Minidoka Irrigation v. Department of the Interior

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MINIDOKA IRRIGATION DISTRICT,  No. 03-35697
Plaintiff-Appellant, D.C. No.
v. CV-91-00529-BLW
DEPARTMENT OF INTERIOR, of the ORDER
United States; GALE A. NORTON, AMENDING
Secretary of the Interior; JOHN W.  OPINION AND
KEYS, III, Commissioner of DENYING
Reclamation; J. WILLIAM PETITION FOR
MCDONALD,* Regional Director of REHEARING
Reclamation, EN BANC AND
Defendants-Appellees. AMENDED
 OPINION

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding

Argued and Submitted
February 16, 2005—Seattle, Washington

Filed April 15, 2005
Amended July 6, 2005

Before: Betty B. Fletcher, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.

*Pursuant to Fed. R. App. P. 43(c)(2), Gale A. Norton is substituted for
her predecessor, Manuel Lujan, as Secretary of the Interior; John W. Keys,
III is substituted for his predecessor, Dennis Underwood, as Commis-
sioner of Reclamation; and J. William McDonald is substituted for his pre-
decessor, John W. Keys, III, as Regional Director of Reclamation.

7813
7814 MINIDOKA IRRIGATION DIST. v. DOI
Opinion by Judge Gould
7816 MINIDOKA IRRIGATION DIST. v. DOI

COUNSEL

Beverly J. Singleman, Hubert & Hernandez, P.A., Las Cruces,
New Mexico, for the appellant.

Thomas E. Moss, United States Attorney for the District of
Idaho, and Robert C. Grisham, Assistant United States Attor-
ney, Boise, Idaho, for the appellees.

ORDER

(1) Our opinion filed on April 15, 2005, and published at
406 F.3d 567, is AMENDED as follows:

We revoke the content of Footnote 1 in its entirety and sub-
stitute the following language in its place:

MID also asserted in its briefing on appeal that it has
a vested statutory right to credits under federal recla-
mation law. At oral argument, MID’s counsel con-
ceded that the government’s obligations to MID
under federal reclamation law were the same as its
obligations under the contract and that MID’s statu-
tory claim is subject to the same six-year statute of
limitations as its breach of contract claim. Because
the statutes of limitations on both claims were trig-
 MINIDOKA IRRIGATION DIST. v. DOI 7817
gered by the same event—the government’s
unequivocal repudiation of its obligation to give
MID annual accountings and credits—we treat both
claims as one and dispose of them together under our
analysis of whether the government repudiated the
contract. See Pisciotta v. Teledyne Indus., Inc., 91
F.3d 1326, 1332 (9th Cir. 1996) (holding that the
statute of limitations on employees’ ERISA claim
began running the first time employer violated the
statute by freezing employees’ reimbursement
amounts, notwithstanding employees’ assertion that
their claims were not time-barred under a continuing
violation theory because a new and separate breach
of ERISA arose each time they were entitled to a
reimbursement payment).

(2) Judges McKeown and Gould have voted to deny
Appellant’s Petition for Rehearing En Banc, and Judge B.
Fletcher so recommends.

The full court has been advised of Appellant’s Petition for
Rehearing En Banc and no judge of the court has requested
a vote on the Petition for Rehearing En Banc. Fed. R. App.
P. 35.

The Petition for Rehearing En Banc is DENIED.

No further petitions for rehearing or rehearing en banc will
be accepted.

OPINION

GOULD, Circuit Judge:

The Minidoka Irrigation District (“MID”) sued the federal
government alleging, inter alia, that the government had
7818 MINIDOKA IRRIGATION DIST. v. DOI
breached its contract to credit MID with profits derived from
the operation of the Minidoka Project power plant. On remand
from our Court in Minidoka Irrigation District v. DOI, 154
F.3d 924 (9th Cir. 1998) (“Minidoka I”), the district court
held a bench trial and returned judgment in favor of the gov-
ernment, ruling that MID’s contract claim is barred by the six-
year statute of limitations in 28 U.S.C. § 2401(a). MID
appeals the district court’s judgment for the government,
arguing that: (1) repudiation cannot trigger the statute of limi-
tations on a continuing contract; (2) the government’s repudi-
ation was anticipatory and could not trigger the statute of
limitations; and (3) the district court erred in finding that the
Bureau of Reclamation (“Bureau”) had unequivocally repudi-
ated the contract by March of 1985.1 We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.

