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September 18, 1985


The opinion of the court was delivered by: QUACKENBUSH

 BEFORE THE COURT is the government's Motion for Summary Judgment (Ct. Rec. 21), *fn1" which came on for hearing with oral argument as scheduled September 9, 1985. Plaintiffs were represented by Bryan G. Evenson and Burton J. Goldstein; Assistant United States Attorney Robert M. Sweeney appeared on behalf of the government.


 This is a case brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., by about 159 farmers and irrigation system users in the Yakima Valley of South Central Washington for miscalculation by the Bureau of Reclamation of their irrigation water supply for 1977. The suit seeks recovery for losses arising from the irrigation users' alteration of farm operations in reliance upon the Bureau's 1977 water supply forecast.

 Plaintiffs in these actions are members of irrigation districts in the Yakima River Valley who receive irrigation water under contracts between the districts and the United States, through the Bureau of Reclamation's Yakima Project. The facilities of the Yakima Project, which include six (6) storage reservoirs and related dams, canals and pumping plants, are used to supply water in monthly allocations to irrigation districts, which then convey the water in their own canals for distribution to member farmers and ranchers. The water is supplied subject to the water rights of the various districts established in a Consent Decree entered on January 31, 1945, in Kittitas Reclamation District v. Sunnyside Valley Irrigation District (Eastern District of Washington, Southern Division, Civil Action No. 21) (Appendix Document 1, Ct. Rec. 22).

 The Consent Decree established, among other things, the obligation of the United States to distribute irrigation water according to a defined formula in a period of insufficient supply. For purposes of distributing water in a "dry" year, the irrigation districts were classified as either "non-proratables" holding senior water rights or "proratables" holding junior rights. In a year of short supply, the rights of non-proratables were to be fully satisfied from the available supply before the proratables received any water. Two of the larger districts within the Yakima Project, the Kittitas Reclamation District and the Roza Irrigation District, held water rights that were one hundred percent proratable. The Wapato Irrigation Project held rights that were fifty percent proratable and fifty percent non-proratable. Most of the rights of the Sunnyside Valley and Yakima-Tieton Irrigation Districts were non-proratable rights. Of the approximately 13,000 individual water users in the Yakima Project, about one-half were supplied with non-proratable water and the rest received water subject to proration during periods of shortage. The 159 plaintiffs herein are members of districts having proratable water rights (Ct. Rec. 35, pp. 7-8).

 Paragraph 18 of the Consent Decree provided a method for calculating the amount of irrigation water available in any given year, which figure was known as the "total water supply available" (TWSA).

For purposes of this judgment "total water supply available" is defined as that amount of water available in any year from natural flow of the Yakima River, and its tributaries, from storage in the various Government reservoirs on the Yakima watershed and from other sources, to supply the contract obligations of the United States to deliver water and to supply claimed rights to the use of the water on the Yakima River, and its tributaries, heretofore recognized by the United States.

 Thus, there are three components in the calculation of TWSA: water from the natural flow of the Yakima River and its tributaries; from storage in government reservoirs; and from "other sources," which refer primarily to "return flow," i.e., the amount returning to the river system after being diverted for irrigation purposes. Miscalculation of the latter component, return flow, was central in the events leading to this litigation.

 Drought conditions in the Yakima River basin in the fall of 1976 and early 1977 caused the Bureau of Reclamation to invoke, for the first time in 32 years, the provisions of the Consent Decree regarding allocation of water between proratable and non-proratable users. In order to do so, the Bureau made a TWSA calculation which was announced on February 7, 1977 (the government has alleged that the Consent Decree did not specify that the Bureau was to make and communicate such calculation, but that Bureau employees determined it was logical and necessary to do so). This first forecast, which Bureau hydrologists allege they couched in a "worst possible scenario" context, projected a total water supply for the 1977 irrigation season of 1,220,000 acre feet. With the non-proratable water rights to be supplied first, proratable water users were told that they would receive, under the forecast, only seven percent (7%) of their normal water supply (Ct. Rec. 34, p. 13).

 On March 18, 1977, the Roza Irrigation District filed a motion in United States District Court, Eastern District of Washington, asking the court to reopen the 1945 Consent Decree, enjoin the Bureau from allocating water from the Yakima Project in accordance with the Bureau's interpretation of the Decree, and order a "more just and equitable" distribution of the water. The motion was denied on April 26, 1977 (Ct. Rec. 25, pp. 10-11).

 Meanwhile, on April 7, 1977, the Bureau revised its TWSA figure to approximately 1,490,000 acre feet, which had the effect of increasing the proratable supply from about seven percent (7%) to thirteen percent (13%). The ostensible reason for the increased estimate was improved precipitation (Ct. Rec. 25, p. 11) but deposition testimony indicated that the increase was effected when the Bureau's Yakima and Boise offices, in a bureaucratic dispute about the proper projected TWSA, "split the difference" between the projections of the two offices (Ct. Rec. 34, pp. 18-19).

