today we will talk about a case involving new maloney's present or a unit of the central valley project in california early on the united states needed the cooperation of the two plaintiffs in this case stocked reese water district and central joaquin water conservation district in order to complete its project it needed the promise of these two districts that they would utilize the water beneficially on their lands and would construct a sixty five million dollar conveyance facility to move that water from the federal day to their land so the united states used those promises to go back to the state of california and obtain the required approval however under both california law and the draw of the united states through the u s supreme court and section eight of the reclamation law the united states fault those water rights in trust for the landowners who put the water have the specific language is although the government diverted storage and distributed the water the contention of petitioner that they ownership of the wider water rights became vested in the united states is not well founded a preparation was made not for the use of the government but under the reclamation act for the use of the landowners and by the terms of the law and the contract already referred to the rider rights became the property of the land owners only distinct from the board and its own administration orders which state that the united states holds all water rights acquired project purposes in trust for the project beneficiaries who by use of the right on the land will become the true owners of the perpetual right the recently decided district correct but not the legal right to the water the legal right to the water legal right to divert the water remains in the us the diversion right remains in the united states the plaintiffs to construct a very large conveyance facility to get the water to their lands so just when both of those events had been completed is when the plaintiffs started asking for water and at that point in time for the first few years at their request they received nothing and then there were some deliveries and then for the later end of the time period issue in this case the deliveries will ratchet down significantly so one thousand nine hundred ninety three to two thousand and four the regulatory baronet was actually the same during that time period and it was the only time period where the plaintiffs could take water you remember move you referred to the  accordance with article three and article four of the contract however they received no water this issue is try to link in the trial court the evidence that came out was that the bureau of reclamation officials wrote back to these contractors and said please don't send us a schedule in the fall we will come out with an allocation in january february and march and we will tell you what we are going to get that explains the trial judge's conclusion i suppose t there was no breach on the part of the contractors for failure it's not clear from the opinion as to exactly what that there had been the exchange that explains why there was no it's unclear what impact that had and delivery because we never received any form of factual determination from the contracting officer for the years in dispute stating whether or not the deliveries under the center by project improvement purposes however there still remained a tremendous amount of water in storage for the bulk of the time period in dispute in this appeal there was so much water in storage in fact that the reservoir was over flowing and to comply with the requirements under the improvement of the sunni reclamation met all those requirements before there were any diversions for the practice was there still  extensive opinion all the way through and still puzzled as to exactly what the findings on that particular issue or can you help us with that and i'm going to ask the government contribute to the discussion i can help you with that that was actually the subject of extensive testimony at the trial court of though it did make its way into believing in the parties had stipulated to a chart which included a variety of information about the facts relating to operation of the reservoir and that chart is was joint exhibit twenty eight it was found at eight or nine seven six in the appellate record and it looks like this and printer it is in your appendix eight or nine seven six i believe it would be in the second volume maybe a little hard to read given that it's reduced in si column in the chart is the end of year storage amount in new maloney's every year now as you can see from this chart although in the early years storage levels were lower because of several then what is the explanation for why it wasn't they were providing that water we have never received an explanation for why the united states would not release water from storage to satisfy these contractors particularly in the early years when they were given zero it was particularly troublesome because a release of a mere ten or twenty thousand acre feet of water would have literally been less than the evaporation off of the reservoir in that year  explanation that is one of the key problems in this case the explanation that the contractors received came in the form of cursory press releases stating the amount of water that the contractors  entire central valley project would receive the testimony at trial illustrated that the contractors had representatives who were constantly on a letter writing campaign and requesting meetings with reclamation officials to learn more please the court t v kovacs for the united states this is an intensely factual appeal the districts have not met their burden on appeal of showing that the trial court's factual determination it's were clearly erroneous now focusing first i'd like to get to judge harris's question about the taking claim but but i think this this appeal really turns on the breach of contract claim and i'd like to get right to your question which i think is the heart of the case is that i'm over that and i'm going to  your question is my gosh article nine this case turns on article mind of these contracts what article nine does in essence is allocate the risk of shortage to the irrigation districts so long as the bureau of reclamation employs all reasonable means to avoid a shortage and the contracting officer determines that the shortages beyond the government's control article nine provides quote no