we have one case on for argument today number two thousand and seven five one one five klamath irrigation district against the united states thank you your honor and good morning to our members of the court it's a pleasure to be back here again even on the same case when last we met there were a number of outstanding issues of oregon the court subsequent to the oral argument decided to certify several of those questions to the supreme court of oregon we now have the responses of the supreme court of oregon to those certified questions and i think what they make clear is that the trial court aired but it dismissed the claims for the taking of the beneficial interest in klamath project water rights to let me just as i  contract claims that your clients are certain of those alternative claims roleplayed it's no they are not rather the contract claims actually exist only on behalf of the the water districts the irrigation districts the taking claim exists only on behalf of the individual water users as does the klamath compact life so they're actually separate claims separate plaint the ok fair enough so the district's so in other words the only way the individual water users can recover is via a takings or a complex claim correctly and the districts are covered solely by the contract claims that's correct ok that's that self so what the oregon supreme court i think has clarified now for us is that contrary to the position taken by the government in adopted by the trial court the nineteen zero five oregon statute did not preclude the acquisition a beneficial water right in the irrigators and that in fact under oregon law the principles the three factors that relate to the acquisition of such a beneficial water ride which is a property right of course under oregon law all indicate that in fact this property right does exist we think that on the basis of that decision it is now appropriate for this court to reverse the truck word on the two causes of action that we just discussed the taking and the climate compact claims to determine that it is i want to clarify z and i've get to where you're going there  but the none of the individual or any of the individual landowners in this case i take it they're not covered by the district plaintiffs in this case contracts that's correct your honor  the contracts that the districts have relate to first of all the repayment of the original cost of constructing the facilities and second to the maintenance and operation of the actual physical works and the landowners don't have any contracts with the district that's correct your honor i'm sorry we deal with united states with united states yes that's right the landowners do not have contracts with the united states and the land and the individual name landowners or an beneficiaries of the district contracts well the trial court held and we did deal with this issue they are third party beneficiaries of that contract which of course only means that they have standing to enforce a contract that they were not a party to but you said they can only would cover by the takings of the compact claims well i think that's right and you know maybe maybe you've just pointed out that i had stopped a little bit short there your honor the individuals would have the right to pursue a art or two to prosecute a breach of contract claim on behalf of the districts that however is not their all three portions of if i understand your position what was necessary to establish the property interest that yesterday left open as i read the opinion the question of whether there were any contractual givebacks so to speak and what you're i know your position is there's nothing in this record that would support a conclusion that there are such but they did as i understand it leave that question open where they did your honor and i think what the oregon supreme court said is there is mention of contracts at some length in the trial court's opinion right and so out of an abundance of caution rather than trying to make some some ruling based on that discussion they said well you know maybe there's some contract we don't know about so we won't rule on that issue i think had they that there are no such contracts and therefore that's that is a non issue in this case well we'll see whether you're imposing counsel agrees with that proposition well yeah well i suppose  we will though i don't think there is any disagreement with the proposition that the individuals in this case have no contracts where i think the oregon supreme court perhaps stopped short in its analysis was the failure to distinguish between two districts and individuals and so and that in some measure was perhaps because the question asked dealt with both the districts and the individuals but they're really two entirely i think the it is the latter your honor and i think that's what the oregon supreme court told us that there are three factors in a devilish one of a beneficial water right under oregon law the first is did the water users put the water to beneficial use in irrigating their lands well of course we know the answer that is yes and they've been doing that for a hundred years the second question is does the relationship between the united states and the water users indicate an intention to establish this benefit individuals again the oregon supreme court answered yes and they got had passed that congress had passed and that under the nineteen zero two reclamation act the intention of congress was to create this relationship in which the united states has or i think what the oregon supreme court said is this is similar to a trust and what they were trying to to deal with there is the division between legal title and beneficial ownership which is similar to the way a trust is established the court talked about a long history of situations in which one individual makes the appropriation for the benefit of the water users one person does the appropriation another person puts the water to