Feb 17: In the U.S. Court of Appeals, Federal Circuit, Case No. 2007-5115. Appealed from the United States Court of Federal Claims. Plaintiffs-Appellants (plaintiffs) are fourteen water, drainage, and irrigation districts and thirteen agricultural landowners in Oregon and California. Plaintiffs appeal the final judgment of the United States Court of Federal Claims that, based on two separate summary judgment decisions, dismissed their Fifth Amendment takings claims, their claims under the Klamath River Basin Compact, Pub. L. No. 85-222, 71 Stat. 497 (1957) (the Klamath Basin Compact or the Compact), and their breach of contract claims. See Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504 (2005) (Takings Decision); Klamath Irrigation Dist. v. United States, 75 Fed. Cl. 677 (2007) (Contract Decision).
On July 16, 2008, the Appeals Court certified three questions relating to the takings and Compact claims to the Oregon Supreme Court. See Klamath Irrigation Dist. v. United States, 532 F.3d 1376 (Fed. Cir. 2008) (Certification Order). The certification was pursuant to a procedure whereby unsettled questions of state law may be certified to the Oregon Supreme Court. See Or. Rev. Stat. §§ 28.200-28.255 (2010). Pending action by the Oregon court, the Appeals Court withheld decision on all of plaintiffs' claims. The Oregon Supreme Court accepted the case for certification, Klamath Irrigation Dist. v. United States, 202 P.3d 159 (Or. 2009), and on March 11, 2010, the court rendered its decision, answering the certified questions of the Appeals Court. See Klamath Irrigation Dist. v. United States, 348 Or. 15, 227 P.3d 1145 (Or. 2010) (en banc) (Certification Decision).
Now, the Appeals Court has vacated the judgment of the Court of Federal Claims and remand the case to the court for further proceedings. The Appeals Court said, "On remand, the court is to (1) consider the takings and Compact claims in light of the Certification Decision; (2) determine whether, as far as the breach of contract claims are concerned, the government can establish that, for purposes of its defense based on the sovereign acts doctrine, contract performance was impossible; and (3) decide the breach of contract claims as appropriate." The Appeals Court said further in its conclusion, "If the court determines that the government is liable for takings or for breach of contract, or both, it will be necessary for it to address the question of damages. Needless to say, we express no views on whatever issues may arise in the setting of a damages determination."
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