I

“The Minidoka Project is an irrigation project constructed
by the [Bureau] under the Reclamation Act of 1902.” Mini-
doka I, 154 F.3d at 925. The Burley Irrigation District
(“Burley”) and MID are the two irrigation districts located in
1
MID also asserted in its briefing on appeal that it has a vested statutory
right to credits under federal reclamation law. At oral argument, MID’s
counsel conceded that the government’s obligations to MID under federal
reclamation law were the same as its obligations under the contract and
that MID’s statutory claim is subject to the same six-year statute of limita-
tions as its breach of contract claim. Because the statutes of limitations on
both claims were triggered by the same event—the government’s unequiv-
ocal repudiation of its obligation to give MID annual accountings and
credits—we treat both claims as one and dispose of them together under
our analysis of whether the government repudiated the contract. See Pisci-
otta v. Teledyne Indus., Inc., 91 F.3d 1326, 1332 (9th Cir. 1996) (holding
that the statute of limitations on employees’ ERISA claim began running
the first time employer violated the statute by freezing employees’ reim-
bursement amounts, notwithstanding employees’ assertion that their
claims were not time-barred under a continuing violation theory because
a new and separate breach of ERISA arose each time they were entitled
to a reimbursement payment).
 MINIDOKA IRRIGATION DIST. v. DOI 7819
the Minidoka Project region. Id. Under Section 4 of the Recla-
mation Act,2 the users of the water from the Minidoka Project
were required to repay the construction costs of the project.
See United States v. Tulare Lake Canal Co., 535 F.2d 1093,
1126 n.127 (9th Cir. 1976) (“Section 4 of the Reclamation
Act of 1902, 32 Stat. 389, 43 U.S.C. § 461, required the Sec-
retary to establish construction charges for individual tracts
[on land irrigated by the irrigation projects] with a view of
returning the entire estimated cost of construction to the recla-
mation fund.”).

The Town Sites and Power Development Act of 1906
granted the Secretary of the Interior (“Secretary”) the discre-
tion to sell power produced by power plants on reclamation
projects in excess of that required for irrigation purposes, and
to lease the power privilege (the right to use the falling water
created by the project dams to produce power). 43 U.S.C. § 522.3
2
Section 4 of the original Reclamation Act of 1902 provides in pertinent
part:
That upon the determination by the Secretary of the Interior that
any irrigation project is practicable, he may cause to be let con-
tracts for the construction of the same, . . . providing the neces-
sary funds for such [construction] are available in the reclamation
fund, and thereupon he shall give public notice of the lands irri-
gable under such project, and limit of area per entry . . . ; also of
the charges which shall be made per acre upon the said entries,
and upon lands in private ownership which may be irrigated by
the waters of the said irrigation project, and the number of annual
installments, not exceeding ten, in which such charges shall be
paid and the time when such payments shall commence. The said
charges shall be determined with a view of returning to the recla-
mation fund the estimated cost of construction of the project, and
shall be apportioned equitably . . . .
Reclamation Act, ch. 1093, § 4, 32 Stat. 389 (1902) (current version as
amended at 43 U.S.C. §§ 419, 461 (2000)).
3
43 U.S.C. § 522 provides in pertinent part that:
Whenever a development of power is necessary for the irrigation
of lands, under any project undertaken under the said reclamation
7820 MINIDOKA IRRIGATION DIST. v. DOI
Any profits derived from such sales or leases would be cred-
ited to the project from which the surplus power or power
privilege was derived. Congress then passed the Warren Act
of 1911, 43 U.S.C. §§ 523-25, authorizing the Secretary to
sell surplus water to non-project irrigators and to contract
with private irrigation companies for water delivery. The Fact
Finders Act of 1924 was later enacted in order to specify the
manner in which profits from such contracts were to be credited.4

