Free Notice (Other) - District Court of Federal Claims - federal

Case 1:97-cv-00733-BAF

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Filed 06/26/2008

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DistrictCourt initially dismissed the complaint on the basis that exclusive jurisdiction of this case was vested in the United the United States Code (28 USC § 1346(b)). II. Upon motion by the defendant United States of America, the Tort Claims Act, Sections 2681 through 2680 of Title 28 of the United States Code (28 USC §§ 2671 through 2680). That Court was vested with jurisdiction pursuant to Section 1346(b) of Title 28 of I. This action was initially filed in the United States District Court, Eastern District of Washington as arising under the Federal The plaintiffs, A. Dean Oswalt and Reinie Oswalt, husband and wife; Craig Oswalt and Michelle Oswalt, husband and wife; and Kirk Oswalt and Stacie Oswalt, husband and wife, allege as follows:
VS.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS A. DEAN OSWALT and REINIE OSWALT, husband and wife; CRAIG OSWALT and MICHELLE OSWALT, husband and wife; and KIRK OSWALT and STACIE OSWALT, husband and wife;

United States of America.

) ) ) ) ) ) ) ) ) ) ) ) )

NO. 97-733 C (Judge Futey)

AMENDED COMPLAINT

A1

Velikanje

Moore & Shore,
ittoinill it Iiw

405 East Lincoln Ave. P.O. Box 22550 Yakima, WA 98907

Case 1:97-cv-00733-BAF

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States Court of Federal Claims. A true and correct copy of this Order is attached to the Defendant's Motion to Dismiss, or in the Alternative, for a More Definite Statement at Appendix 1-9, and is hereby incorporated by this reference. The Court later amended this ruling and ordered that this case be transferred to the United States Court of Federal Claims ~pursuant to 28 U.S.C. § 1631. A true and correct copy of that order granting plaintiffs' motion to amend to Defendant's Motion to Dismiss, or in the Alternative, for a More Definite Statement at Appendix 10-12 and is hereb~ incorporated by this reference. III. This Court is vested with jurisdiction pursuant to 28 U.S.C. §§ 1346 &. 1491 and/or by virtue of the fact that the District Court's transfer order sets forth a "plausible" rationale for jurisdiction and is not clearly erroneous. IV. The plaintiffs A. Dean Oswalt and Reinie Oswalt were and are at all times relevant to this suit, husband and wife engaged in thebusiness of farming lands located in Yakima County, Washington. Said plaintiffs also reside in Yakima County, Washington. The

plaintiffs Craig Oswalt and Michelle Oswalt were and are at all times relevant to this suit, husband and wife engaged in the business of farming lands located in Yakima County, Washington. Said plaintiffs also reside in Yakima County, Washington. The

plaintiffs Kirk Oswalt and Stacie Oswalt were and are at all times relevant to this suit, husband and wife engaged in the business of

AMENDED COMPLAINT - 2 229311b

A2

,V~likanje Moore & Shore, P.S.

'~"'~//~ 405 East Lincoln Ave.

,tlo,= ,y, ,t

I,w

%1~ .........

P.O. Box 22550 Yakirna, WA 98907

Case 1:97-cv-00733-BAF

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farming lands located in Yakima County, Washington.

Said

plaintiffs also reside in Yakima County, Washington. All the acts or omissions herein complained of occurred within the Yakima Indian Reservation in Yakima County, Washington° V. The Yakima Indian Reservation was established by the Treaty of June 9, 1855 and was proclaimed by the President on April 18, 1859. In 1887, Congress passed the General Allotment Act, (24 Stat. 388)~ which would a~low-individual members of the Yakima Nation to select either 160 acres of grazing land or 80 acres of agricultural la~d in their individual capacities. Eligible members began their

selections in 1892 and in 1897 ~he first allotments of 40 and 80 acre tracts of agricultural land were made. The Act of May 27, 1902 (32 Star. 275) provided for the sale of the allotments, allowing the conveyance of "a full title to the purchaser, the same as if a final patent without restriction upon the alienation had been issued to the allottee." VI. On or about June 17, 1902 Congress passed the Reclamation Act, 43 U.S.C. §390 et seq. and shortly thereafter investigation was begun of the Yakima River Basin. The State of Washington passed the state Irrigation Act March 4, 1905 (R.C.W. 90.40) and ,on May i0, 1905, the United States, pursuant thereto, withdrew al! of the then unappropr~ated.waters of the Yakima River and its major tributaries. This action resulted in the creation of the Yakima Basin Reclamation.Project. The Yakima Indian Reservation was to

AMENDED COMPLAINT - 3 229311b

A3

Velikanje I Moore & Shore, PoS.

405 East Lincoln Ave, P,O. Box 2255~

Case 1:97-cv-00733-BAF

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become known as the Wapato Irrigation Project (hereinafter referred to as "WIP") portion of the Yakima Reclamation Project. The Wapato Irrigation Project is the largest irrigation district in the federal Yakima Reclamation Project with lands exceeding 136,000 acres. Approximately 55% of the land is Indian trust land and 45%
is individually owned.

VII. In December 1904 Congress passed additional legislation applicable te_the Yakima Indian Reservation under the act of 33 Stat. 595. This statute provided, in pertinent part:

lO 11 12 13 14 15 16 17 18
,,19

2O 21 22 23 24
26 27

That the Secretary of the Interior is hereby authorized, in the cases of entrymen and purchasers of lands now irrigated or that may hereafter be irrigated from systems constructed for the benefit" of the Indians, to require such annual proportionate payments to be made as may be just and equitable for the maintenance of said systems; provided, that in appraising the value of irrigable lands, such sum per acre as the Secretary of the Interior may deem proper, to be determined as nearly as may be by the total cost of the irrigation system or systems, shall be added as the proportionate share of the cost of placing water on said lands, and when the entrymen or purchaser shall have paid in full the appraised value of the land, including the costs of providing water therefore, the Secretary of the Interior shall give to him such evidence of title in writing to a perpetual water right as may be deemed suitable. VIII.
In order to fulfill this statutory requirement, by 1909 a Petition for Water Right within the Wapato Unit was required to be

28 29 30 31 32 33 34 35

executed by all applicants for patents in fee before any water
could be delivered, to the land. Now designated as

"Application for Water Right," it indicates that the owner of the land "desires to acquire a permanent right to water for irrigation

AMENDED COMPLAINT - 4 229311b

A4

Velikanje

Moore & Shore, ~s.

405 East Lincoln Ave. R0. Box 22550 Yakima. WA

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purposes".