liability shall their primary argument is they concede that most of what was going on in new malone is most of the reasons that the water was released from new malonis they concede that that takes priority over their pond tracts they concede that the b all that stuff is really irrelevant because they can see all of that take priority exactly only the other question it seems to me is is where was that water in the reservoir that could have met their needs exactly and if there was why didn't the government choose to make it available exactly in other words the way they put it they allege that the bureau of reclamation operated the project to conservatively and the entire basis for this argument that there was water left at the end of the season there was water in the reservoir over the winter the could have released that argument the trial court found was based entirely on their expert absolutely correct and at the table shows so the more than up water in the accepted core except it wasn't what the trial court found as a matter of fact is that it wasn't reasonable it wouldn't have been reasonable for the bureau to release that water at the end of the season because if you if you have letter in the reservoir you would lease it all you go through the winter and it doesn't rain as much as you hoped come springtime the bureau of reclamation might find itself in violation of state law so what they do  argument about it being physically the question is what is the test that the government was to be held to and i'm puzzled that the question is the question whether the government to employ all reasonable means to avoid a shortage and then the second sentence in doing what the two men operating the project the get the bureau has to employ all reasonable means object meaning sagal i'm a little puzzled between what the trial judge seemed focus on which was the question of whether the government acted reasonably under the circumstances taking into account that if they drew down prematurely then the late fall day and i wear a jacket but you choose not to and it turns cold and you say to me hey i'm cold can i have your jacket and i look at you and i say well not frankly because if i give you my jacket then i'll be called and that seems a reason that someone looking at this from the outside might say plague or acted reasonably and not giving his jacket because he would have been called and you chose not take the formal name for a hike i say to you governor i promise you that i will see to  that you i'll take all reasonable means to make sure you are not or when we go on the hike and you say i'm cold and then i refused to give you my jacket that may very well be a different case right i may have acted on reasonably because i am now under a duty to take all reasonable means which may include giving you my jacket or by socks or whatever else to keep you from being caught it seems to me that when i read an article nine it's not a question of whether the government acted reasonably in the operation of the opium war project or particularly of the money but whether the government took those actions necessary to use all reasonable means to guard against the condition shortly i don't find the evidence in the record on that issue seem help me and article nine provides no liability shall accrue when there's actually no breach of contract if article my left with the evidence in the government that has a pure to meet the standard of all reasonable means are you saying they going on as to what misplayed was talking about about the bureau of reclamation not providing the information the trial court found as a matter of fact and there is a long string site in the red brief a page forty nine and fifty that shows all of the places in the record where this information was provided to the districts now it's notable that unlike some other provisions in the contract articles to be and three egg article nine a does not require any written notice at all and that is direct contrast that's not the question the question is what evidence the government put in and can you please cite it to theirs i could tell the government didn't put on much in the way of witnesses that put in any witnesses on the question there they're using all reasonable means to guard against the conditions of shortage again i mean to the other in the trial court held early on in this case and repeatedly that they were the burden of proof as the plaintiff in the case they argued that the bureau of reclamation violated article mine and a in support of that allegation of that claim that the bureau of reclamation didn't use all reasonable means they relied almost entirely on an expert who did a post hoc mathematical manipulation using the computer model but he himself admitted that he was not opining about whether the operational decisions had been reasonable or they allege that the government should have purchased water in fact the government does purchase water that's one of the reasonable means that the bureau of reclamation of course and so there lived in the record that they purchased water in order to prevent a condition of shortages that loving to be able to satisfy the c b p and still be able to deliver water under the said i didn't is in the record that's in the record it's in the red brief another thing they alleged the bureau could have done is used what the number is that we should really value yes well under under articles three and four there are minimum and maximum amounts of status and this is i have to tell you this is a very unusual contract i don't think there from what i understand there are no other contracts that look like this and and reclamation law it's very unique and it's a unique reservoir it has a unique position geographically in the project as them and that's in the rent or something  maximum delivery amounts of water but article non allocates the risk of shortage that acknowledges that even if everybody does everything they can now shortages may occur and the district story numbers that you just gave us and a four nine seven say what is the shortage in the denim and when you read about what this gets back to their allegation that there was water in storage over the winter you should have released it the year before but that's again based on their expert saying and the bare number here doesn't account for the fact that if you were lease all that water in the fall of ninety four i mean the same circular argument this because that argument does