Act, or an opportunity is afforded for the development of power
under any such project, the Secretary of the Interior is authorized
to lease for a period not exceeding ten years, giving preference
to municipal purposes, any surplus power or power privilege, and
the moneys derived from such leases shall be covered into the
reclamation fund and be placed to the credit of the project from
which such power is derived . . . .
4
Subsection I of the Fact Finders Act provides in pertinent part that:
Whenever the water users take over the care, operation, and
maintenance of a project, or a division of a project, the total accu-
mulated net profits, as determined by the Secretary, derived from
the operation of project power plants . . . shall be credited to the
construction charge of the project, or a division thereof, and
thereafter the net profits from such sources may be used by the
water users to be credited annually, first, on account of project
construction charge, second, on account of project operation and
maintenance charge, and third, as the water users may direct. No
distribution to individual water users shall be made out of any
such profits before all obligations to the Government shall have
been fully paid.
43 U.S.C. § 501.
Subsection J of the Fact Finders Act provides:
All moneys or profits as determined by the Secretary heretofore
or hereafter derived from the sale or rental of surplus water under
the Warren Act . . . or from the connection of a new project with
an existing project shall be credited to the project or division of
the project to which the construction cost has been charged.
43 U.S.C. § 526.
 MINIDOKA IRRIGATION DIST. v. DOI 7821
MID took over the operation and maintenance of the Mini-
doka Project’s Gravity Unit5 in 1916, leaving the Bureau in
charge of maintaining and operating the rest of the project
works. In 1927, MID and Burley entered into separate agree-
ments with the Bureau to confirm that the Secretary would
determine and announce the profits to be credited to the irri-
gation districts in the manner outlined by the Fact Finders
Act. For decades, the arrangements between the federal gov-
ernment and MID and Burley appear to have operated in a
satisfactory way for all concerned so far as we can glean from
the record.

In 1962, due to steadily declining net profits and rising
operation costs, Burley entered into an amendatory contract
with the Bureau. Under the terms of the contract, Burley gave
up its claim to profits in return for the government’s agree-
ment to relieve Burley from its obligation of repaying con-
struction costs associated with the Minidoka Project and to
supply Burley with power at a discounted rate. MID, how-
ever, declined to amend its contract.

In 1963, the Secretary transferred the authority to market
surplus power from the Minidoka Project from the Bureau to
the Bonneville Power Administration (“BPA”). After this
transfer of marketing authority, the Bureau and MID again
discussed the possibility of an amendatory contract. The
Bureau informed MID that the Minidoka Project would no
longer generate profits because the Bureau would only receive
enough income from the BPA to cover the project’s costs.
Despite being told that there would be no future profits, MID
refused to amend its contract.
5
The Gravity Unit distributes water diverted from the Minidoka Dam to
MID, and is comprised of an eight-mile long canal and lateral system.
United States Dep’t of the Interior, Bureau of Reclamation, Minidoka
Project, Idaho: General Description & Plan, available at http://
www.usbr.gov/dataweb/html/minidoka.html (last visited March 21, 2005).
7822 MINIDOKA IRRIGATION DIST. v. DOI
At the crux of the current dispute are several letters that
MID and the Bureau exchanged over the next few decades.
Therein MID asserted that it was entitled to profits from the
power generated by the Minidoka Project, and the Bureau
responded by reiterating that rising costs and the transfer of
marketing authority to the BPA precluded the possibility of
any such profits. The Bureau also continued to press MID to
amend its contract, but to no avail.

MID finally brought suit against the federal government on
December 10, 1991, alleging, inter alia, that the Bureau and
various government officials had violated both “Reclamation
law and the terms of the [1927] contract” by failing to account
to and credit MID for profits derived from the Minidoka Dam.
“The district court found that the United States repudiated its
contract with MID as early as 1963 and no later than 1985,”
and granted the government’s motion for summary judgment
on the ground that the six-year statute of limitations in 28
U.S.C. § 2401(a)6 had run. Minidoka I, 154 F.3d at 925. We
then reversed and remanded for a trial, holding that
“[v]iewing the evidence in the light most favorable to MID,
a genuine issue of material fact has been raised whether the
United States repudiated its contract with MID.” Id. at 929.