beneficial use on the land but if that were not allowed under oregon law then in fact  appropriator would hold the water but wouldn't have any use for it here the water was appropriated for irrigation and related purposes on klamath project land the united states doesn't now own or irrigate any climate project land so it would hold a water right that it had no use for and the irrigators would have the land but no water to irrigate this  i'm sorry it is this the same relationship between the federal government and the water users that was at issue in the nevada case absolutely your honor and that's exactly what the oregon supreme court said contrary to what the trial court held and what the government has always been tended in this case the organ supreme court made it clear that the law in nevada is the same as it is in oregon with respect to this beneficial use with respect to this relationship so that the the relationship whether you call it a clause i trust or something else was a relationship that that this court was asking whether beneficially use in the face of say a statute that that said were that intended that the irrigators not get a beneficial water ride or in the face of a contract that might have said irrigators do not get any water right with a beneficial use would have by itself nevertheless and they were dealing with really two paradigms one situation in which you had a mutual water company a nonprofit entity an irrigation district where clearly the district was not intended to own the water right and that the beneficial interest was intended versus in the end they had this one case the walla walla case in which you have a for profit company that owns the water right  sells it in blocks in quantities to different people sort of like you and i pay a water bill every month and what they said is in that situation in the walla walla situation where the arrangement clearly did not contemplate core profit or not for profit it well up if there were a contract and that's what the oregon supreme court set they said everything that's in the record that we know indicates that there is a beneficial  based upon that assumption with the drug court have to take a look at each and every contract that point to make that determination when there are no contracts to look at europe that's the point that that the only contracts that exist are b the district and the united states there are fourteen of those i believe and they deal with the interest rate loan repayment of the original facilities and on how the water will physically be deliberate through the canals and and and you know who's in charge of audit thing and when there will be inspections they do not deal with this issue so there would be a distribution right to the local irrigation districts do the delivery of the water actually physically operate and that's that is is the arrangement here the court recall that in two thousand and one the districts wanted to release the water into the irrigation ditches and of course federal marshals were called in and and fences security fences were built and so forth to keep to physically keep the irrigation government that there is waiver in this case of the argument of the beneficial property interest under state law argument made in the supplemental brief yet happy to trust that your honor the simple point is if you read our brief you will see that probably the first half of the argument is dedicated to attempting to demonstrate what the oregon supreme court ultimately decided oregon law is these not different from the law of all these other states but rather is the same as the law in nevada in nebraska in the state of washington and so forth on asli i think there was a statement made by the trial judge that appeared to confuse or state our statement based on california versus united states that of course federal law under the supremacy clause would apply if state law were inconsistent with federal law and because the reclamation act requires that the water right be pertinent to the land and that beneficial use would be the measure of the right if oregon law were as the trial court said utterly inconsistent with that is the government has said so that that these rights were not a pertinent to the land then oregon law would have to yield to the supremacy of the reclamation act fortunately the oregon supreme court has clarified force that oregon law is consistent with reclamation act that these rights are apartment to the land and that they are part of the property rights on by these plaintiffs are going to i just have one more question will would be indian water rights  there was no discussion or mention at that time that this water was somehow needed for indian uses nor was it put to the use of the tribes we don't contest the rights of the tribes what they are not part of this case that was not the basis but water the water sitting in the in the reservoir did not benefit the tribes the water sent downstream for salmon runs did not benefits benefit the tribes was not released as we understand it because of some perceived treaty obligation it was that the government has defended this entire case in the court will recall that  that whole sovereign act discussion on the basis that the biological opinion was a sovereign act and that's why they did what they did so we that we have never seen the indian wat rights issues as any part of this case was a just one or two housekeeping questions in a sense and then one of the i guess it relates to the what you touched on the breach of contract in its supplemental brief the government says the van brewer did companies takings claim is identical to the claim it is presented for determination in the in the   it may be i ask that question because this whole issue of what's in the education is i think a very convoluted one originally the first trial judge in this case judge siple issued a stay saying i will not consider this case is stayed pending the outcome of the education