 In April and May, Bureau hydrologists discovered more water in the Yakima River system than estimated and recalculated the TWSA, for the first time adding return flow as a distinct element. Proratable users were now to receive fifty percent of their normal supply. The Bureau maintains that it previously could not have added return flow separately because of a lack of data about actual diversions being made and reports of water actually returning to the river system after diversion (Ct. Rec. 25, pp. 11-12). Plaintiffs, on the other hand, contend that the Bureau's failure from the outset to isolate return flow from its runoff figures, and to include return flow as a "double entry" was negligent; "the source of the error was not insufficiency of empirical data, but the Bureau's conceptual misunderstanding . . ." (Ct. Rec. 34, p. 21). An affidavit by plaintiffs' expert, John A. Dracup, explains that

. . . return flow is water which originates as natural flow or precipitation which has been diverted once for irrigation, but which has returned to the river system for a second or third, etc., subsequent downstream diversion and is thus reused possibly numerous times. Therefore, in an irrigation water supply computation, return flow must be separately added as a "double entry" or in effect as an artificial tributary to the river system.

 (Ct. Rec. 33, p. 8). Mr. Dracup stated his belief that "the Bureau of Reclamation employees failed to act as reasonable and prudent hydrologists and water managers" in failing to separately add return flow to pre-May 1977 computations and in assuming that runoff measurements included return flow (Id.).

 Following the 1977 irrigation season, plaintiffs filed administrative claims with the Bureau of Reclamation as required by 28 U.S.C. § 2675(a). After the claims were denied by the Solicitor of the Department of the Interior, these actions were filed. While the original Schinmann complaint included allegations that the government had failed to enlarge its water storage facilities "equivalent to [its] contractual commitment to deliver irrigation water," that claim appears to have been discarded in favor of the claim of a negligently-forecast water supply.

 Plaintiffs previously filed a Tucker Act action based upon similar facts in the United States Court of Claims but proceeded to file this action "to preserve plaintiffs' remedies" (Ct. Rec. 1). The Court of Claims action was dismissed on the government's motion for summary judgment, and dismissal was affirmed by the Ninth Circuit Court of Appeals which agreed that the Consent Decree did not expressly obligate the Bureau to inform farmers of available water in a time of shortage. H. F. Allen Orchards v. United States, 749 F.2d 1571 (9th Cir. 1984). Most of the materials submitted by plaintiffs in opposition to the present summary judgment motion are discovery from the Court of Claims action.


 The government has filed a motion for summary judgment for failure to state a claim upon which relief can be granted and lack of jurisdiction under the Federal Tort Claims Act. Specifically, the government alleges three bases on which it claims summary judgment is appropriate. It says the claim is barred (1) by the misrepresentation exception of 28 U.S.C. § 2680(h); (2) by the discretionary acts exception of 28 U.S.C. § 2680(a); and (3) by the exculpatory clauses of the contracts between the United States and the irrigation districts (Ct. Rec. 24). The government has submitted, in support of its motion, the affidavits of William Gray, former superintendent of the Yakima Project (Ct. Rec. 30), Onni Perala, chief of hydrology at the Yakima Project during the relevant period herein (Ct. Rec. 29) and Daniel Yribar, river operations coordinator at the Bureau's regional office in Boise (Ct. Rec. 28). These affidavits state, in general, that the Bureau operated the Yakima Project in compliance with the Consent Decree and the District Court's April, 1977 Order; that the Bureau's miscalculations were caused by a number of unknown variables and lack of empirical data and that changes in the TWSA were necessitated by abnormal weather conditions and the difficulties inherent in interpreting, for the first time, the relevant Consent Decree provisions.

 Plaintiffs respond, in essence, that neither statutory exception nor the exculpatory clauses apply to shield the government from suit under the present circumstances. They allege that the Bureau's miscalculations -- "operational" rather than discretionary tasks -- came not from lack of data, an ambiguous Consent Decree or abnormal weather conditions, but from "gross conceptual error" (Ct. Rec. 34, p. 15). Plaintiffs claim there was an existing, historically sound rule that the Bureau could have used to project return flow (Ct. Rec. 34, p. 20) but instead the government ignored return flow as the primary "other source" of water which was required by the Consent Decree to be separately added in computing TWSA. Plaintiffs further allege that Yakima Project officials were led astray by the regional office in Boise, which tried to apply flood control principles to the problems of estimating irrigation water supply. They also cite depositions of Bureau employees in an attempt to establish that the employees knowingly engaged in "guesstimates," refusing to apply their own scientific evidence (Ct. Rec. 34, pp. 11-23).

 Plaintiffs claim the primary disputed material facts include: (1) whether the Bureau hydrologists had sufficient information to make an initial return flow computation; (2) whether the subsequent increases in estimates of water supply were due to the negligence of the Bureau or to unseasonable rains and other unforeseeable variables; (3) whether the Consent Decree's formula was actually unique and difficult to apply; and, (4) whether the Bureau's hydrologists engaged in conceptual error which deviated from a required standard of care (Ct. Rec. 35).

 In its Reply Memorandum, the government concedes that upon this motion the court should accept as true plaintiffs' allegations of negligence in the Bureau's calculation of the 1977 irrigation water supply (Ct. Rec. 38, p. 5). However, "even if the water supply forecast was negligently calculated, the plaintiffs' claims are still barred by the misrepresentation and discretionary function exceptions to the Federal Tort Claims Act" (the government has placed secondary emphasis on its exculpatory clause defense).

 Summary judgment is appropriate where, viewing the evidence and the inferences arising therefrom in favor of the non-movant, there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; Cardwell v. Kurtz, 765 F.2d 776, slip op. p. 4 (9th Cir. 1985). In the present case the court must assume, for the purposes of this motion, that the government acted negligently in its calculation of the 1977 water supply forecast. However, it must still be determined whether the ...

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