On remand, the district court held a seven-day bench trial
and once again held that MID’s breach of contract claim was
barred by the statute of limitations because it found that the
United States had repudiated its contract with MID “as early
as 1966, but at least by March 1985.” This timely appeal fol-
lowed.
6
Under 28 U.S.C. § 2401(a), “[e]xcept as provided by the Contract Dis-
putes Act of 1978, every civil action commenced against the United States
shall be barred unless the complaint is filed within six years after the right
of action first accrues.”
 MINIDOKA IRRIGATION DIST. v. DOI 7823
II

“We review de novo the question whether a claim is barred
by the statute of limitations.” Cashman v. City of Cotati, 374
F.3d 887, 892 (9th Cir. 2004). “We also review de novo the
question when the statute of limitations begins to run.” Id. “In
the Ninth Circuit, the question whether a party has repudiated
is one of fact.” Minidoka I, 154 F.3d at 927. Thus, we review
the district court’s determination that the Bureau “uncondi-
tionally, unequivocally, and positively repudiated any obliga-
tion that it may have had under the 1927 Contract” with MID
“at least by March 1985,” for clear error. See Chevron USA,
Inc. v. Bronster, 363 F.3d 846, 855 (9th Cir. 2004) (“We
review the district court’s findings of fact for clear error.”).
Review under the clearly erroneous standard is “significantly
deferential, requiring a ‘definite and firm conviction that a
mistake has been committed.’ ” Concrete Pipe & Prods. of
Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508
U.S. 602, 623 (1993). “So long as the district court’s view of
the evidence is plausible in light of the record viewed in its
entirety, it cannot be clearly erroneous, even if the reviewing
court would have weighed the evidence differently had it sat
as the trier of fact.” SEC v. Rubera, 350 F.3d 1084, 1093-94
(9th Cir. 2003). In other words, if “there are two permissible
views of the evidence, the [district court’s] choice between
them cannot be clearly erroneous.” United States v. Elliott,
322 F.3d 710, 715 (9th Cir. 2003). Furthermore, in reviewing
district court findings of fact for clear error, we “must view
the evidence in the light most favorable to the prevailing
party.” Rubera, 350 F.3d at 1094.

III

MID maintains that the district court erred in ruling that the
statute of limitations barred this suit, arguing that “[a] statute
of limitations does not run against continuing violations . . .
which occur during the limitations period.” MID also charac-
terizes the government’s conduct in this case as “anticipatory
7824 MINIDOKA IRRIGATION DIST. v. DOI
repudiation” and “anticipatory breach” instead of actual repu-
diation and breach, and argues that the statute of limitations
does not begin running with an anticipatory repudiation until
the time for performance comes due, unless the nonbreaching
party elects to treat the anticipatory repudiation as a final
breach and bring suit earlier. However, as the district court
and the government point out, these legal arguments are pre-
cluded by the law of the case.

In Minidoka I, an earlier panel of this Court declined
MID’s invitation to apply the continuing breach theory to
MID’s contract claim, concluding that the only remaining
question on this claim was whether the United States had
totally repudiated the 1927 contract with MID more than six
years prior to December 10, 1991, when the instant action was
filed. 154 F.3d at 926. In so holding, the panel stated that, “[a]
contract that creates continuing obligations ‘is capable of a
series of partial breaches or a single total breach by repudia-
tion.’ ” Id. (quoting Trs. for Alaska Laborers-Constr. Ind.
Health & Sec. Fund v. Ferrell, 812 F.2d 512, 517 (9th Cir.
1987)). The panel explained that “[l]anguage that is accompa-
nied by a breach by non-performance may amount to a repu-
diation even though, standing alone, it would not be
sufficiently positive.” Id. at 927 (quoting Restatement (Sec-
ond) of Contracts § 250 cmt. b).