It requires the owner to pay their "proportionate"

share of the irrigation charges applicable to their land and such charges are a "first lien" against the land. The U.S., acting through the Project Engineer, also reserves the right to refuse delivery of any water to the land upon the failure of the landown~ to promptly pay the irrigation charges. It further provides th~ . when the irrigation charges have been paid, the U.S. will .th~ cause to be issued to the owners of the land a water rig] certificate ~Q the "fact that such land has a perpetual water rig] attached thereto. IX. Before approving the Yakima Reclamation Project in 1906, the Acting Secretary of the Interior had arbitrarily limited the diversion of water from the Yakima River to 147 cubic feet per second. This amount of water was not sufficient to satisfy the present or future irrigation needs and based on this fact, Congress passed the Act of August i, 1914 which provided "at least seven hundred and twenty cubic feet per second of water . . for the. irrigation of forty acres on each Indian allotment." X. On July 16, 1914, the Secretary approved the last schedule of 1,800 eighty acre allotments. Pursuant to the Act of 1914, the Interior Department designated 40 acres of each of the 1800 allotments that were to receive the 720 c.f.s from the Yakima River. This constituted 72,000 acres which were then established as the "A" lands. Another 48,000 acres were designated as the "B"

AMENDED COMPLAINT - 5 229311b

A5

Velikanje

Moore & Shore, P.S.
l|tU,lly, It IIW

405 East Lincoln Ave. RO. Box 22550 Yakirna, WA 98907

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lands. This designation then accounted for the entire 120,000 acres of land that had previously been identified as potentially irrigable acres. XI. The Warren Act of 1911, passed by Congress, authorized the United States to contract for the storage and carriage of water from the construction and use of reservoirs and diversion facilities in reclamation projects. Pursuant to the Act, the

9
10 11

12 13 14 15 16 17 ~4k~" 18 ~ 19 20 21 22 23 24 25 26 27 28 29 30 31
32 33 34

Bureau of Reclamation (hereinafter referred to as the "BOR") and the now Bureau of Indian Affairs (hereinafter referred to as the "BIA") entered into a contract on March 9, 1921, to divert 250,000 acre feet of storage water from the Yakima River to the Wapato Irrigation Project. This water was to supply irrigation to the "B" lands referenced in the preceding paragraph of this complaint. On September 3, 1936, the BOR and the BIA entered into a contract for an additional 100,000 acre feet of storage water, to be diverted from the Yakima River. This water was to be applied to the "A" lands referenced in the preceding paragraph of this complaint. XII. The WIP is only one of numerous irrigation districts within the Yakima Reclamation Project. Each of these districts will have an entitlement to water that will either be on a "proratable" or "non-proratable" basis. All "non-proratable" water requirements must be met before.any of the "proratable" needs will be fulfilled. Since the inception of the Yakima Reclamation Project, the "nonproratable" water requirements have been provided, in full, in

35

AMENDED COMPLAINT - 6 229311b

A6
Q

V'elikanje Moore & Shore, P.s.
}11|0IIII11 It

405 East Lincoln Ave. P.O. Box 22550 Yakima, WA 98907

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every year. However, during water short years, the "proratable" water requirement has had to be cut back from full allocations. Thus, the "proratable" water is only provided in a certain percentage of what the full right would be if sufficient water was available to supply the full right. XIII. The 720 cubic feet per second of water appurtenant to the "A" lands as set forth in paragraph X above are "non-proratable" waters. The _two contracts for the 250,000 acre feet and i00,000 acre feet of water as set forth in paragraph XI above "proratable" waters. XIV. In addition to the Acts of Congress and contracts as set forth above, the duties and obligation for the delivery and entitlement to irriga~i?.~.w~ fo.r. entities 109ate~.~n. th.e~Yakim.a Reclam~ti0.n
Project were the subject of a consent decree_entered in 1945 .in

Kittitas Reclamation Dist. V. Sunnyside Vly. hrig. Dist. (E.D. Wash. 1939) (Civil Action No. 21) . Those duties and obligations for the delivery and entitlement to irrigation water for entities located in the Yakima Reclamation Project are also the subject of a pending general water adjudication action in Washington, Ecolo~ v. AquaveH~ Yakima County Cause No. 77-2-01484-5. A "Conditional Final Order" adjudicating the water rights of the Yakima Indian Nation was entered by the court on September°12, 1996. A true and correct copy of this order is attached to the affidavit of J. Jay Carroll on file herein and is hereby incorporated by this reference. AMENDED COMPLAINT - 7 229311b

A7

Ve|ikanje Moore 8= Shore, P.S.
o [Itt0ruey= ~! l|w

VNiSI

405 East Lincoln Ave. RO. Box 22550 Yakirna, WA 98907

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XV. In 1994, the plaintiffs leased or owned certain lands located within the Wapato Irrigation Project within the Yakima Indian Reservation in Yakima County, Washington for the purpose of raising commercial crops. In order to grow the crops that were to be

planted, the plaintiffs required the use of supplemental irrigation water that was to be provided from the Yakima River through the diversions and canals of the Wapato Irrigation Project. XVI. The right to obtain irrigation water for all fee lands owned or leased by the plaintiffs are derived from the "Application for Water Right Wapato Unit Yakima .Reservation, Washington". The

applicable applications concerning lands owned or leased by.the plaintiffs are attached to the Declaration of Benjamin A. Domondon as "Attachment 2" (Exhibit 5 to the United States' Statement of Material Facts on file herein) and are hereby incorporated by this
reference.

XVII. The right to obtain irrigation water for all trust lands leased by the plaintiffs are derived from the various leases entered into by the plaintiffs. These leases are attached to the Declaration of Benjamin A. Domondon as "Attachment 3" (Exhibit 5 tc the United States' Statement of Material Facts on file herein) and are hereby incorporated by this reference.

AMENDED COMPLAINT - 8 229311b

A8

Velikanje

Moore ~ Shore, Rs. ittof=eyI at law

405 East Lincoln Ave. RO, Box 22550 Yakima, WA 98907

Case 1:97-cv-00733-BAF

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1 2 3 4 5
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 29 30 31 32 33 34 35 AMENDED COMPLAINT - 9 229311b 794
299

XVIII. With respect to the plaintiffs in this case, the lands that they either owned or leased in 1994 can be broken down into "A" and "B" lands as follows: A. Dean Oswalt

~ :~:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

"
:.. " :
.:

1591C ~ ',
1675 ~ .... .
"" ' . Z " -- I ',,

40

35 2O 20

15.63 39.59

300
596 361

~,.
..

1652 3174 0361

-

:

52.4
39.48
6.9

46.1 12~79
0.00
25.38

363
1988 :" -""

0363 -' '-~..~

2081
2121 '-,:' " 2108 ~ ...,. " ..... ,.

85O
T2661 /¢": =' T290 !~,.,,.....

40

0.00 0.00
4O
..'37.6 ....,:.-.:

2756~
2027~ ~

13 0.00

T2482 !
TII31½ :

'-

1649 ~

33.4
0.00 40

2440B~ ,,..,u- . ..~' . 38.75 2452 ..

263
'3O

4O

39.5 499.85

TOTALS

/// /// /// /// ///

A9

=Velikanje Moore 8~ Shore, P.S.

405 East Lincoln Ave. P.O. Box 22550 Yakima, WA 98907

Case 1:97-cv-00733-BAF

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 XX.

766 T2303 & 2303.
3704 & 3705.

~0766
~2688 ~704 & 370D ~ ,2704

4O 4O

32.5 24.6 0.00

39.5 4O

40 39.5 136.6

848

~1784

TOTAL

224.5

38.2 4O

78.2
XIX.
The plaintiffs paid and or made satisfactory arrangements to pay all assessments required for the delivery or irrigation water from the WIP to the leased or owned lands in questions. As of this date, all assessments for the 1994 irrigation season have been paid by the plaintiffs. By virtue of having paid and or made

satisfactory arrangements for payment of irrigation assessments, the plaintiffs were entitled to the delivery of their proportionate share of irrigation water provided by the WIP.

