status is not
established ‘merely because [a] contract would benefit [a party].’” Pac. Gas & Elec. Co. v.
United States, 838 F.3d at 1361 (quoting Fed. Deposit Ins. Corp. v. United States, 342 F.3d
1313, 1319 (Fed. Cir. 2003)); see also Klamath Water Users Protective Ass’n v. Patterson, 204
F.3d 1206, 1211 (9th Cir. 1999), opinion amended on denial of reh’g, 203 F.3d 1175 (9th Cir.
2000) (citing Restatement (Second) of Contracts § 313 (Am. Law Inst. 1981)) (“Parties that
benefit from a government contract are generally assumed to be incidental beneficiaries, and may
not enforce the contract absent a clear intent to the contrary.”); Restatement (Second) of
Contracts § 313 cmt. a (“Government contracts often benefit the public, but individual members
of the public are treated as incidental beneficiaries unless a different intention is manifested.”).



                                                  11
         Plaintiffs identify no language in the water-supply contracts that evinces—either
expressly or implicitly—an intent to confer third-party beneficiary status on the Individual
Plaintiffs, much less a clear one. Here, as in Klamath Water Users, “[a]lthough the Contract
operates to the Irrigators’ benefit by impounding irrigation water, and was undoubtedly entered
into with the Irrigators in mind, to allow them intended third-party beneficiary status would open
the door to all users . . . achieving similar status, a result not intended by the Contract.” 204 F.3d
at 1212; see also Smith v. Cent. Ariz. Water Conserv. Dist., 418 F.3d 1028, 1034 (9th Cir. 2005)
(finding that landowners were not third-party beneficiaries to a reclamation contract); Orff v.
United States, 358 F.3d 1137, 1144 (9th Cir. 2004), aff’d on other grounds, 545 U.S. 596 (2005)
(same).

         Further, as the court of appeals has observed, “[f]or determination of contractual and
beneficial intent when . . . the contract implements a statutory enactment, it is appropriate to
inquire into the governing statute and its purpose.” Roedler v. Dep’t of Energy, 255 F.3d 1347,
1352 (Fed Cir. 2001). Here, “the governing statute restricts Reclamation’s contracting authority
to extend only to irrigation districts and other such entities organized under state law, not
individual water users.” Stockton E. Water Dist. v. United States, 75 Fed. Cl. 321, 350, modified
in part, 76 Fed. Cl. 470 (2007) (citing 43 U.S.C. § 423e and also observing that “th[e] governing
statutes further support defendant’s argument that the [cities that secure water from the water
districts] should not be granted third-party beneficiary status, as the intent of Congress would
appear to limit the power of Reclamation to enter into contracts with such entities”).

       Further, in this case, as in Pacific Gas and Electric Co., “there is no identifiable benefit
flowing from [Reclamation] to the particular [plaintiffs].” 838 F.3d at 1362. The contract
between Reclamation and the Districts was not “intended to benefit them specifically,
independent of all other market participants.” Id.

         The Individual Plaintiffs’ reliance on H.F. Allen Orchards v. United States, 749 F.2d
1571 (Fed. Cir. 1984) for a contrary proposition is unavailing. In that case, the appellants were
members of the Yakima Project Irrigation District. Id. at 1573. They alleged that Reclamation
breached an obligation to accurately forecast the amount of water it intended to supply to
irrigation districts, which they claimed was imposed by contracts between Reclamation and the
districts that were incorporated into a consent decree. The court of appeals affirmed the Claims
Court’s determination that Reclamation did not undertake such an obligation, but disagreed with
its conclusion that the appellants could not sue as third-party beneficiaries to the district-Bureau
contracts. Id. at 1572–73. It found the landowners entitled to assert third-party beneficiary status
because, among other reasons, it was undisputed that they had a property right to the water under
Fox v. Ickes, 137 F.2d 30 (D.C. Cir. 1943), so that “the Bureau was obligated to distribute the
available water according to priorities established under State of Washington law.” Id. at 1575.

        The court of appeals’ observations regarding the appellants’ third-party beneficiary status
was arguably dicta. But in any event, the would-be third-party beneficiaries in H.F. Allen
Orchards had property interests in the water itself. Thus, as the court of appeals observed in
Pacific Gas and Electric Co., in H.F. Allen Orchards “a specific identifiable benefit flowed from
the government to each farmer under the consent decree.” Pacific Gas & Electric Co., 838 F.3d
at 1362. For the reasons set forth below, the Individual Plaintiffs here do not have property



                                                 12
interests in the water that is the subject of the contracts between Reclamation and the District
Plaintiffs or Reclamation and the City. H.F. Allen Orchards is therefore inapposite.