[1] Minidoka I is the law of the case. “Under the ‘law of
the case’ doctrine, a court is ordinarily precluded from reex-
amining an issue previously decided by the same court, or a
higher court, in the same case.” Old Person v. Brown, 312
F.3d 1036, 1039 (9th Cir. 2002). As we held in Old Person,
the law of the case doctrine is subject to three exceptions that
may arise when “(1) the decision is clearly erroneous and its
enforcement would work a manifest injustice, (2) intervening
controlling authority makes reconsideration appropriate, or
(3) substantially different evidence was adduced at a subse-
quent trial.” Id. None of these exceptions apply here.
 MINIDOKA IRRIGATION DIST. v. DOI 7825
[2] MID cannot avail itself of the first exception to the law
of the case doctrine because the earlier panel’s determination
that a total repudiation can trigger the statute of limitations on
a continuing contract was not clearly erroneous. Minidoka I,
154 F.3d at 926. The panel in Minidoka I relied on our Cir-
cuit’s decision in Trustees for Alaska, which held that con-
tracts requiring “continuing performance” are “capable of . . .
a single total breach by repudiation.” 812 F.2d at 517. The
Minidoka I decision is supported by the leading treatises. See
4 A. Corbin, Corbin on Contracts (“Corbin”) § 956 (1951)
(noting that continuing contracts “are capable of . . . a single
total breach by repudiation” and that there are cases where
“the breach is such that the plaintiff must treat it as ‘total’ and
sue once and for all”); id. at § 989 (noting that where there is
“actual present breach . . . accompanied by definite repudia-
tion . . . according to the weight of authority there is a total
breach by the repudiator, creating in the injured party a single
right of action”); Restatement (Second) of Contracts § 243(2)
(1981) (“[A] breach by non-performance accompanied or fol-
lowed by a repudiation gives rise to a claim for damages for
total breach.”).

MID argues at length that an anticipatory repudiation can-
not trigger the statute of limitations in a contract action. This,
however, is beside the point because the government’s repudi-
ation here was not merely anticipatory, rather it was a total
repudiation accompanied by the government’s breach of its
obligation to provide MID with annual accountings and cred-
its based on revenues from the Minidoka Project.

[3] The second exception to the law of the case doctrine
does not apply because there has been no change in the con-
trolling authorities since Minidoka I was decided. MID’s reli-
ance on the Supreme Court’s decision in Franconia
Associates v. United States, 536 U.S. 129 (2002), is mis-
placed. In Franconia, the petitioners were property owners
who received low-interest mortgage loans from the federal
government in exchange for agreeing to devote their proper-
7826 MINIDOKA IRRIGATION DIST. v. DOI
ties to low-income housing and to abide by related restrictions
during the life of the loans. The promissory notes executed by
the petitioners contained provisions allowing them to obtain
release from the property use restrictions by prepaying the
loans “at any time at the option of Borrower.” Id. at 135.
Later Congress enacted a statute permanently restricting pre-
payment of the loans, and the petitioners brought suit alleging
that the restriction amounted to a taking of their property in
violation of the Fifth Amendment. The government responded
that the cause of action for breach of the loan agreement
accrued when the statute was enacted and that the petitioners’
suits were therefore barred by the applicable statute of limita-
tions.

The Supreme Court characterized the government’s perfor-
mance obligation under the promissory notes as “an obliga-
tion to accept prepayment” from the petitioners who enjoyed
the right to prepay “at any time,” which meant that the gov-
ernment’s performance could only become due “when, at
some point in the future, petitioners attempted to prepay.” Id.
at 142-43. Thus, the Court held that the statute passed by
Congress could amount only to an anticipatory7 repudiation of
the loan agreements, not an immediate breach, and could not
unilaterally cause the limitations period to begin running. Id.

[4] Here, by contrast, the government’s obligation under
the 1927 contract is to credit MID annually with a share of the
profits generated by the Minidoka Project, and it is clear the
government has not performed this obligation since the BPA
assumed control over the sale of surplus power from the Mini-
7
The Supreme Court’s Franconia opinion speaks in terms of repudia-
tion not “anticipatory” repudiation. However, it is clear from the Court’s
reasoning that it is discussing anticipatory repudiation in particular when
it talks about a “promisor’s renunciation of a ‘contractual duty before the
time fixed in the contract for . . . performance’ ” is due, while citing to
authorities that are devoted to anticipatory repudiation, such as Corbin
§ 959, which is entitled “Anticipatory Breach of Contract.” Franconia,
536 U.S. at 143.
 MINIDOKA IRRIGATION DIST. v. DOI 7827
doka Project in 1963. This case involving active breach by
nonperformance, coupled with the district court’s finding of
unequivocal repudiation, is readily distinguishable from Fran-
conia where there was only anticipatory repudiation because
the government was incapable of breaching its duty to accept
prepayment until the petitioners caused the duty to arise by
attempting to tender such prepayment. We therefore conclude
that Minidoka I’s holding that actual repudiation can cause the
statute of limitations on a continuing contract to run is still
good law, and has not been undermined by Franconia.