which of course is still ongoing and here we are nine years into the case  then she said but if you can assert a property right that is not in the adjudication of hearing it and that's when we began talking about these beneficial interests what's interesting is issue in the adjudication and we we've always had this sort of awkward situation where the united states keeps saying we own the entire water right but you're not you played us are not allowed to scuse me for of course jumping in but the only question is i mean as far as i can tell in the wake of the organ supreme court's decision the government has come back and said after they heard from the organ supreme court that the van  states has said in this court is also a bar that is the united states has said it has a sort of exactly the same claim before this court that it has asserted in the education that it under the one thousand zero five statute acquire which actually were pretty nineteen zero five water right that is certainly true and the question is what is the implication of that fact the trial court as i indicated said well would have probably said initially under under my stay then burma can assert that claim but have we in effect i guess i'm posing the question is that original november thirteenth order sort of  superseded by the fact that the second trial judge actually decided precisely the united states claim in the education ok let me ask you one other claim before i get to my file on the contract and i appreciate th panel's colleagues indulgence here the government says in that supplemental brief that you have not challenge the ruling of the court of federal claims in so far as it relates to claims based on and the claims of the klamath drainage district and the klamath hills district improvement company based on state water permits you recall seeing that and they yes yes what is your response to that once again  t the government is is incorrect the government is asserting that they the argument was not sufficiently developed the court may recall that in the february two thousand and eight argument we spent a good deal of time liability for breach of contract based on the sovereign acts defense the court of federal claims made to determination one it said that skinny that the bureau's response to the isa problem in vote dangerous species act problem which arose from the drought was a public in general act and two that the government was not required to demonstrate that compliance with the water delivery contracts was impossible that i know you dispute the possibility issue but what is your what is your position mr mozilla with respect to the court of federal claims determination that the government's response was a public the biological opinion is hard on this is part of the act itself however our position is that that does not complete the in ellis because it's not the  issuing entity of the wildlife agency but rather the bureau of reclamation which having been issued a biological opinion is free to either follow it or not follow it and thus in possibility is not demonstrated correctly characterize judge elaters opinion yes you know i want to so we can say that on that point publicly and general act or not that we can say he got it right or out of all we can decide that yes ok absolutely but thank you if i could follow up with one more question on the sovereign act doctrine and this deals with the possibility let's assume that you are correct how do you get to put this in perspective that we had a discussion the last time the two of you are here of the role of the impossibility defense in a setting in which congress has allocated to a particular agency the responsibility of making a determination which in other settings would be made directly by congress and would establish the basis for the possibility and if i recall ms barton's discussion of this she said well it's a bit unusual to have the same agency making policy determination that turns out to render its own conduct under contract impossible but there's nothing categorically inappropriate about that risk and therefore if there is a determination delegated by congress to an agency that the agencies can make a choice irrelevant and the reason i say that is that mr barton is speaking as though the same agency made that sherman nation as to jeopardy to the species and then also made the decision  agency so the wildlife agencies did what they were delegated responsibility to do and it was then up to reclamation to decide how to react nothing in the endangered species  reclamation when you say it was up to right up to reclamation to decide how to react it was reclamation statutory duty at that point to react correct and there was a where i'm going with this is it isn't this a case when you when you look at what reclamation is faced with and which reclamation was saying here is our duty is to decide what congress wants us to do about the fish under the endangered species act these are the the question of whether really really to release the water not and if they concluded that there delegated responsibility in light of and wildlife opinions of the as to what the effect is going to be if their responsibility is to cut off the water to the irrigators isn't that in itself the act that that reclamation is is performing that it that once the consultation is finished the act says nothing about what reclamation has to do so you really do remember that we went over some of this ground that we did last time but it wasn't entirely clear to me just where the lines were drawn between the two of you and i think what you're saying that and correct me if this is not a fair characterization of what you're saying is that that whatever might be the case if the responsibilities on reclamation were more categorical if you get this kind of opinion you must do x regardless of what the situation would be there this is not that that case because they had complete open book and they could they could move in