        In short, third-party beneficiary status imparts an “exceptional privilege,” which is why
the court of appeals has “cautioned that the privilege of third-party beneficiary status ‘should not
be granted liberally.’” G4S Tech. LLC, 779 F.3d at 1340 (quoting Flexfab, L.L.C., 424 F.3d at
1259). The Court agrees with the government and District Intervenors that there is nothing in the
water-supply contracts that vests the Individual Plaintiffs with the right to assert that exceptional
privilege here. Their breach of contract claims must accordingly be dismissed based on lack of
standing.

        B.      Motion to Dismiss for Failure to State a Claim

       The government and the Exchange Contractor Intervenors have each filed motions to
dismiss the remaining breach of contract claims (brought by the City and the District Plaintiffs)
under RCFC 12(b)(6). For the reasons that follow, the Court concludes that those motions lack
merit.

                1.      Standards for Motion to Dismiss Under RCFC 12(b)(6)

        A complaint may be dismissed under RCFC 12(b)(6) “when the facts asserted by the
claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257
(Fed. Cir. 2002). When considering a motion to dismiss for failure to state a claim upon which
relief may be granted, the Court “must accept as true all the factual allegations in the complaint,
and must indulge all reasonable inferences in favor of the non-movant.” Sommers Oil Co. v.
United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001) (citations omitted). The Court, however, is
not required to “accept inferences drawn by plaintiffs if such inferences are unsupported by the
facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of
factual allegations.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)
(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

        “To avoid dismissal” under RCFC 12(b)(6) “a party need only plead ‘facts to state a
claim to relief that is plausible on its face,’ with facts sufficient to nudge ‘claims across the line
from conceivable to plausible.’” TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1380 (Fed.
Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is
plausible on its face when ‘the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

                2.      Contract Claims of the City and the District Plaintiffs

        As noted, Plaintiffs allege that in 2014 the government breached the water-supply
contracts by not making available to them the quantities of water specified in Article 3(a) of
those contracts. They assert that—notwithstanding the drought—the federal government had a
substantial quantity of San Joaquin River water available, stored, and otherwise existing in the
Friant Division. 2d Am. Compl. ¶ 46. But instead of fulfilling its obligations to make that water
available to Plaintiffs, they allege, Reclamation released and delivered the water to the Exchange
Contractors. Id.


                                                  13
          The government contends that the complaint nonetheless fails to state a claim for breach
of contract because, in its view, Plaintiffs’ allegations do not take sufficient account of Article
13(b) of the water delivery contracts, which the government contends “immunize[s] [it] from
liability for conditions of shortage caused by efforts to meet legal obligations.” Def.’s Mot. to
Dismiss the 2d Am. Compl. (“Def.’s Mot.”) at 28, ECF No. 136. In addition, the government
contends that Plaintiffs have failed to put forth facts sufficient to support their breach claim. Id.
at 29–30. The Intervenor Exchange Contractors further argue that Plaintiffs’ complaint fails to
state a claim because it does not allege that it was arbitrary and capricious for the agency to
determine that its obligations under the exchange contracts precluded it from meeting its
obligations under the water-supply contracts, as allegedly required to establish a breach of the
latter. The Court finds these arguments unpersuasive.

        Article 13 of the water-supply contracts is entitled “Constraints on the Availability of
Water.” Subsection (b) provides that “[i]f there is a Condition of Shortage because of . . . actions
taken by the Contracting Officer to meet legal obligations . . . then, except as provided in
subdivision (a) of Article 19 of this Contract, no liability shall accrue against the United
States . . . for any damage, direct or indirect, arising therefrom.” 2d Am. Compl. Ex. 5, at 125,
ECF No. 128-6. Article 19(a) provides in turn that “[w]here the terms of this Contract provide
for actions to be based upon the opinion or determination of either party to this Contract, said
terms shall not be construed as permitting such action to be predicated upon arbitrary, capricious,
or unreasonable opinions or determinations.” Id. at 131–32.