[5] The third exception to the law of the case doctrine is
also inapplicable. The district court’s Memorandum Decision
and Order does not analyze any evidence apart from that
already presented at the summary judgment phase, and an
independent review of the trial transcript shows that no evi-
dence of a “substantially different” nature was adduced at trial
on the issue of repudiation, although MID did introduce a
greater quantum of evidence to emphasize the alleged
ambiguities in the government’s statements of repudiation.

[6] Accordingly, we are “bound by the opinion of the prior
panel as the law of the case. Also we have no discretion to
depart from precedential aspects of our prior decision in
[Minidoka I], under the general law-of-the circuit rule.” Old
Person, 312 F.3d at 1039 (citing Ross Island Sand & Gravel
v. Matson, 226 F.3d 1015, 1018 (9th Cir. 2000), for the prop-
osition that if a case “remains the law of the circuit . . . we
are without authority to overrule its directives”).

IV

MID contends that the district court’s finding that the
Bureau had repudiated its contract with MID by March of
1985 was erroneous as a matter of law because it was based
only on the “evidence previously raised and rejected by this
Court in its 1998 opinion.” MID is essentially arguing that
because the Minidoka I panel held that the government’s let-
7828 MINIDOKA IRRIGATION DIST. v. DOI
ters and conduct between 1966 and 1985 were insufficient to
support a grant of summary judgment for the government on
the ground that it repudiated the contract before 1985, we are
bound to find that the same evidence is insufficient to support
the district court’s post-trial factual finding that such a repudi-
ation occurred.

[7] The panel in Minidoka I reversed the district court’s
grant of summary judgment, stating that when “viewing the
evidence in the light most favorable to MID,” the evidence
“falls short of unequivocal repudiation” and “could lead” to
the belief that the government was not breaching the contract.
154 F.3d at 927-28. However, that the Minidoka I panel
reversed the district court’s grant of summary judgment for
the government does not preclude the district court from
entering judgment for the government again after a bench
trial, even if the district court considers no additional evidence
aside from that which was already before it at the summary
judgment phase. See Kearney v. Standard Ins. Co., 175 F.3d
1084, 1095 (9th Cir. 1999) (en banc).

In Kearney, an action for disability benefits brought under
ERISA, we reversed the district court’s grant of summary
judgment for the defendant plan administrator and remanded
for a bench trial, notwithstanding that the trial might consist
of nothing more than “the district judge . . . read[ing] exactly
what he has already read [at the summary judgment phase],
which did not persuade him that [the plaintiff] could establish
even a genuine issue of fact.” Id. We explained that a remand
for trial was necessary “even if [the trial would] consist[ ] of
no more than the trial judge rereading what he ha[d] already
read” because the trial judge would review the evidence under
a different standard at the trial phase than he had at summary
judgment:

The district judge will be asking a different question
as he reads the evidence, not whether there is a genu-
ine issue of material fact, but instead whether [the
 MINIDOKA IRRIGATION DIST. v. DOI 7829
plaintiff has proven his claim]. In a trial on the
record, but not on summary judgment, the judge can
evaluate the persuasiveness of conflicting testimony
and decide which is more likely true. The difference
in the questions he is asking of the material may lead
the judge to read it differently. . . . There is no such
thing as findings of fact, on a summary judgment
motion. But in a bench trial on the record, the judge
will have to make findings of fact under Federal
Rule of Civil Procedure 52(a). The process of find-
ing the facts “specially,” as that rule requires, some-
times leads a judge to a different conclusion from the
one he would reach on a more holistic approach.

Id. (internal citations, quotation marks, and alterations omit-
ted). We also noted that a trial would change the standard of
appellate review “from de novo review of summary judgment,
to clearly erroneous review of findings of fact” and that such
a “change could be outcome determinative.” Id.