different directions they had a choice and that's absolutely correct or not they could go out and get their own opinion on that basis would know have to follow the opinion section seven of there are a lot you know that's what i'm saying your honor there is nothing in the endangered species act that says what reclamation has to do with that appeal they have to consult the opinion has to be issued then reclamation is free to make its choice as to how to proceed but that's the point at which we got into the complexity with the the complexity of the taking to to consult where there is an existing obligation there is a ninth circuit decision name which escapes me at the moment in which the four service had entered into a contract to all our logging and then endangered species was found subsequently and the courts at will the the legal obligation already exists so the agency isn't taking any new action so it doesn't have to act i think frankly it doesn't have to consult under section seven i think frankly that principle of law would have applied here this this project had been in operation for nearly one hundred years and for reclamation to wake up one morning and say gee i think i have to consult in fact i believe was the position reclamation had taken counsel can correct me in the litigation and minutely in the litigation that led to an injunction requiring them to consult the time of three minutes means to bring the parties up to parity i think we have to as twenty four minutes to mr barton said time and expose her to having to work overtime as well or then in addition some of the things that were i had planned to address no more but they are there are argument that the court should affirm our alternative argument that the court should decision so first of all we think a firm and so is required because the theory of the plaintiffs as this court in the oregon court understood it correctly was that there is a uniform federal law  uniforms state law state law based on state water appropriation that the beneficial users of water have a property right in that in the in the water right and that that question correctly understood and certified and correctly understood by the oregon court in answered was answered no and that is important especially if you read the concurring opinion that explains the awkward situation of the oregon court was in because of the plaintiff's decision to try to proceed in the context of the adjudication and not to claim any rights of the jew cation they couldn't look at a lot of their traditional water law so instead they said we're not we can't look at what's required for an appropriation we can't look at beneficial use we're going to look at another body of law that has never been applied to project water rights against you know in terms of interests between the united states and water users trust law agency corporation law i mean this actually has left us rather floored about how we even deal with this law i mean it's not anything that's in nevada or icky and clearly we have lots of decisions that say there is not a trust relationship between the bureau and the reserves so we've got that how do you view the what the argonne supreme court said about the relationship between the united states and the irrigators versus the way that the nevada united states again the vote against united states the supreme court characterize the relationship what's the difference the difference is that the or the supreme court rested on nevada's law of know not normally now because what happened in that case was the united states brought to original rights came about because united states affirmatively brought a quite tight action in in federal court right to get the rights confirmed so the court  users get the water rights and so you you got this document that you went to get you got those rights but these people i didn't apply a trust relationship or agency or corporation it just rested on section eight of the reclamation act and and state water you know that sounds like it's very similar to the relationship with the oregon supreme court described in this case no and the bottom bottom line was that the the situation that the supreme court found the parties in and ultimately left the men in nevada is i don't see how it's very distinguishable from the situation that the army and supreme court saw the parties as being in in this case well it may  have come up with the same result but it's under an entirely different body of law and legal theory this is if this case had been if you had affirmed as you certainly should have done rather than certify to the oregon court well you have taken it to th to then take it to the supreme court they could not have gone to the supreme court and said we have a trust or agency or corporate relationship with the united states or the supreme court would not have let them make that argument but you if you do not affirm are allowing them after and oregon came back and said here is the organ wall and isn't it now appropriate for the case to proceed on that basis no i disagree your honor i think waiver in this court still apply its waiver doesn't apply in the oregon court they're not in a little getting position they can go on and talk about any theory they want but i will post them to tell us because so we could decide the case we ask them to tell us what is the law their approach but then they said here is the what would oregon law is i mean we asked them to tell us we asked them a question and obviously when we asked that question we had one getting help in deciding the case and they came back and said ok this benefits of putting beneficial use alone is not enough here's what you have to have so don't really isn't appropriate for us to now proceed on that basis i disagree or i don't see why certification gets rid of the waiver rule if you know they get another bite at the apple because the court certified the question it was answered no that was their theory of the case