Beginning in March of 1994, the plaintiffs planted the leased lands to crops which would require the supplemental irrigation water provided by the WIP in order to properly grow and produce a

AMENDED COMPLAINT - 10 229311b

Velikanje

Moore ~ Shore,

A10

405 East Lincoln Ave. R0. Box 22550 Yakirna, WA 98907 (509) 248-6030

Case 1:97-cv-00733-BAF

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commercial crop.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

Additionally, some of the land was already

planted to mint which would also need the supplemental irrigation water provided by the WIP in order to properly grow and produce a commercial crop. Irrigation water from the WIP was beneficially applied to all leased lands beginning in April 1994 and continuing on through June 9, 1994. XXI. During the approximate time frame of June i0, 1994, through July 25, the plaintiffs received little or no irrigation water from the WIP. During this time frame the plaintiffs repeatedly As a direct and

requested the deliver~ of irrigation water.

proximate result of this lack of water, the plaintiffs suffered a loss of production in the crops that they grew. XXII. At all times herein mentioned, defendant, by and through the Department of Interior, Bureau of Indian Affairs, Wapato Irrigation Project, a federal agency of defendant, operates, controls and manages the diversion a~d distribution facilities which serve the lands within the Wapato Irrigation Project.
~III.

Plaintiffs made repeated requests to WIP personnel for the delivery of irrigation water during the approximate time frame of June i0, 1994 through July 25, 1994. Despite said requests,

plaintiffs were provided with little or no water to apply to their crops during that time frame. At the same time, other farmers on the same canals were receiving irrigation water sufficient to water

AMENDED COMPLAINT - Ii 229311b

A11

Veiikanje Moore &Shore, P.S.
~ltt~fllyI It IIW

!

405 East Lincoln Ave. P.O. Box 22550 Yakirna, WA 98907
IKNq~ 9~q.RN~f~

Case 1:97-cv-00733-BAF

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their crops. By virtue of having paid and or made satisfactory arrangements to pay the assessments, the plaintiffs had the same right to irrigation water as any other person or entity in the WIP who paid his or her assessment. Plaintiffs did not receive their proportionate share of irrigation water from the WIP in 1994. XXIV. As a direct and proximate result of the defendant's breach of contract for failing to deliver their proportionate share of irrigation water upon the payment or promise to pay applicableassessments, plaintiffs suffered a loss of production in the commercial crops grow~ on their lands serviced by the WIP in 19~4 in addition to incurring expenses in an attempt to obtain some water for irrigation purposes during the time in question in the following amounts: Plaintiffs A. Dean and Reinie Oswalt: $205,754.77; Plaintiffs Craig and Michelle Oswalt: $76,745.18; and Kirk and Stacie Oswalt: $38,'146.68. XXV. The plaintiffs are entitled, pursuant to 28 U.S.C. § 2412, to an award o~ ~ees and other expenses in that the position of th~ United States is not substantially justified. WHEREFORE, plaintiffs request judgment against Defendant as follows: (i) As to plaintiffs A. Dean Oswalt and Reinie Oswalt, $205,754.77;

AMENDED COMPLAINT - 12 229311b

A12

=V'elikanje Moore 8= Shore, P.S.

VNIS

405 EastLincoln Ave. R0. Box 22550 Yakima, WA 98907 (509) 248-6030

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(2) As

to plaintiffs Craig Oswalt and Michelle Oswalt,

$76,745.18; (3) As $38,146.68; (4) As to all plaintiffs, incurred in this matter; their fees and other expenses
to plaintiffs

Kirk Oswalt

and Stacie Oswalt,

(5)

Such other and further

relief as the court may deem just

and equitable.
DATED this of April, 1998.

VELIKANJE, MOORE & SHORE, fo~laintiffs Attoy By.: ."~-

P.S.

I

J.
ws
CERTIFICATE OF TRANSMITTAL I hm'eb), certify that we zent a cope! of this to the ,,ttorneys for th~ "~/d-~fendants by m,~ll, postage prepaid, e+--5~, ~i~J,-,~,~ .~.,:,~,,~:~--~.~:~.'!c~.. I certify under penal~y of per.lug.,, u.~,er the; l~.v~,,~ of the State of Washington that, t~e.]'o/'sg~l~'~ I~ true and correct.

Yaklma, WA"t"711

/gX' ,,

AMENDED COMPLAINT 229311b

- 13

V.elikanjs I Moore 8= Shore, P.s.
|

A13

VNIS/

405 East Lincoln Ave. RO. Box 22550 Yakima, WA 98907 (509) 248-6031)

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No. 97-733C (Filed October 17, 2000)

A. DEAN OSWALT and REINIE OSWALT, husband and wife, et al.,

Plaintiffs,

THE UNITED STATES, Defendant.

* *

John Jay Carroll, Yakima, Washington, attorney of record fo~ plaintiff.
Kathleen Zahorik Quill, Department of Justice, Washington, D.C., with whom was Acting Assistant Attorney General David W. Ogden, for defendant. David M. Cohen, Director, James M~ Kinsella, Deputy Director. OPINION
Futey, ~

This breach of contract case is before the court on defendant's motion to dismiss or, ill the alternative, motion for summary judgment, mid plaintiffs' crossmotion for summary judgment. Defendant maintains this court lacks jurisdiction over plaintiffs' claims concerning their alleged right to receive water on several properties located in the Wapato Irrigation Project (WIP) in Yakima County, Washington, In the alternative, defendant contends plaintiffs failed to exhaust administrative remedies before bringing this action. Plaintiffs maintain they are owners or lessees of the properties at issue and that they made sufficient arrangements to pay their operation and maintenance assessments to receive irrigation water. Plaintiffs assert defendant's failure to provide them with thee portion of water breached their lease agreements and in_fringed their water rights obtained through ownership of the lands.

RECEIVED

A14

A002

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Facial Background Plaintiffs A. Dean and Reinie Oswalt, Craig and Michelle Oswalt, and Kirk and Stacie Oswalt (Plaintiffs) farm lands located within WIP. WIP is located in the Yakima Indian Reservation (Reservation), and is administered by the Bureau of Indian Affairs (BIA) on behalf of the Secretary of the Department of the Interior (Secretary).~ The Reservation, created by treaty on Iune 9, 1855, is located in Yaldma County, Washington. In 1887, Congress passed the General Allotment Act (GAA), which directed the Secretary to allot lands within the Reservation to individual Indians. 24 Star. 388 (1887). The GAA also authorized the Secretary to hold the allotted land in trust for a period of twenty-five years. 24 Star. 389 (1887). The GAA further authorized the Secretary to promulgate rules and regulations in order "to secure a just and equal distribution" of irrigation water to the extent the water was necessary to render the land "available for.., agricultural purposes." 24 Stat. 390 (1887). The Reclamation Act of 1902 (P,A) permitted the Secretary to construct h-rigation projects to provide water for agricultural purposes. 43 U.S.C. § 317 (repealed). WIP was created pursuant to the RA. That same year Congress enacted legislation ..that permitted American Indians or their heirs to sell and convey land obtained via the GAA. 32 Stat. 275 (1902). In 1904, Congress directed the Secretary "to sell or dispose of unallotted lands embraced in the Yaldma Indian Reservation." 33 Star. 59.6 (1904). This legislation required the Secretary to apply the proceeds of the sale of unallotted land to, among other things, "the construction, .completion, and maintenance of irrigation ditches." 33 Star. 597 (1904). This legislation further permitted the Secretary "to require.., annual proportionate payments to be made as may be just and equitabIe for the maintenance of [irrigation] systems." 33 Star. 358 (1904). In 19 I6, Congress enacted legislation authorizing the construction of a dam across the Yakima River for ~ the diversion and utilization of water provided for forty acres of each Indian allotment on the Yaldma Reservation." 39 Stat. 154 (1916). In addition, this legislation permitted the Secretary to fix operation and maintenance charges, as well as implement rules and regulations concerning the distribution of water, ld. The Secretary promulgated regulations governing the irrigation of Indian lands that are directed at the operation and maintenance of the water delivery system. 25 C.F.R. Part 171 (1994). Under this regulatory scheme, WIP is one of numerous irrigation districts located within the Yaldma Reclamation Project.