Under Kearney, there is no inconsistency between the
Minidoka I decision reversing the district court’s grant of
summary judgment on the ground that there was an issue of
fact as to repudiation, and our now affirming the district
court’s entry of judgment for the government based on the
district court’s post-trial finding that the government had
repudiated its contract with MID before 1985. This is so even
though it is undisputed8 that the district court relied only on
the same evidence it had considered at the summary judgment
phase. At trial the district court evaluated the evidence to
determine which party’s position was “more likely true,”
instead of looking at it in the light most favorable to MID as
the nonmovant at the summary judgment stage. Id.
8
As noted above, the district court’s Memorandum Decision and Order
does not analyze any other evidence, and the government does not dispute
MID’s contention that the district court’s finding of unequivocal repudia-
tion was based on “the very same documentary evidence and legislation
relied on by the district court in its earlier summary judgment.”
7830 MINIDOKA IRRIGATION DIST. v. DOI
Similarly, now that the district court has conducted a full
bench trial and made an actual finding of fact, our review on
appeal will only be for clear error and we will affirm the dis-
trict court as long as its finding is plausible in light of the
record viewed in its entirety, instead of reviewing the evi-
dence de novo and drawing all inferences in favor of MID, as
the Minidoka I panel was required to do. See id.

[8] Evaluating the government’s letters and conduct
between 1963 and 1985 in light of the legal principles on
repudiation set forth by Minidoka I and quoted above, we are
satisfied that the district court did not clearly err in concluding
that the government had repudiated its 1927 contract with
MID by no later than March 1985. The district court first
found that MID was on notice that it would no longer receive
credits from the Minidoka power plant in 1963 when the BPA
assumed responsibility for marketing surplus power generated
from the power plant. The district court’s finding was based
on its interpretation of the 1963 secretarial order that imple-
mented this transfer, which stated that the BPA, “shall inter-
connect and coordinate the Federally-owned power generation
and transmission facilities in the Snake River Basin with
those in the rest of the Columbia River Basin in order to
extend the benefits of uniform rate schedules and integrated
power services to all parts of [its] marketing area.” Indeed, the
Minidoka I panel acknowledged that it is plausible to view the
action described in this order as repudiation by conduct on the
government’s part because this language “could be under-
stood as notifying MID that the BPA will spread costs across
power generators, eliminating profits from the MID project.”
154 F.3d at 928.

The district court then found that the Bureau’s 1966 letter
constituted “unequivocal repudiation.” The 1966 letter stated
in pertinent part that the transfer of power marketing authority
to BPA “preclude[s] the possibility of having any net power
revenues from the operation of Minidoka Dam as an isolated
plant.” The district court’s reading of this language as a clear
 MINIDOKA IRRIGATION DIST. v. DOI 7831
statement that MID will no longer receive credits from the
Minidoka power plant is supported by the Minidoka I panel’s
observation that “[t]his statement [in the 1966 letter] could be
interpreted as repudiation.” 154 F.3d at 927.

The district court further found that the Bureau’s 1968 let-
ter “was simply a reiteration of the 1966 letter’s explanation
and repudiation,”9 and that the 1985 letter10 “once again
clearly and unambiguously repudiated any duty [the Bureau]
may have had under the 1927 contract.” As noted by the Mini-
doka I panel, because the Bureau’s “subsequent letters are
similar to the 1966 letter,” 154 F.3d at 928, it follows that if
it is plausible to interpret the 1966 letter as one of repudiation,
it is equally plausible to interpret the later similar letters as
statements of repudiation as well.

[9] MID argues that the government’s failure to credit MID
“may not have been a breach of contract or failure to perform
under the contract, if indeed there were no ‘net revenues’ dur-
ing those years” because the government was only required to
give credits when there were profits. MID also asserts that the
government’s offers to provide MID with accountings are
inconsistent with repudiation. However, even if the record
could also plausibly support MID’s alternate interpretation,
where “there are two permissible views of the evidence, the
[district court’s] choice between them cannot be clearly erro-
neous.” Elliott, 322 F.3d at 715. The district court’s finding
of repudiation must stand.
9
The Bureau’s 1968 letter was substantially similar to its 1966 letter and
provided in pertinent part that “there could be no net revenues available
in the future by reason of the requirement for new investment to cover
replacements and improvements.”
10
The Bureau’s 1985 letter again explained that “there have been no
profits accruing to the Minidoka Powerplant since 1962” when the BPA
assumed responsibility for marketing the Minidoka Project’s surplus
energy.
7832 MINIDOKA IRRIGATION DIST. v. DOI
V

We conclude that the district court did not clearly err in
finding that the government had repudiated its contract with
MID by March 1985, and we affirm the district court’s ruling
that MID’s contractual claim is barred by the statute of limita-
tions in 28 U.S.C. § 2401(a).

AFFIRMED.