asked us our opinion and so we'll tell them all the while there is even though a bunch of it isn't anything that they that the plaintiffs argued until they got to the oregon court and saw the court and noid case and some other things and and tried to make this argument but let me say another reason it's not just i mean waiver is important is it is particularly warranted in this case because as i said this is a strange body of law and a novel theory that we're going to have to deal with and figure out how to apply in this circumstance that in the end may not matter before i think it has been since we met last i did doesn't like the long time your honor but i have to say one thing about what happens with water rights before an adjudication you know states typically will not even enforce water rights before an adjudication they you know that somebody is out there taking water that everybody knows they have a leader priority and the state will not do anything about it because they don't have an educated right we here we are being asked to pay for rights of the state a state wouldn't even i don't know if they have you know a thousand people or i have no idea how many users there are in the project but you know on the on the list i forget or with it's i'm not really involved in education so it's a district but clearly it's the warnings it's rights that are issue right to and that it lodged in those beneficial users but that was a law that the court could look at right if you read the concurrence it's very clear about that it's like well all the law that we would normally look at we couldn't look at here we had to look at other law which doesn't really even provide any precedent here and doesn't really pertain that one more point on affirmative because one more important thing that will be have to be dealt with in a hypothetical you know way if you send this back i always would have been but is the trouble right now it's true that we did not say that bureau did not say that it was serving the tribal right when it pretty spritzer of the water for the fish but that is the basis for that and they couldn't because the tribes right hasn't been quantified right the tribes have to which clearly have a senior right to water for the fish that were issue in the biological opinions they their rights we don't know what their rights are  education we don't have some intermediate decision by the oregon court you know that it's a federal right can't be determined we could have to end up paying and what are we going to do for a right that actually was a senior tribal right there in the future going forward we will never know that the united states will have to protect in its trust capacity for the tribe decided senior right even under state law they get their water first for the fish it's really and big while in the meantime we've sort of hypothesized a right for the land owners in the project as if they get out a higher right there even though they're the what the project right is is junior and it's just a whole bunch of complexities and for all those reasons we really think you should but if in the project i don't ever under a reclamation project without a contract the users had contracts there were these in this is why the organ court said we have to go back and look at the history in the development and not only of the cont use they put they got the water initially under of the form a contracts that the homesteaders got the form be contracts these are all in one thousand no six we know whatever that the that the  applications and formby applications and those were in a sense they they had they were quid pro quo you know you get why they had the same kinds of they had you know how much water you get and you know that you have to repay the project you have to pay operational maintenance fees and they had they had these shortage clauses in them you know all this all the stuff that is in the contracts today now those applications could have ripened into individual water rights certificates but in the meantime congress started saying we're go we're going to do the contracting through the deliver we're going to we're going to get big bureaus start to get the bureau out of the business of manning of being the deliverer and the handling of the contracts we're going to get an association or a district in between us and so those those rights were then subsumed in the district contracts in the meantime there actually were other individual contracts or some two hundred fifty contracts on the project so there are some were an act between these individual users samira to today do we our view they had contracts they got there were represent a contract it's not like we just gave them water and then someday did a contract with the an irrigation districts that the individual users had contracts then we created who then they would it's i who are they with the united states and that they're there in that's actually from the patent the it's the form yes i mean we the form a contract were for the people who are homesteading and is our view that the patent dee which said you get that way and you get a person water right what they were referring to was a water right in the form a contract but they are not the same piece of paper right but it's our our view is a effectively reference the form eight contract and say that you have a right to put water a pertinent to your let you know we have never argued that they don't have a perpetual right to put water to beneficial use their irritable land they give that up in these contracts do so because that was what the organ supreme court said or said that third question was whether in their contracts in which the beneficial relationship with the landowners and the question they couldn't decide is whether as i understand it the landowners had entered into contracts in which they had relinquished or given up these rights as your position that there are contracts where they've given up these rights and we have