AOO3
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defendant, acting through BIA, sets rates paid for water, assesses and collects fees for maintenance, and delivers irrigation water to the boundary of individual farm units. 25 C.F.R. § 171 (1994). BIA also operates, controls, and manages the diversion and distribution facilities that serve the lands within WIP.2 Once water is diverted into the Yaldma Indian Reservation at WIP diversion points, WIP allocates this water among landowners or users through a system of irrigation canals ? There are two categories of land serviced by irrigation water -- fee lands and trust lands. Fee lands are lands conveyed by the Department of the Interior to private individuals, who in the present case allegedly sold or leased these lands to plaintiffs. Trust lands, however, are heId by the Secretary in trust for the Yakima Nation, and they are leased by Indians. Plaintiffs assert they leased numerous trust lands in WIP. The right to ob .rain irrigation water for fee lands is governed by a document entitled "Apph'cafion for Water Right." The Application for Water Right incorporates 39 Star. 154 (19i6), and states "[t]he cost of the entire diversion works and distribution and drainage system shall be reimbursed to the United States by the owners of the lands irrigable thereunder in not to exceed twenty annual installments. ,,4 Reimbursement is made through an operation and maintenance assessment, in which the funds are used for "[a]nnual operation and maintenance of the Wapato Unit of the Yakima Irrigation Project," and are payable "under such rules and .regulations as the Secretary... may from time to time prescribe. "s With respect to trustlands, the fight to obtain irrigation water is governed by Lease Agreements that Indians entered into with the Secretary. The parties' dispute concerns a number of events that occurred in 1994. First, plaintiffs failed to fully pay their operation and maintenance assessments prior to .the 1994 irrigation season. The record provides that plaintiffs made partial payments on April 29, 1994, and June 23, 1994. Second, the Reservation experienced One of the worst droughts on record, resulting in drastic reduction in the amount of water available for irrigation. In fact, on May 18, 1994, the United States Bureau of Reeiamafion (BOR) notified all Yaldma dist6.ct m.a.nagers, 2 ~ Complaint '1 12. ld.

Defendant's Motion To Dismiss Or, In The Alternative, For Summary Judgment (Def.'s Mot.), Appendix (App.) at 13, *[ 2. Id. at 14, ~[~[ 7-8.

A004
A16

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including the manager of WIP, that each district would receive 35% of proratable storage water that it was entitled to for the 1994 season. On June 8, 1994, BOR notified district managers that water supply conditions deteriorated, and consequently, only 34 % of the proratable water entitlements would be available to each district? In order to cope with the drought conditions, WIP adopted a diversion plan, as welI as a water distribution plan, for the 1994 season. The purpose of the water distribution plan was to "ensure an equitable distribution of the available water to each major lateral and subdivision of the project."7 Plaintiffs admit they received their proportionate share of water until Iune 9, 1994. According to plaintiffs, from June 10, 1994, until July 24, 1994, there was insufficient water in the canals servicing the land they farmed to permit irrigation. Plaintiffs maintain that other farmers, whose lands are located further up the canal~ received sufficient irrigation water? Plaintiffs contend that in 1une 1994 they met with A. C. Oberly, WIP's Administrator, and complained that the lands they fan-ned were not receiving adequate irrigation water for their crops.9 In addition, plaintiffs posit that at this meeting they "agreed to sign a promissory note for the balance of the. money due on the [operation and maintenance] assessments for the 1994 season," and that "Mr. Oberly agreed to draw up the note for signature by the plaintiffs."1° Plaintiffs filed an Amended Complaint on April 21, 1998, asserting defendant breached the terms of both the Application for Water Right and leases by faillng to provide them with their proportionate share of irrigation, water. According to plaintiffs, these breaches resulted in the loss of production in the commercial crops grown on the land they farmed. Plaintiffs also maintain they were forcedto incur additional expenses in an attempt to obtain water for irrigation. Plaintiffs claim this breach caused them to suffer a substantial loss of their crops. On September !0, 1998, defendant fried its Motion To Dismiss, Or In The Alternative, For Summary Judgment, asserting: (1) the court lacked jurisdiction to adjudicate plaintiffs' claims because plaintiffs lack privity of contract with the government; and (2) if the court finds it has jurisdiction, plaintiffs failed 6 7 g See Oberly Affidavit (Aft.), ~[~[ 3 & 6, Def.'s Mot., App. at 177. Id. A. Dean Oswalt Aff.~[ 7; Def.'s Mot., App. at 301.

9 Craig Oswalt Aft., Plaintiffs' Reply Memorandum In Support Of Motion For Summary Iudgment (Pls.' Reply Mem.), Exhibit (Ex.) C, at 1. 10 Pls.' Reply Mem. at 3.

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to exhaust their administrative remedies before f'fling suit in this court. On ~'une 4, 1999, the court held a telephonic conference with the parties concerning the merits of the case. In an order issued that same say, the court ordered plaintiffs to file additional evidence relating to the issue of privity of contract. Oral argument was held on November 30, 1999, and on December 2, 1999, the court ordered the parties to: (1) conduct further jurisdictional discovery and provide., the court with additional information concerning privity of contract; and (2) subnit supplemental briefs addressing the derivative rights issue raised during oral argument and whether the right to receive irrigation water runs with the land under Washington state law. The parties filed documents in response to the court's December 2, 1999 order on February 1, 2000. Discussion
I. Motion to Dismiss

Defendant has fried a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(19)(1). In ruling on such a motion, the court must accept as true the complaint'.s undisputed factual allegations and construe them in a light most favorable to the plaintiff. Scheuer v. Pdtodes, 416 U.S. 232, 236 (1974); Hamlet ~. United States, 873 F.2d 1414, 1415 (Fed. Cir. 1989); Farmers Grain Co. v. United States, 29 Fed. C1. 684, 686 (1993). "When the defendant questions this Court's subject matter jurisdiction with a motion pursuant to RCFC 12(b)(1), the burden is on the plaintiff to establish jurisdiction by a preponderance of the evidence." First Hartford Corp. Pension Plan & Trust ~. United States, 42 Fed. CI. 599, 603 (1998) (citing Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). Moreover, "conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss." Kentucky Bridge & Dam, Inc. v. United States, 42 Fed. C1. 501,516 (1998): If the undisputed facts reveal any possible basis on which the non-moving party may prevail, the court must deny the motion. Scheuer, 416U.S. at 236; W.R.. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed. Cir. I988). if the motion chaiienges the trath of the jurisdictional facts alleged in the complaint, however, the court may consider relevant evidence in order to resolvethe factual dispute. Rocoviclt v. United States, 933 F.2d 991,994 (Fed. Cir~ 1991). "The court should 'look beyond the pleadings and decide for itself those facts, even if in dispute, which are necessary for a determination of [the] jurisdictional merits.'" Farmers Grain, 29 Fed. C1. at 686 (citing Raymark, 15 C1. Ct. at 335). This court's authority to grant relief is dependent upon the extent to which the United States has waived its sovereign immunity and consented to be sued.

