ELR Citation: ELR 20564
No(s). s. 87-2681 et al (9th Cir. Mar 14, 1990)

The court holds that application of §203(b) of the Reclamation Reform Act of 1982 (RRA) to existing water contracts does not violate the Due Process Clause and the Taking Clause of the Fifth Amendment. Each of the water districts entered into a long-term contract in the past 30 years with the Department of the Interior, Bureau of Reclamation, to receive water from two vast systems of federally owned and operated reservoirs, dams, and canals. The water districts maintained that as a result of the water contracts, they have a protected property interest in the delivery of subsidized water to leased tracts of any size, and that §203(b) violates this right by restricting the size of the leased tracts that can receive water. Because the contracts do not vest in the water districts a property right to deliver water to a farm of any size, the court holds that §203(b)'s restrictions on the size of the farm to which the districts can deliver water do not effect a Fifth Amendment taking and do not violate their rights under the Due Process Clause. Congress has the power to amend legislation without expressly reserving that right. Vested rights do not adhere against the United States based on implied contractual provisions, especially where they contravene the express intent of legislation. Instead, federal power must be waived in clear, unmistakeable terms. Investment-backed expectations alone do not constitute a property interest that can be taken under the Fifth Amendment. Section 203(b) is rationally related to legitimate government purposes; promotion of small farming operations, equitable distribution of water under modern farming conditions, and water conservation. As such, it is not arbitrary and irrational so as to violate the Due Process Clause, but simply requires the water districts to choose between conforming with previous federal water policy or conforming with the RRA's 960-acre limitation.

Counsel for Plaintiffs-Appellees
Thomas W. Buirmingham
Kronick, Moskovitz, Tiedemann & Girard
770 L St., 12th Fl., Sacramento CA 95814
(916) 444-8920

Counsel for Defendants-Appellees
Robert L. Klarquist
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2731

Norris (before Noonan and Leavy, JJ. )