two answers to that one is that we think that analysis is overly simplistic because it ignores the fact that congress with wires water to be delivered only got a problem with that opinions well except thing it is because as it is ok assuming that we're all stuck with it are there contracts where the where the landowners love the organ now there are no landowners in the project who got a contract to put water to use who then somehow altered that contract in a way that said we don't know we now now we no longer have the right to use but that question were if you will since i do have time allow me to just step back yeah but but first since i really need to get your answer to that question is that what the supreme court of oregon was saying do you think in part three of its response when it said we should there's a lot of talk about countries we don't have in the country actually before us it's possible because i read their opinion they were saying it's possible that there may have been a surrender of rights otherwise possessed by the lentil is that your understanding what they said what do you think yes i know you're standing up what they say ok now that i think and and you further say that there are no such contract you know contracts that completely surrendered ok contracts ok so at that meeting that it now if i can step back so the issues in this case really what turns on whether the plaintiffs have a contract or a property right right at least in their minds is if they get out of the takings claim that they don't yet have a breach of contract claim right that's what that's what the trial court has decided they have those things and those things are they claim to have to be have a right that is completely free of the terms of the contracts that is independent of any terms in the contract not limited by those terms and they claim to you know not to to not have to use contract remedies now that question those questions are not answered by by the oregon supreme court's three part now says because in the end it just says well then they have some kind of equitable right but it doesn't say whether the equitable right is limited by the terms of the contract and whether where congress says you have to have a contract to get water congress has also given up its contract defenses you know it just doesn't in the concurrence i think it's very good i'm innocent saying you know we just and actually and the lead opinion the courts overall opinion also says we we are not answering the question of whether they have a taking pla contracts attached to some of those documents of certain types the form and form b the original very original users are not but they were subsumed right they did have contracts it's not like irrigation district contracts so they all arise under those contract they are roads under the original contracts right but they became subsumed and are now with it under the contracts with the irrigation districts i mean beneficial interest subject to a taking claim but it's not entirely clear to me whose rights the districts are claiming it to can claim oh yes i have while it's true that certain landowners don't have direct contracts with the bureau  people from home they obtained their interest had some kind of a contractual arrangement with the government that has been subsumed  were as it did to the bureau contracts right to the district contracts right exactly some sort of good without a dentist some are appended to the contracts and it depends on the you know there's been a whole evolution of different kinds of music there's no way i guess of the record for this court to decide exactly now let me on the remain when i was going into that sort of so as i said the three part if the court you know we were prepared if we go back we attempt to make our case and oregon law but i think what we have to do is look at the at the court's opinion all three parts of the court's opinion and question to a not just then here's a three part test because as i said it doesn't get you to the answers what what's the scope of that right we're not saying they gave it up we've never said they gave it up we've always said they have beneficial interest in the use of water and we've just said it's limited by the contracts and subject to contract and that's always been our position in this case and and and with all due respect to the oregon court i mean this wasn't pretty but they didn't do that without also looking at the reclamation act and congressional intent we're going to imply a relationship based on that if you apply a right based on the relationship between the users and them and the provider you've got to look at how that relationship was  it but basically yes in order to develop those lands in order to have those lands irrigated an agricultural ground on them it developed a relationship a contractual relationship in a quid pro quo where each party had certain rights and responsibilities but it didn't just say we're going to build the project and here we're giving you some are so basically if one follows to the three factor analysis your supreme court really does three that's where the color rubber hits the road right because i mean there's the i mean everyone these these were users have been putting the water right to beneficial use and there was this relationship between the government and the water users the question is what is the effect of any of these contractual arrangements is that really what's what's with your factor three well any right to use this water we're just glad to get it every day by day that's not what the contracts say the contracts say what's most important in the contracts of course is the shortage closes the contracts if united states is not liable for certain shortages varying on depending on what going to say is i think you have to look at the larger rationale behind the opinion and i really do encourage you to look at the concurrence which is that you know this is based on a very small body