not address the question of the evidence based on which the government we met our burden of carrying out you say nine and a is there is there  defense we met our burden using all reasonable means to guard against the condition of cured the trial judge understood this problem if you look on the a sixty four actually pa sixty two of the trial judge is opinion what the trial judge said was quoting from her own summary judgment opinion she says is there for the offended i believe that you have you have admitted liability as morning as reclamation is performance was not excuse by one of the other provisions of the contract most notably but not limited to article nine  in the question is where is the evidence that you did all of those things but again i think that she actually held that they continued to bear the burden of proof but even if you read the contract that way that it's an affirmative defense and we bore the burden of proof again the record shows that that it was not possible to use water from other parts of the project to satisfy the c p i that new malonis is in and that's why it is the preferred release point for meeting these state fishery and salinity in dissolved oxygen all these senior obligations the obligations that they can see our senior to their contract about this reservoir which is also in the record is that number one a says an unusual reservoir in that it has very low rates of inflow compared to the size of the reservoir so after this record five year drought the rest of the project recovered i guess fairly quickly the record shows that new malonis did not recover nearly as quickly as the rest of the project that's at pages thirty four ten thirty she wondered scenes this reflected i'm sorry the thing at this table again we've been talking that ninety ninety five in particular is the year that misplayed are referred to in one thousand nine hundred ninety four she said the bureau of reclamation gave power priority the the record actually shows to the contrary at pages thirty three eighty four and thirty nine sixty two that in one nine hundred ninety four the bureau of reclamation determined that that was a critically dry year and water deliveries had to be shorted simply because there wasn't enough water available the following year coming off of this five year drought had not recovered after this drought to the same extent the rest of the project then coming into a bunch of years they have conceded for various reasons are not at issue and the other period that is at issue is one thousand nine hundred nine to two thousand  four and the record shows that in those years again sixteen eighty two that the bureau of reclamation retained that water in storage over the winter in order to satisfy all of these obligations that they c first question in the case very briefly on that taking claim for the first time in their reply brief in this court that is the first time the plaintiffs made any effort to show that the trial court sponsor dismissal of the taking claim was wrong it's too little too late but there are allegations about california law are absolutely wrong he's versus clark was not a california case i believe that you're right it was in the  know the record what she did was was bifurcated liability and damages but everybody went into the trial with the understanding that the trial was about the breach of contract claim that's not reflected in the record but that is clearly what everybody that the taking claim was not on the table she sue a sponsor you dismissed the taking i am after the trial because of following this court's precedents including hughes communication and so on where this court has said that truck court should be was please vacate the dismissal and have a contract so we can decide whether we want to pursue this they never made an attempt they didn't even try to show that she was wrong for dismissing until their reply brief in the court of appeals that's too little too to the trial judge were designed to get the record as clear as possible on the breach of contract claim for the purpose of that when a pianist i'd like to briefly talk about article mining there is nothing in article ninety eight that says the united states is excused from liability maloney's or the greater c b p reasonably expressed language that is in the operation of the project united states will use all reasonable means to guard against a condition of shortage in the quantity of water bailable to the contractor pursuant to this contract it's an affirmative obligation to guard against shortage to be specific plaintiffs it's an obligation that even a trial court acknowledged united states did not have to accept th it secondly the second language of article mine a is a classic affirmative defense it requires that the contracting officer defined as the secretary of the interior or as designated agent must  who would say i was the contracting officer i declared a shortage and these were my reasons for doing so but we never heard that in fact the only person in that courtroom who ever set that these news releases satisfied article  mining was the attorney for the government not a single witness for the government stated that they were the contracting officer or identified the contracting officer or stated that the contracting officer ever issued a shortage determination under these contracts so the plaintiff had established that kind of case the burden switched to the government to explain why with water in the reservoir it still did not deliver what's the government put that evidence on if they had the standard would have seven thousand acre feet even though the reservoir completely filled in one thousand nine hundred nine through two thousand and four there was ample writer in the reza for the only testimony that the trial court relied on to conclude that there had been a shortage determination specifically asked why the allocation were what they were for the years in which he was in office and his answer to each question was i don't know he was a witness for the government but he also did not i officer if the court doesn't have any further questions i would like to just point out the burden of proof in this case the trial court seemed to think that the plaintiffs had the burden to prove that the united states operated unreasonably we've put in our papers a lot of cases that explaining that once the plaintiff has proven that the other party to the contract did not perform and put forth evidence showing