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United States v. Test.an, 424 U.S.. 392, 399 (1976). "The government consents to be sued only by those with whom it has privity of contract .... " Erikson Air Crane Co. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984). Indeed, privity of contract is "an indispensable prerequisite to the maintenance of a suit in this court against the government under the Tucker Act." Thomas Funding Corp. v. United States, 15 C1. Ct. 495,499 (1988); see also National Leasehold Housing A~so¢. v. United States, 105 F.3d 1423, 1435 (Fed. Cir. 1997) ("privity. of contract... [is] an undisputed prerequisite for standing to sue in the Court of Federal Claims under the Tucker Act"). Therefore, absent a showing of either privity of contract, or a demonstration of an exception to the privity requirement, such as third,party beneficiary status, no jurisdiction exists to pursue a contract claim in this court. Maniere v, United States, 31 Fed. C1. 4i0, 415 (1994). Defendant maintains this court lacks jurisdiction to entertain plaintiffs' requested relief with regard to all fee lands and trust lands. With respect to fee lands, defendant asserts plaintiffs are not in privity of contract with the United States because they were not signatories to the Application for Water Right documents.11 For the trust lands in which plaintiffs did not enter leases with defendant,12 defendant contends thiscourt lacks jurisdiction because plaintiffs: (1) were not signatories to the leases; .(2) did not obtain the Secretary's permission to sublease those lands; and (3) have not put forth evidence demonstrating they are assignees to the leases. For the seven trust lands in which plaintiffs did sign leases with defendant, defendant argues it is not contractually bound by those leases

11 12

The fee lands at issue are allotments 299, 300, 596, 766 and 794. Plaintiffs did not enter leases with defendant for the following Trust ~se # 1-7078 1-7098 1-7099 1-7190 1-8514 1-8554 1-8511 1-6310 1-7587 1-8087 Allotment # 848, 849 850 289 T-290 1752 T-1131.5B T-2661A T-2482, 2482 1013A 263, T-263
.Lessee

Lands:

Char!es Lewis Charles Lewis Charles Lew~s Charles Lewis Charles Lewis Charles Lewis Charles Lewis Charles Lewis Charles Lew~s SKD .Farms

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because it was acting on behalf of the Indians. Defendant' s assertion that plaintiffs must be signatories to establish privity of contract is an improper characterization of the law. There is no requirement that plaintiffs must be signatories to a contract to establish pfivity. Bluebonnet Savings Bank, FSB ~. United States, 43 Fed. CI. 69, 74 (1999). Rather, plaintiffs need only beaparty to the contract, ld.; Castle v. United States, 42 Fed. C1. 859, 865 (1999) (finding privity despite the fact that plaintiffs were not signatories to an agreement in which they were named). Plaintiffs, therefore, must establish they are parties to a contract with defendant or that defendant has a contractual obligation. With respect, to the fee lands, the determination of whether plaintiffs are parties to a contract with defendant requires an examination of the language of the Application for Water Right documents. This issue presents the court with a question of contract interpretation, upon which the court may rule as a matter of law. National Rural Utils. Co-op Nn. Corp. ~. United States, 14 C1. Ct. 130 (1988), aft'd, 867 F.2d 1393 (Fed. Cir. 1989). Contract interpretation ordinarily begins with "the plain meaning of the provision in question." S.W. Aircraft Inc. v. United States, 213 Ct. CI. 206, 212 (1977), which the court.must construe by its plain and unambiguous language. National Rural, 14 C1. Ct. at 136. "IT]he language of a contract must be given that meaning that would be derived from the contract by a reasonably intelligent person acquainted with the contemporaneous circumstances." tlol-Gar Mfg. Corp. v. United States, 169 Ct. C1. 384, 388 (1965). A court must give reasonable meaning to all parts of the contract "so as to harmonize.and give meaning to all its provisions," and not render portions of the contract meaningless. Thanet orp. v. United States, 219 Ct. C1. 75, 82 (1979); see also Fortec Constructors ~. United States, 760 F.2d 1288, 1292 (Fed. Cir.
13

Plaintiffs entered teases with defendant for the following Trust
Lease #

Lands: 1-7614 1-7022 1-7023 1-7287 1-8705 1-8120 1-7859 1988 363 3694 T-1011 3704 & 3705 2303 & T-2303 361 Dean Oswalt Dean Oswalt Dean Oswalt Kirk Oswalt Craig Oswalt Craig Oswalt Dean Oswalt

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1985). Furthermore, "an interpretation which gives a reasonable meaning to all parts will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless, superfluous, or achieves a weird and whimsical result." Arizona v. United States, 216 Ct. C1. 221,235-36 (1978). The Application for Water Right documents were entered by the Secretary and the original owner of the particular parcel of fee land. These documents provide evidence of the parties' intentions at the time of contracting. An examination of these documents reveal that plaintiffs are neither signatories to the contracts nor owners of the fee lands.
With respect to irrigation water, the documents provide:

9. It is understood and agreed by and between the parties hereto that when all irrigation charges against the lands described herein have been paid, the party of the ftrst part will issue, or cause to be issued . a water-right certificate, or other suitable evidence of the fact that such land has a perpetual water right attached thereto.l~ It is clear, therefore, that the right to irrigation water runs with the land. Regarding the payment of operation and maintenance assessments, the Application for Water Right documents bind the original owner, "his heirs and assigns to pay all charges for water specified herein, whenever the same shall become due and payable, under such rules and regulations as the Secretary of the Interior may from time to time prescribe."~s Construing these provisions together, it is clear that the parties did not intend the right to irrigation water, as well as the obligation to pay operation and maintenance assessments, be limited solely to signatories. Conversely, defendant obliged itself to deliver irrigation water perpetually to the owner, his heirs or assigns., in exchange for payment of operation and maintenance assessments. Defendant, therefore, expressed an intent to be contractually bound with that class of individuals. Accordingly, in order to establish privity of contract, plaintiffs need only prove they are owners, heirs or assigns of the property. See Cogge.~he~dDev. Co.~.. vo United States, 23 C1. Ct. 739, 742 (1991) (finding privity of contract between the United States and successors-in-title where rights and obligations expressed in a deed applied to the originai parties and their
successors).

14 15

Def.' s Mot., App. at 11, *[ 9 (emphasis added). /d. at 21.

