Although it was overshadowed by higher-profile cases, a California water controversy decided in late June by the U.S. Supreme Court might have been the most closely watched case by California farmers, water districts and environmentalists.

The case, Orff v. U.S., concerned the ability of farmers who get water from an irrigation district to sue the Bureau of Reclamation over water delivery cutbacks. The Supreme Court unanimously ruled that individual farmers could not sue the federal government in such instances. The decision relieved environmentalists, who feared that permitting individual lawsuits over Bureau of Reclamation water decisions would lead to widespread litigation and possibly push the Bureau away from allocating more water for the environment.

The farmers in this case are in the Westlands Water District, the nation’s largest irrigation district. It delivers more than 1 million-acre feet of water to a 600,000-acre district along Interstate 5 in Fresno and Kings counties. In 1992, Congress passed the Central Valley Project Improvement Act, which forced the Bureau of Reclamation to dedicate some water from the Central Valley Project to fish and wildlife habitat. The following year, the Bureau announced a 50% reduction in deliveries to water districts south of the Sacramento-San Joaquin River Delta, primarily to aid endangered Chinook salmon.

Westlands and other water districts sued the Bureau, but the sides settled two years later as part of negotiations that led to creation of the Cal-Fed Bay Delta program. About two dozen landowners and water uses in Westlands, however, wanted to continue the litigation. They argued that they had a right to the water that the Bureau was withholding, and they requested $32 million in compensation. The farmers contended that, although they were not parties to the water delivery contract between the Bureau and the Westlands district, they were “third party beneficiaries” who could sue to enforce the contract’s provisions.

A federal district court and the Ninth U.S. Circuit Court of Appeals ruled that sovereign immunity barred the farmers’ lawsuit. Essentially, the federal government can decide who may sue it, and the farmers were not eligible.

The Supreme Court accepted the farmers’ case apparently because the decision conflicted with a 1984 case, H.F. Allen Orchards v. United States, 749 F.2d 1571, in which farmers in a State of Washington irrigation district were allowed to sue the federal government.

At the high court, the farmers argued that a waiver from sovereign immunity contained in the Reclamation Reform Act of 1982 (43 U.S.C. § 390uu) permitted their lawsuit. That section permits lawsuits seeking adjudication of rights contained in any contract signed under federal reclamation law.

In a unanimous opinion written by Justice Clarence Thomas, the high court said that the Westlands farmers were misreading § 390uu.

“Section 390uu grants consent ‘to join the United States as a necessary party defendant in any suit to adjudicate’ certain rights under a federal reclamation contract,” Thomas wrote. “This language is best interpreted to grant consent to join the United States in an action between other parties — for example, two water districts, or a water district and its members — when the action requires construction of a reclamation contract and joinder of the United States is necessary. It does not permit a plaintiff to sue the United States alone.”

“The statute does not waive immunity from suits directly against the United State,” Thomas concluded.

After the Supreme Court issued the ruling, the farmers involved said they might seek compensation in the U.S. Court of Federal Claims — a possibility that the Supreme Court justices themselves raised during oral argument.

The Case:
Orff v. United States, No. 03-1566, 05 C.D.O.S. 5484, 2005 DJDAR 7505. Filed June 23, 2005.

The Lawyers:
For Orff: William Smiland, Smiland, Khachigian & Chester, (213) 891-1010.
For the U.S.: Jeffrey Minear, assistant U.S. solicitor general, (202) 514-2217.
For Westlands Water District: Stuart Somach, Somach, Simmons & Dunn, (916) 446-7979.