        For two independent reasons, the Court is not persuaded by the contentions of the
government and the Exchange Contractor Intervenors that Plaintiffs have failed to state a claim
for breach of contract because their complaint does not take sufficient account of the “immunity”
provided to Reclamation under Article 13(b). For one thing, the court of appeals has
characterized similar “immunity provisions” as establishing affirmative defenses for which the
government bears the burden of proof. See Stockton E. Water Dist., 583 F.3d at 1360 (finding
that the provision in a water-supply contract that permits the government to escape liability
where the water shortage caused by drought or other reasons beyond the control of the
contracting officer supplies an affirmative defense that must be proven by the government).
Plaintiffs are not required to negate affirmative defenses in their complaints. ABB Turbo Sys.
AG v. Turbousa, Inc., 774 F.3d 979, 985 (Fed. Cir. 2014) (citing La Grasta v. First Union Secs.,
Inc., 358 F.3d 840, 845–46 (11th Cir. 2004)).

        Further, and in any event, the complaint does in fact take account of the provisions the
government and the Intervenor Exchange Contractors cite, and contains sufficient factual
allegations to survive a 12(b)(6) motion to dismiss. Thus, read together, Articles 13(b) and 19(a)
shield the government from liability for failing to meet its obligations under Article 3 in cases
where the contracting officer has reasonably determined that the water must instead be provided
to the Exchange Contractors to meet Reclamation’s obligations to them. While Plaintiffs do not
use the words “arbitrary,” “capricious,” or “unreasonable,” they do allege that “the San Joaquin
River water that Reclamation released and delivered to the Exchange Contractors in 2014 was
made at a time, in a manner, and in an amount substantially greater than what the Exchange




                                                 14
Contractors were entitled to under [Article 4 of] the Exchange contract.” 2d Am. Compl. ¶ 48. 9
They further allege that the United States “fail[ed] and refus[ed] to make Friant Division water
available to Plaintiffs, over and above the flows to which the Exchange Contractors were entitled
under the terms of the Exchange Contract.” Id. ¶ 49.

          For purposes of ruling on a motion to dismiss under RCFC 12(b)(6), these allegations are
sufficient to address the immunity provisions, including the “arbitrary and capricious”
requirement. They also state claims for a breach of Article 3(n) of the water-supply contract,
which provides that “[t]he United States agrees that it will not deliver to the Exchange
Contractors thereunder the water of the San Joaquin River unless and until required by the terms
of said contract.” 2d Am. Compl. Ex. 5, at 24; see also id. at 48 (providing in pertinent part that
Reclamation will “make all reasonable efforts to optimize delivery of the Contract Total subject
to . . . [inter alia] the obligations of the United States under existing contracts, or renewals
thereof, providing for water deliveries from the Project”).

        In short, Plaintiffs have set forth sufficient facts to defeat the government’s motion to
dismiss. While the allegations contain less specificity than the government would like, much of
the detail the government would require Plaintiffs to supply is in the exclusive possession of the
government and the Exchange Contractors. Therefore, the motions of the government and the
Exchange Contractor Intervenors to dismiss the City and the District Plaintiffs’ breach of
contract claims under RCFC 12(b)(6) must be denied.

II.    Takings Claims

        The City, the District Plaintiffs, and the Individual Plaintiffs allege that they each “hold[]
a property right in the beneficial use of the water and water rights of the San Joaquin River
which the United States acquired to benefit the landowners and water users within the Friant
Division of the Central Valley Project.” 2d Am. Compl. ¶ 31. When Reclamation decided to use
the water of the Friant Division of the Central Valley Project to provide “substitute water” to the
Exchange Contractors, Plaintiffs contend, it appropriated Plaintiffs’ water rights thereby
effecting a Fifth Amendment taking of their property for which they are owed just compensation.
Id. ¶¶ 32, 34.

        The government and the Intervenor Exchange Contractors have moved to dismiss all of
Plaintiffs’ takings claims for lack of standing under RCFC 12(b)(1). They contend that none of
the Plaintiffs possess extra-contractual water rights under state law based merely on their
application of CVP water to beneficial purposes. The District Intervenors point to certain
provisions of the California Water Code as an additional ground to dismiss the takings claims of
the Individual Plaintiffs.

9
  Article 4 of the exchange contracts applies “[w]henever the United States is temporarily unable
for any reason or any cause to deliver to the [Exchange Contractors] substitute water from the
Delta-Mendota Canal.” 2d Am. Compl. Ex. 3, at 8. It specifies the quantities and rates of San
Joaquin River water that Reclamation is required to supply to the Exchange Contractors.




                                                 15
        For the reasons set forth below, the Court concludes that—as a matter of law—none of
the Plaintiffs possesses a property interest in the water supplied to them by or through
Reclamation. Their takings claims must therefore be dismissed for lack of standing.