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10

Plaintiffs have provided the court with a statutory warranty deed from Maude Peterson to plaintiff A. Dean Oswalt proving he owns Lot "/94 of the fee lands.16 Plaintiffs have not, however, demonstrated that they are owners of the other four fee lands or that they are heirs to the original owner, or assignees of the Application for Water Right. In an attempt to establish contractual pfivity for these lands, plaintiffs direct the court to the declaration of Benjamin Domondon,17 an accountant for WIP, and with a WIP spreadsheet that lists plaintiffs as lessees. Plaintiffs also submitted copies of their FTCA claims before BIA, BIA's denial of their claims, and subleases they entered with Charles Lewis. The fact that plaintiffs fried a FTCA claim arising out of their use of these properties does not establish privity of contract. In addition, it is unclear whether plaintiffs entered subleases with the owners of the fee lands in dispute. Plaintiffs have not provided any additional evidence on these fee lands despite the court' s order dated December 2, 1999, requesting such information,is Since plaintiffs have provided evidence proving ownership of only one of the fee lands, this court lacks jurisdiction to hear plaintiffs' claims in regards to the other four fee lands.

Plaintiffs' Supplemental Memorandum Regarding Water Rights Issues (Pls.' Supp.), App., Ex. D.
v See Def.'s Mot. App. at 5-8. Mr. Domondon testified to the Oswalts' late payments and the preparation of a promissory note. Besides submitting the statutory warranty deed from Peterson to Oswalt, plaintiffs included six other documents with their supplemental memorandum filed in response to the court's December 2, 1999 order. Three of the remaining documents are letters to the Secretary from the Commissioner of Indian Affairs discussing perpetual water fights for the lands included in the Yakima Irrigation Project. (Pls.' Supp., App. Exhibits A-C.) These letters are' irrelevant for establishing cofltmctual pfivity because they only suggest that, if there is "-"'-au-,~,~6,~ ,.,., water ............ land. Exhibit E is a quit claim deed from Mike Zecchino to Leonard M. Zecchino, and Exhibit F is a statutory warranty deed from Robert L. Lane and Gerry M. Lane to Martin K. Childers and Patricia A. Childers. These two deeds are irrelevant because they do not specify whether plaintiffs have any interest in these lands either as owners, lessees, or sub-lessees. Finally, Exhibit G contains maps of the Yaldma Indian Reservation. These maps are not helpful to the issue of contractual pfivity because they simply set forth various allotments and do not show which lands plaintiffs own or lease. Moreover, it is not clear when these maps were made and to which fee and trust lands they display.

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With respect to the trust lands, the administrative record provides plaintiffs entered seven separate leases with defendant. Plaintiffs, therefore, are in privity of contract with defendant for these seven trust lands and the court has jurisdiction to hear plaintiffs' breach of contract claim as it relates to these properties. These lands ineludelots 1988, 363, 3694, T-1011, 3704 and 3705, 2303 andT-2303, and 361.t9 Defendant argues that United States v. Algoma, 305 IJ.S. 415 (1939) provides controlling precedent in this case. Algoma held that when a government official enters a contract on behalf of another, the contract does not create any. direct obligation on the government. Id. at 421. Defendant contends the Secretary entered the lease agreements for the seven trust lands on behalf of Indians, and thus it has no obligation to plaintiffs in this case. The Algoma case involved the sale of timber from allotted lands (lands owned by individuals) and unallotted lands (lands held in trust by the Secretary for the benefit of Indians) located within the Klamath Indian Reservation. Id. at 417. Pursuant to statute, owners of ali0tted land were permitted, with consent of the Secretary, to sell timber located on their property, ld. Similarly, the Secretary. was permitted to sell timber located on unallotted lands, but was required to use the proceeds for the benefit of the Indians. Id. Timber upon these lands was offered for sale. Id. at 419. The Secretary accepted Algoma's bid and both Algoma and the Secretary executed a contract of sale. Id. In addition, Algoma entered into separate contracts with twenty-one individuals for the sale of timber, which the Secretary approx~ed. After purchasing the timber, Algoma fried suit against defendant in the United States Court of Claims, alleging it had overpaid defendant and seeking a refund, ld. at 418. The Court of Claims found the United States was a party to the contracts with the twenty~one individuals and that Algoma had overpaid, and thus awarded Algoma compensation. Id. The Supreme Court reversed, finding that nocontract.existed between the United States and Algoma. Id. at 421. First, the court examined the language of the contracts and determined that neither the Secre~,'y .,,.or ~n.y of its officers were named parties. Id. Significantly, the court recognized that the Secretary and other.Department officials merely acted on behalf of the Klamath Indians by supervising the execution of the contracts, which was consistent with their role as protector of the Indians. Id. The Court held that in performing this role, the Secretary neither expressly nor impliedly assumed any There are seven leases addressed here, but some of these leases include more than one allotment. This is why there are nine lot numbers listed even though the court refers to these lands as "seven trust lands."

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ob~gafion m Algoma.

The Algoma case is factually distinguishable from the present case because, unlike Algoma, defendant, who operates WIP, undertook an obligation to deliver water to the lands at issue. Although the leases do not use the term "perpetual right to water," the court can ascertain the parties' intent from the four corners of those documents. First, all the lease agreements suggest the Iessee would use the property for the purpose of growing crops by utilizing irrigation water. The leases require the lessee to pay annual operation and maintenance assessments which are used by BIA for upkeep of the irrigation system.~° Additionally, the leases require the lessee to "make beneficial use of water delivered through the irrigation project."~1 When reading these provisions together, it is clear .the Secretary undertook an obligation to deliver irrigation water in exchange for payment of operation and maintenance assessments. Defendant's argument based on Algoma is unpersuasive. For the remaining ten trust lands, an examination of the administrative record reveals plaintiffs are not lessees to these properties with defendant. Rather, plaintiffs are sublessees because they are leasing the lands from third persons, who in turn are leasing the land from defendant. Each Lease Agreement explicitly restricts the lessee's right to sublease his leasehold:
6. SUBLEASES AND ASSIGNMENTS -- Unless otherwise provided herein, a subIease, assignment or amendment of this lease may be made only with the approval of the Secretary and the written consent of all parties to this lease, including the surety or sureties.:2

Plaintiffs have not demonstrated they received permission from the Secretary to sublease the properties in issue. Similarly, there is no evidence to suggest plaintiffs were assignees to the Lease Agreements. Additionally, the fact that Martin Childers, Leonard Zecchino and AP F.m. _,-ms received bills for operation and maintenance assessments for certain

Def.'s Mot., App. at 45, ~1 3. ld. at 47, ~I 9(c). Def.'s Mot., App. at 32, ~[ 6. See also 25 U.S.C. § 415(a) (1994) (stating that "restricted Indian lands.., may be leased by the Indian owners, with the approval of the Secretary of the Interior .... "); 25 C.F.R. § 162.5(a).