of law in oregon that had nothing to do with the relationship between the provider and the irrigator only had to do with sort of third party attacks on the right and we don't disagree with the results of those opinions here we're just saying they don't answer the questions about the relationship between us and the provider and what that whether their rights are limited by the terms of the contract but so if you go back to page one eleven sixty two in the piece third site of the court's opinion they say the court has with the very big picture try explaining their law they say the court has sought to determine rights from the structure of a particular relationship and of the agreements among the parties to the ration ship and then later on before they go to three protests they say the united states in the plaintiff's remained reach enter into agreements that clarified redefined or even altered that relationship we think those parts were not saying don't look at the organ supreme court people were just saying they tried to make a job easy by coming up with a three part test that they had never articulated before and never applied before and that doesn't answer the question here we think you have to look at this fundamental body of oregon law because only that way can you take into account whether you know the agreements clarify the contracts clarify redefine or alter the relationship and you have to look at the structure as a set of the been rationed ship which is as i said they never got water but for a contract that had print quote quo obligations and responsibilities on both sides and limitations and he said in any and in addition the government doesn't have to establish impossibilities performance and he said he wasn't then on the suit or opinion in the wind started in the winstar case now  let's assume that that he's correct for the moment that it's a public in general act ok and i'm sure you would agree with that but subsequent to when store and subsequent to georgia leg was opinion here hasn't this court made it pretty clear that we do follow the winstar for justice for me i believe so and that isn't country i actually don't remember what how judge alegria used that part of the opinion is it's not really something that the plaintiffs ever argued but they argued was the biological opinion was based on of private contractors and that's what this court has set and it's clear that it was impossible nobody said that if we complied with the biological opinion which we were under injunction in the ninth circuit to do that we could deliver the waters still you know that they have only attacked the decision of the bureau to comply with the biological opinion but we were enjoined from delivering any water until we got a sometimes we had thought that too but the ninth circuit you get what exactly you were about to say the second thing the injunction said and you had said the first was that we had to seek a biological opinion and then had to comply with it and comply with it exactly what the obligations right were that were imposed on the bureau well i'm not resting our case on the injunction oh i feel like saying i thought you were i'm just saying here we never argued that you know i  even have to consult we work we did have to consult under the under than the ninth circuit because because there's discretion and we have ongoing obligations or whatever clearly reclamation had to consult and it has to  consult to avoid jeopardy and has to take steps to avoid jeopardy under section seven so where is the question about where should you what would you do about a discretionary if you're going to put reclamation as a private contractor in the same position recommends as contractor in the same position as other private contractors other private contractors would have to we would not have got in the water because reclamation in its governmental capacity would have decided under the endangered species act it couldn't deliver the water didn't show that even if you complied with the c b p you know with the with the sovereign at that you couldn't deliver the water and if you look at that opinion they actually there's a state part of the case it's where we say we couldn't deliver water because the state actions and saying you know you didn't show that you still had water up to and so that case stuck to the east which is still pending on rehearing and but and and then address this question after proceed as decided at which should public character and then number two to send it back to give the government an opportunity to demonstrate under kara better procedures the other cases that contract performance was impossible no that actually they with all due respect the plaintiffs have never argued that contract performance was not i try to explain that in the brief what they said was not in part what they said it wasn't impossible because we could because the biological opinion was wrong or because we didn't have to comply with the biological opinion i'm saying they've never said if they were never saying you could have complied with the biological opinion and there was water left over to give to us that's right that's impossible that's what that's they've never said that that's just not an issue in this case that's the impassibility question mike did the bureau's compliance with the biological opinion make it impossible for it to liquid water yet and they've never said otherwise they've said the bureau shouldn't have complied with the biological opinion it didn't have to you could have done something else that's part of the  science report came back and said you didn't have to save all that water for the fish it was too much water well that's attacking then not only is it attacking you know something that can't be attacked in this court which is the literally of a sovereign act which they had tried to do in the ninth circuit failed but it's part of it's just part of the soviet right so they've never ever said you could and it