        The Fifth Amendment to the United States Constitution provides that “private property”
shall not be “taken for public use, without just compensation.” U.S. Const. amend. V. To
establish entitlement to compensation under the Takings Clause, a plaintiff must show: 1) that he
has “a property interest for purposes of the Fifth Amendment,” Members of the Peanut Quota
Holders Ass’n v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005) (citing Conti v. United
States, 291 F.3d 1334, 1339 (Fed. Cir. 2002)), and 2) that the government’s actions “amounted to
a compensable taking of that property interest.” Am. Pelagic Fishing Co. v. United States, 379
F.3d 1363, 1372 (Fed. Cir. 2004).

        The Federal Circuit has recognized that the government’s physical appropriation of water
to which a plaintiff has valid rights under state law may constitute a physical taking under the
Fifth Amendment. See, e.g., Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1296
(Fed. Cir. 2008) (determining that a physical takings analysis was appropriate where the
government “directly appropriate[s] . . . water for its own use—for the preservation of an
endangered species”); Washoe Cty., Nev. v. United States, 319 F.3d 1320, 1326 (Fed. Cir. 2003)
(“In the context of water rights, courts have recognized a physical taking where the government
has physically diverted water for its own consumptive use or decreased the amount of water
accessible by the owner of the water rights.”). In such cases, state law “define[s] the dimensions
of the requisite property rights for purposes of establishing a cognizable taking.” Klamath Irr.
Dist. v. United States, 635 F.3d 505, 511 (Fed. Cir. 2011).

        California law recognizes both riparian and appropriative water rights. Riparian rights
“are those that a person whose land is bounded or traversed by a natural stream has to the use of
the stream or water.” Westlands Water Dist. I, 153 F. Supp. 2d at 1142 n.10 (citing 62 Cal. Jur.
3d., Water § 65 at 101 (1981 & 2000 Supp.)). Plaintiffs do not contend that they possess riparian
rights to the water provided to them by Reclamation.

        An appropriative right “confers upon one who actually diverts and uses water the right to
do so provided that water is used for reasonable and beneficial uses and is surplus to that used by
riparians or earlier appropriators.” SWRCB, 227 Cal. Rptr. at 168. As of 1914, the only way to
acquire appropriative rights to water in California has been by invoking the administrative
scheme established under California law. People v. Shirokow, 605 P.2d 859, 864 (Cal. 1980);
SWRCB, 227 Cal. Rptr. at 168; see also Cal. Water Code §§ 1201, et. seq. Under that scheme,
“an application for appropriative rights must now be made to the [SWRCB] for a permit
authorizing construction of necessary water works and the taking and use of a specified quantity
of water.” SWRCB, 227 Cal. Rptr. at 168–69. If an appropriative water right is recognized, the
permit holder may take and use the water subject to the terms of the permit. Id.

         Plaintiffs, of course, have not sought or received permits to use the water to which they
claim a right in their complaint. To the contrary, Reclamation is the owner of permits that allow
it to draw upon the waters of the San Joaquin, subject to the vested priority rights of the
Exchange Contractors. Plaintiffs argue, however, that Reclamation has only “nominal” title to
the water, and that the water rights actually belong to the City and the District Plaintiffs, as well


                                                  16
as their customers, the Individual Plaintiffs, by virtue of their application of the project water to
beneficial use. Pls.’ Consolidated Resp. to Mot. to Dismiss (“Pls.’ Resp.”) at 44, ECF No. 141.

        Plaintiffs find support for this theory in language contained in SWRCB Decision No.
D-935, which granted Reclamation its permits to draw water from the San Joaquin River for
CVP purposes. In fact, they contend that, under that decision, “[t]he City, the Districts, and the
individual Plaintiffs within their District boundaries hold state-granted water rights in the
beneficial use of Friant Division water.” Id. at 7. They rely upon language in the decision stating
that “the United States holds all water rights acquired for project purposes in trust for project
beneficiaries who by use of the water on the land will become the true owners of the perpetual
rights to continue such use, subject to noted exceptions.” Id. at 8 (citing Cal. SWRCB Decision
No. D-935 at 99). Further, Plaintiffs cite the board’s statement that “[t]he right to the beneficial
use of water for irrigation purposes, except where water is distributed to the general public by a
private agency in charge of a public use, shall be appurtenant to the land on which said water
shall be applied, subject to continued beneficial use.” Id. at 50 (citing Cal. SWRCB Permit
11886 at 14–15 (June 2, 1959)).