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properties that plaintiffs farmed suggests plaintiffs were not assignees to the leases of those lands. Moreover, if plaintiffs are assignees to the leases, they would have to comply with the Assignment of Contracts Act, or demonstrate that defendant's conduct constituted a waiver of those rights. Plaintiffs have not provided any information proving compliance or a waiver by defendant. Based upon the facts presented, plaintiffs have failed to meet their burden of establishing that they are in privity of contract with defendant for the remaining ten trust lands. II. Motion for Summary Judgment~ Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247 (1986); Jay v. Secretary, DHHS, 998 F.2d 979 (Fed. Cir. 1993). A fact is materiaI ff it might significantly affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. The fact that both parties have moved for summary judgment does not relieve the court of its responsibility to determine the appropriateness of summary disposition. Prinevitle Sawmill Co. v. United States, 859 F.2d 905,911 (Fed. Cir. 1988) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987)). A cross-motion is a party's claim that it alone is entitled to summary judgment. A Olympic Forwarder, Inc. v. United States, 33 Fed. C1. 514, 518 (1995). It does not follow that if one motion is rejected, the other is necessarily supported. Id. Rather, the court must evaluate each party's motion on its own merit and resolve all reasonable inferences against the party whose motion is under consideration. Id. (citing orman v. United States, 26 C1. Ct. 1011, 1014 (1992)). As stated above, this court has jurisdiction to hear plaintiffs' claims in respect to one fee land and seven trust lands. Defendant argues in the alternative that, if this court has jurisdiction, plaintiffs have failed to state a claim upon which relief can be granted because they have failed to exhaust administrative remedies. In particular, the leases incorporate by reference regulations that require plaintiffs to file complaints before the Project Manager of WIP. Plaintiffs maintain it would be futile to file a claim with the Project Manager because that claim would certainly be denied.

Because defendant relies upon facts beyond plaintiffs' complaint to support its motion to dismiss for failure to state a claim upon which relief can be granted (RCFC 12(b)(4)), defendant's motion to dismiss for failure to state a claim is treated in conjunction with its motion for summary judgment. See RCFC 12(b).

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The exhaustion doctrine provides that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Meyers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938); McKart v. United States, 395 U.S. 185, 193 (1969). In cases where a litigant seeks judicial relief before the administrative process is complete, courts commonly apply the exhaustion doctrine to avoid premature interruption of the administrative process. McKart, 395 U.S. at 193. "This court has determined that administrative remedies are not considered to be exhausted until 'a claim is fried, a decision made, and the agency appellate process, at the least, begun.'" Lewis v. United States, 32 Fed. C1. 59, 64 (1994) (quoting Mayne ~,. United States, 13 C1. Ct. 60, 65 (1987)). The exhaustion doctrine "allow[s] an administrative agency to perform functions within its special competence -- to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies." Parisi v. 1)avidson, 405 U.S. 34, 37 (1972) (citations omitted). "The exhaustion doctrine is not, strictly speaking, a matter of jurisdiction." San Carlos Irrigation & Drainage District v. United States, 111 F.3d 1557, 1565 (Fed. Cir. 1997) (quoting Allied-General Nuclear Services v. United States, 839 F.2d 1572, 1575 (Fed. Cir. 1988)), Despite justifications for the exhaustion doctrine, courts have also created several exceptions." First, "[u]nless made a prerequisite to suit by statute, binding regulation or contract, the extent to which a plaintiff is required to pursue his administrative remedy is a matter for the discretion of the court." San Carlos, 111 F.3d at 1564 (quoting Neeley v. United States, 152 Ct. C1. 137, 145-46 (1961)); see also Sandvik Steel Co. v. United States, 164 F.3d 596, 600 (Fed. Cir. 1998) ("'where Congress specifically mandates, exhaustion is required,' even 'where Congress has not clearly required exhaustion, sound judicial discretion governs'") (quoting McCarthy ~. Magidan, 503 U.S. 140, 145 (1992)). In addition, "if the aggrieved party's action sets forth a constitutional issue, or alleges that the agency acted outside its authority, or establishes that administrative processes would be futile then the aggrieved party may be permitted to obtain judicial review without first seeking administrative review." Lewis; 32 Fed. C1. at 65 (quoting Mayne v. United States, 13 C1. Ct 60, 65 (1987)).
As owner of Lot 794 and as lessees to the seven trust lands, plaintiffs were obligated to pay operation and maintenance assessments for the irrigation water. The leases for the trust lands provide:

3. OPERATION AND MAINTENANCE ASSESSMENTS - It is understood and agreed that the lessee will pay all operation and maintenance assessments annually in advance on the due date preceding each irrigation season, including any penalties accruing against

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the above-described land under irrigation, and willpay all charges assessed in connection with any other improvement project or district within which the lands may be located, pursuant to the existing or future orders or regulations of the Secretary.24 The regulations referenced in the leases are found in .Part 171 of Title 25 of the Code of Federal Regulations. As mentioned, this part includes provisions that deal with the distribution and apportionment of irrigation water, the levying of operation and maintenance assessments, and payment of those assessments. Because these regulations deal with the same subject matter .and fall under the definition of "existing or future.., regulations," the court finds that Part 171 is incorporated by reference into the leases and is also applicable to Lot 794 of the fee lands. Section 171.22, which is found in Part 171, provides a mechanism for property owners to contest.matters concerning WIP's delivery of irrigation water. Specifically, this section states that "[a]llcomplaints must be made in writing to the Project Engineer or the Officer-in-Charge of the project." 25 C.F.R. § 171.22. Although this section does not explicitly mandate the filing of a complaint prior to filing suit in the Court of Federal Claims, it nevertheless requires complaints to be fried with the Project Engineer or Officer-in-Charge of the project. Id. A search of case law reveals there are no cases in this court or any other jurisdiction that analyze these regulations. This court concludes, however, that Section 171.22 dictates the exhaustion of administrative remedies in the present case. Contrary to plaintiffs' assertion, requiting them to fde a complaint before the Project Engineer or Officer-in-Charge of the project would not be futile. As plaintiffs contend, the heart of their complaint is that defendant failed to "equitably distribute the amount of water that was actually present for distribution."zs The Secretary is mandated by statute and regulation to equitably distribute irrigation water. Given the testimony in the record concerning the complexity behind the equitable distribution of water, and the fact that the events in dispute occurred during a drought, it is clear BIA would have expertise in ascertaining what constitutes a land user's proportionate share of irrigation water. Moreover, the fact that plaintiffs filed a claim under the FTCA before BIA concerning the same operative facts does not change the court's determination. Plaintiffs' previous

See Def.'s Mot., App. at 32, ~1 3. Plaintiffs' Cross Motion For Summary Judgment And Memorandum In Support Thereof And In Opposition To Defendant's Motions at 9.

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claim was premised on a negligence theory, in contrast to this case where they assert a breach of contract. This issue has not been raised before BIA, and the court would certainly benefit from a determination by this agency. Conclusion
For the above-mentioned reasons, Defendant's Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment is DENIED concerning Lot 794 of the fee lands and Lots 1988, 363, 3694, T-1011, 3704 and 3705, 2303 and T2303, and 361 of the trust lands. Plaintiffs' cross:motion for summary judgment is also DENIED. Defendant's motion to dismiss is GRANTED regarding the remaining fee and trust lands because this court lacks jurisdiction. Pursuant to RCFC 54(b), as there is no just reason for delay, the Clerk is directed to dismiss plaintiffs' claims relating to the remaining fee and trust lands.26

Moreover, since plaintiffs have failed to exhaust administrative remedies the proceedings in this court are hereby STAYED concerning plaintiffs' claims for Lot 794 of the fee lands and Lots 1988, 363, 3694, T-1011, 3704 and 3705, 2303 and T-2303 and 361 of the trust lands pending review by BIA on plaintiffs' contract claim. Plaintiffs' are advised to file said claim with their Project Engineer or Officer-in-Charge of the project. The parties shall file a report with the Court once the decision by the Project Engineer or Officer-in-Charge has been issued. This report is due within thirty days of the decision.
IT IS SO ORDERED.