was a critically dry year and we had to leave a lot of water in the lake for the fish and send a lot of lot of attention that because they haven't heard it and if you read my brief carefully i try to say they they say they're making an argument that that we can show a possibility but when they say we didn't show they said we didn't show that there was another way for the biological opinion that the biology they're basically saying the biological opinion was wrong they're not saying you could have never said you could have complied with the biological and and given us where we have never said that i wanted to say one thing on the van brimmer have a water right that could be recognized in the due to cation that's meaningless right in that nobody cares whether we have a property right in a taking claim it's whether they have a right right so it could be a defense of ours another right as ours we didn't bring a summary judgment motions that we it doesn't that burden that summary judgment willing doesn't really weigh that was brought at their own request because we could you know make defenses that had to do with rights sitaram yechury that's completely a state administrative determination which could be you know at the end of two thousand and twelve i think there's some hope that the tribal rights will be wrapped up in that the state is preparing everything else to be ready to go goes from the end then and then i think when there's a decision in that court then it's just the regular appeals counsel for the government the government did bring summary judgment and the government did argue that the plaintiffs lacked any property right that any rights that they might have had to derive from the contract specifically the district contract that's the case that they brought in the trial court and that's the case they argued here the injunction in question did not require compliance with the biological opinion it only required consultation once the consultation was completed the government moved for and received a dissolution of that injunction third the oregon supreme court did discuss oregon water law i'm utterly confused about coun contention that the oregon court did not look at oregon water law at least the copy of the opinion i have has a whole section on the common law of water in oregon starting with the appropriate  squarely and oregon water law decision it talks about notice it talks about appropriation and it talks about situations in which the appropriator is one person and the beneficial user is anot reducing what is your response did you get understand that's what she said yes your are and what's your response to that there are these documents called form a and form the contracts or to be more appropriate they are titled form a case and in fact the oregon supreme court also mentioned well we're not talking about these four main big contracts because the supreme court has noted that those form a and form b contracts what counsel was talking about tend to indicate that there is a beneficial interest so these were applications that were that were made by people who originally moved on to the property your honor and they covered the initial situation yes precisely so covered that interim period none of these plaintiffs except for mr rosen who's one of the individual plaintiffs and we actually have four may inform be in the record the court can take a look at  them none of these other individual plaintiffs had those forms and of course once mr robeson got the deed of the water right he had been there for the requisite period of time had applied to the water to his land the the application for the water right in effect i guess counsel used the word merged i have no problem with that but the the bottom line is the form a b have no language that could be construed as cutting against the beneficial interest in fact the supreme court held in the data versus united states that the form and form be tended to demonstrate that the water user did in fact have a beneficial water right so counsel and that's what i meant your honor when i said there were no existing contracts yes there were applications of back fifty to seventy five or one hundred years ago by some people the existing contractual relationship is between the united states and the districts and council kept saying well the reclamation act requires a contract with the delivery stand by what i told you or honor originally when there is zero so would you agree then that those contracts or those rights have been subsumed under the agreement with the water district what rights are you talking about  nothing to do with the delivery contract they they were applications that lead to form a is led to the issuance of a patent deed the think of it if you will so do you disagree right from the united states evidence by a patent five years later having applied the water faithfully the united states issued a patent the which said here is your permanent water rights for me was exactly the same thing for people who already owned title to the way so they wouldn't be getting the united states and what they were were to get was a certificate of water right both the same thing at that point the application was no longer important because  performance was impossible in the sense of we could have done something else other than not release the water i'm afraid once again she's not read our brief carefully  on what we what we discussed was that over a period of roughly ten years we were actually addressing there the injunction or demand that the government make that that too was a sovereign act what was said is that over the years reclamation instead of taking the appropriate steps to protect the fish had simply ignored its obligations on till they got so far  hole that the district court finally issued an injunction and said stop delivering water until you consult now as i said she was incorrect and would be happy to supply the court with a copy of the injunctive order she was