         While the Court agrees that this language is supportive of Plaintiffs’ arguments, their
reliance upon it is misplaced. Fourteen years ago, in SWRCB Decision D-1641 (March 15,
2000), aff’d, State Water Res. Control Bd. Cases, 39 Cal. Rptr. 3d 189 (Cal. Ct. App. 2006), the
SWRCB rejected the theory that the United States is merely a trustee of the water rights it
secured for project purposes, while the plaintiff in that proceeding (the Westlands Water District)
as well as other consumers of the water were the true owners of those rights. It confirmed that
“[t]itle to the water rights under the permits is held by [Reclamation].” Cal. SWRCB Decision
No. D-1641 at 127 (Mar. 15, 2000),
https://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/decisions/d1600_d
1649/wrd1641_1999dec29.pdf). Further, it explained that “even if water use is appurtenant to the
enjoyment of a particular property, that does not mean that the owner of the property is the water
right holder.” Id. at 128. “[T]he permit language,” the SWRCB observed, “does not dictate the
quantity of water to be delivered to any end user.” Id. “In effect,” the Board found, “making the
water right appurtenant to the land insofar as it is used for irrigation is a designation of a place of
use of the water.” Id. 10

        Further, as the SWRCB observed in No. D-1641, Plaintiffs’ claimed ownership of water
rights from use of irrigation water is not supported by federal law. Id. at 129 (citing Israel v.
Morton, 549 F.2d 128, 132 (9th Cir. 1977)). To the contrary, Plaintiffs’ theory—that the
beneficial use of CVP project water by water districts and irrigators creates a property interest
that exists independently of their contracts—has been repeatedly rejected by state and federal


10
   Plaintiffs contend that in State Water Resources Control Board Cases, the California court of
appeals reversed this aspect of D-1641. Pls.’ Resp. at 51–52 (citing 39 Cal. Rptr. 3d 189, 293
(Cal. Ct. App. 2006)). But the passage of the court’s decision that they cite in support of this
contention does not appear to address in any way the Board’s rejection of the argument that
irrigation districts, and not Reclamation, are the owners of water rights that arise out of their
beneficial use of project water.



                                                  17
courts. The courts have also rejected the argument that Reclamation lacks any substantial interest
in CVP water because it does not itself apply that water to beneficial use.

         Thus, the courts have explained that project water is of a different legal character from
water that users draw directly from streams or rivers such as the San Joaquin. It is different
because project water has been diverted from the River and then stored, rediverted, and delivered
through federal Reclamation facilities. As the Ninth Circuit observed in Israel v. Morton, 549
F.2d at 132, “[p]roject water . . . would not exist but for the fact that it has been developed by the
United States.” For that reason, “[i]t is not there for the taking (by the landowner subject to state
law), but for the giving by the United States.” Id. Further, “[t]he terms upon which it can be put
to use, and the manner in which rights to continued use can be acquired are for the United States
to fix.” Id. at 132–33; see also Del Puerto Water Dist. v. U.S. Bureau of Reclamation, 271 F.
Supp. 2d 1224, 1250 (E.D. Cal. 2003) (same); San Luis Unit Food Producers v. United States,
772 F. Supp. 2d 1210, 1244 (E.D. Cal. 2011), aff’d, 709 F.3d 798 (9th Cir. 2013) (“[C]ontracts
for federal water service from Irrigation Districts do not create continuing ‘water rights’ that are
enforceable, except in strict compliance with identified contracts.”); Cty. of San Joaquin v. State
Water Res. Control Bd., 63 Cal. Rptr. 2d 277, 285 n.12 (Cal. Ct. App. 1997) (characterizing as
“highly misleading” the appellants’ arguments that Reclamation “‘holds only legal title to the
water’ and ‘has no substantial interest in the water’” ruling that it has “appropriative water rights
in the Central Valley Project,” that it “owns the CVP facilities, has operational control and
responsibilities relating to flood control, water supply, power generation, and fish and wildlife
mitigation,” and that it “has substantial property rights in its water rights permits, whereby the
Bureau diverts, transports, and stores water”); Ivanhoe Irr. Dist. v. All Parties and Persons, 350
P.2d 69, 75 (Cal. 1960) (recognizing that project water “belongs to or by appropriate action may
be secured by the United States,” and that “[i]n a very real sense it is or will become the property
of the United States”); Westlands Water Dist. I, 153 F. Supp. 2d at 1149 (observing that “[t]he
United States holds all water rights to CVP water” and that “[t]o access CVP water, water users
such as [the plaintiff irrigation districts] must enter into water service contracts with the United
States”).