Judge

The remaining fee lands are Lots 299, 300, 596 and 766. The remaining trust lands are Lots 848 and 849, 850, 289, T-290, 1752, T-1131.5B, T-2661A, T-2482 and 2482, 1013A, and 263 and T-263.

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41 Fed.Appx. 471 41 Fed.Appx. 471, 2002 WL 1499753 (C.A.Fed.) (Cite as: 41 Fed.Appx. 471, 2002 WL 1499753 (C.A.Fed.))

Page l

Oswalt v. U.S. C.A.Fed.,2002. This case was not selected for publication in the Federal Reporter.NOTE: Pursuant to Fed.Cir.R. 47.6, this order is not citable as precedent. It is public record.Please use FIND to look at the applicable circuit court rule before citing this opinion. Federal Circuit Rule 47.6. (FIND CTAF Rule 47.6.) United States Court of Appeals,Federal Circuit. A. Dean OSWALT, Reinie Oswalt, Craig Oswalt, Michelle Oswalt, Kirk Oswalt, and Stacie Oswalt, Plaintiffs-Appellants,
V.

UNITED STATES, Defendant-Appellee. No. 01-5037. July 12, 2002.

170A Federal Civil Procedure 170AXVII Judgment 170AXVII(C) Summary Judgment 170AXVII(C)3 Proceedings 170Ak2533 Motion 170Ak2533.1 k. In General. Most Cited Cases Issue of whether landowners had privity of contract with United States was intertwined with merits of their claim against United States under Tucker Act for breach of agreement for delivery of irrigation water, and thus district court should have converted government's motion to dismiss for lack of subject matter jurisdiction into motion for failure to state claim or motion for summary judgment. 28 U.S.C.A. § 1491(a)(1); RCFC, Rules 12(b)(l, 4), 56, 28 U.S.C.A.
[21 Waters and Water Courses 405 ~==a254

Claimants sought review of order of the United States Court of Federal Claims granting United States' motion to dismiss certain of their claims for lack of jurisdiction, and staying proceedings as to remainder. The Court of Appeals held that: (1) district court should have converted government's motion to dismiss for lack of subject matter jurisdiction into motion for failure to state claim or motion for summary judgment, and (2) claimants failed to establish valid contract with United States.
Affirmed, and remanded.

West Headnotes [1] Federal Civil Procedure 170A ~==~1825 170A Federal Civil Procedure 170AXI Dismissal 170AXI(B) Involuntary Dismissal 170AXI(B)5 Proceedings 170Ak1825 k. Motion and Proceedings Thereon. Most Cited Cases Federal Civil Procedure 170A ~===~2533.1

405 Waters and Water Courses 405IX Public Water Supply 405IX(B) Irrigation and Other Agricultural Purposes 405k254 k. Sale of Water and Supply and Use for Irrigation. Most Cited Cases Sublessees' payment or agreement to pay water assessments on Indian trust lands did not constitute express or implied contract with United States for delivery of irrigation water, and thus sublessees could not bring suit against United States under Tucker Act for breach of contract, absent showing that Secretary of Interior had approved sublease. 28 U.S.C.A. § 1491(a)(1); 25 C.F.R. §§ 171.14, 171.17(b). "471 Before NEWMAN, Circuit Judge, ARCHER, Senior Circuit Judge, and LINN, Circuit Judge. PER CURIAM. **1 A. Dean Oswalt, Reinie Oswalt, Craig Oswalt, Michelle Oswalt, Kirk Oswalt, and Stacie Oswalt (the "Oswalts") seek review of the order of the . United States Court of Federa! Claims granting the

© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Case 1:97-cv-00733-BAF

Document 131-2

Filed 06/26/2008

Page 30 of 50

41 Fed.Appx. 471 41 Fed.Appx. 471, 2002 WL 1499753 (C.A.Fed.) (Cite as: 41 Fed.Appx. 471, 2002 WL 1499753 (C.A.Fed.))

Page 2

United States' motion to dismiss certain of their ~472 claims for lack of jurisdiction,vm and staying proceedings as to the remainder. Oswalt v. United States, No. 97-733C, slip op. (Ct.Cl. Oct. 17, 2000). We affirm the judgment of dismissal on other grounds, and remand the Oswalts' remaining claims. FNI. Relating to Lots 299, 300, 596, 766, 848, 849, 850, 289, T-290, 1752, T1131.5B, T-2661A, T-2482, 2482, 1013A, 263 and T-263. A party seeking the exercise of jurisdiction under the Tucker Act has the burden of establishing that such jurisdiction exists. Trauma Serv. Group v. United States, t04 F.3d 1321, 1324 (Fed.Cir.1997). A well-pleaded allegation in the complaint is generally sufficient to overcome challenges to subject matter jurisdiction. Id. (citing Do-Well Mach. Shop, Inc. v. United States, 870 F.2d 637, 639-40 (Fed.Cir.1989) ("Jurisdiction, therefore, is not defeated ... by the possibility that the averments might fail to state a cause of action on which petitioners could recover.")); see also Total Med Mgmt. v. United States, 104 F.3d 1314, 1319 (Fed.Cir.1997). However, either a party under RCFC 12(b)(l), or the court on its own motion, may move beyond the complaint to seek a determination of disputed jurisdictional facts. See Hamlet v. United States, 873 F.2d 1414, 1415-!6 (Fed.Cir.1989) (considering RUSCC 12(b)(l), predecessor to RCFC 12(b)(1), and similar to Fed.R.Civ.P. 12(b)(l)). In such a circumstance, the court may seek the presentation of affidavits or other evidence, and may order additional discovery and a hearing on jurisdictional issues. See5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, at 237 (2d ed. 1990). Where the resolution of the jurisdictional issue is intertwined with the merits of the case, the decision on jurisdiction should "await a determination of the merits either by the court on a summary judgment motion or by the fact finder at trial." ld. at 235-38.

Thus, in Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 203 n. 19, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974), the Supreme Court stated that if there was "an identity between the 'jurisdictional' issues and certain issues on the merits," then "under Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947), [there would be] no objection to reserving the jurisdictional issues until a hearing on the merits ... [or] to the use, in appropriate cases, of summary judgment procedure to determine whether there is a genuine issue of material fact ...". See also Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir.2000) (holding that, because the jurisdictional issues were intertwined with the merits, the district court should have decided the case on summary judgment rather than on a factually-based 12(b)(1) motion to dismiss). We also have recognized this principle. See Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 688-89 & n. 12 (Fed.Cir.1992); cf Lewis v. United States, 70 F.3d 597, 603 (Fed.Cir.1995) (holding that Court of Federal Claims should have treated the dismissal of complaint as a dismissal on the merits rather than on iurisdictional grounds). ~2 [1] We therefore hold that the Court of Federal Claims erred in dismissing the Oswalts' claims for lack of jurisdiction rather than on their merits. Jurisdiction in the .Court of Federal Claims is supplied by the Tucker Act, which limits jurisdiction to "any claim against the United States founded ... upon any express or im