        The cases upon which Plaintiffs rely to support their arguments are inapposite. A number
of them involve takings claims in the context of a plaintiff’s assertion of riparian rights. In
Dugan v. Rank, 372 U.S. 609 (1963), for example, the taking was of plaintiff’s right “to the
continued flow in the San Joaquin [River] and to its use as it flows along the landowner’s
property.” Id. at 625. In Gerlach Live Stock Co., 339 U.S. 725 (1950), the plaintiff also held
riparian water rights that pre-dated the construction of the Friant Dam.

        In other cases Plaintiffs cite, the landowners had appropriative rights secured by permits.
In Ickes v. Fox, the landowners were required under their contracts with Reclamation to initiate
the appropriation of water rights under Washington state law prior to the construction of the
Yakima Project. 300 U.S. 82, 89–90 (1937). In Casitas Mun. Water District v. United States, 708
F.3d 1340, 1343 (Fed. Cir. 2013), the contract with the United States required the water district
to secure appropriative rights by obtaining permits. Similarly, in H.F. Allen Orchards v. United
States, it was undisputed that the plaintiff irrigators were the holders of the water rights and the
focus of the court of appeals’ decision was on their breach of contract claim. In none of these
cases did the courts suggest that a plaintiff irrigation district or landowner could assert a property



                                                 18
right that arose exclusively out of their use of project water supplied through a contract with the
federal government.

         Plaintiffs’ reliance on Nebraska v. Wyoming, 325 U.S. 589 (1945), and Nevada v. United
States, 463 U.S. 110 (1983), is also unavailing. As the court explained in San Luis, 772 F. Supp.
2d at 1244, in both of those cases (as in Ickes) “the contracts between the United States and the
landowners directly provided that the landowners either would take ownership of the water right
itself, or at the very least would possess a contractual right to a fixed volume of water.” Neither
is true in this case. The Individual Plaintiffs are not parties to the contracts. And the contracts do
not provide for the City or the District Plaintiffs to take any ownership of water rights; nor do
they entitle them to a fixed volume of water. To the contrary, the contracts explicitly recognize
that the contractual rights of the City and the District Plaintiffs are subordinate to the Exchange
Contractors’ vested water rights.

        In short, none of these cases stands for the proposition that mere beneficial use of project
water confers rights independent of those provided under contracts with Reclamation. Plaintiffs
cannot assert property rights greater than those secured through their contracts, which give a
priority to the Exchange Contractors. Indeed, as the district court observed in Westlands Water
District I, “[t]he argument that a last-in-time taker of a benefit,” like Plaintiffs, “can impair the
rights of a first-in-time contributor who made the benefit possible,” i.e., the Exchange
Contractors, “defies logic and the fifty-year CVP history.” 153 F. Supp. 2d at 1177.

         The Court has carefully considered Plaintiffs’ remaining arguments in support of their
claimed water rights and finds them without merit. While the Court is not bound by the decisions
of the Ninth Circuit or the district courts in California, it finds those decisions, but not Plaintiffs’
efforts to distinguish them, persuasive. Therefore, it concludes that Plaintiffs have failed to
establish their standing to pursue takings claims based on Reclamation’s actions. 11

                                           CONCLUSION

        On the basis of the foregoing, the motions to dismiss of the government and the
intervenors on its side are GRANTED-IN-PART and DENIED-IN-PART. The breach of
contract claims of the Individual Plaintiffs (Loren Booth LLC, Matthew J. Fisher, Julia K.
Fisher, Hronis Inc., Clifford R. Loeffler, Maureen Loeffler, Douglas Phillips, and Caralee
Phillips) are DISMISSED without prejudice for lack of standing. The takings claims of all
Plaintiffs are similarly DISMISSED without prejudice pursuant to RCFC 12(b)(1) for lack of
standing.

       The parties shall file a joint status report within thirty days, proposing a schedule for
proceedings going forward, including discovery.

11
  Given the Court’s determination that none of the Plaintiffs have established that they possess
water rights under California law, the Court does not reach the issue of whether collateral
estoppel applies to the takings claims brought by some of the District Plaintiffs. Nor does it
address the arguments made by the District Intervenors concerning whether the takings claims of
the Individual Plaintiffs are precluded by certain provisions of the California Water Code.



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IT IS SO ORDERED.



                         s/ Elaine D. Kaplan
                         ELAINE D. KAPLAN
                         Judge




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