The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

Home Browse Search

Issue #17 The Water Report Fish & Farms Case Bifurcated The Ruling Section 5937 Mandate Statewide Impact? Issues Injunctive Relief Balance? seq.); violations of the Endangered Species Act (16 U.S.C. § 1531 et seq.) (ESA); and violations of Reclamation law. The court ordered the parties to brief the issues relating to liability under plaintiffs' first (APA /Section 8 /Section 5937) claim separately from the issues relating to a "remedy" for any alleged violation of that claim, and separately from plaintiffs' second through eighth (NEPA, ESA, and Reclamation law) claims. The August 2004 District Court Order On August 27, 2004, ruling on cross - motions for summary adjudication, the District Court held that the Bureau's operation of Friant Dam violated Section 5937. (NRDC, supra, 33 F.Supp.2d at 925.) SPECIFICALLY, THE COURT RULED THAT: • Section 5937 applies to the operation of Friant Dam through Section 8 of the Reclamation Act of 1902, 43 U.S.C. §§ 372 and 383 • Section 5937 requires the reestablishment and maintenance of a stream's historic fishery • The Central Valley Project Improvement Act (102 P.L. 575, Title XXXIV) did not facially preempt Section 5937, and the decision of whether there is "as applied" preemption will be decided during the later remedies stage • The Bureau violated Section 5937 in operating Friant Dam to appropriate the water of the San Joaquin River under the terms of its permits In addition, the court ruled that the US Supreme Court's recent ruling in Norton v. Southern Utah Wilderness Alliance, 124 S.Ct. 2372 (June 14, 2004), does not affect the jurisdiction of the court. In Norton, the Supreme Court held that a section 706 claim under the APA (5 U.S.C. §706(1)) "can only proceed where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Id. at 2379. The court in NRDC, however, cited California Trout v. State Water Resources Control Board, 218 Cal.App. 3d 187 (1990), and found that "the relevant state law here directs the Bureau to release sufficient water to `reestablish and maintain' the `historic fisheries.' NRDC, supra at 917. Judge Karlton noted that Cal Trout is the `only California appellate decision to construe §5937." Id. at 919. The court held that the failure to comply with that discrete duty is reviewable under section 706 of the APA. The court also ruled that the State Water Rights Board's decision in the late 1950's, which granted the Bureau a permit to appropriate water from the San Joaquin River, is not entitled to preclusive effect in this case (permit known as "D -935" issued for Friant Dam). It is worth recalling what Section 5937 actually says: "The owner of any dam shall ... allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam." The court's interpretation of this language potentially affects water users throughout the state, not just at Friant. Specifically, the order ignores prior decisions of the Supreme Court and prior water rights decisions of the State, and renders vulnerable to environmental challenge every water supply project in the state, whether or not it is operated in compliance with state permits. It does so even though the Bureau currently operates Friant to release water that maintains, in good condition, a variety of cold -water and warm -water fish as well as planted fish. The order also puts the federal judiciary in charge of running the day -to -day operations of the CVP, and the State Water Project. Moving to the Remedies Phase Because the court ruled that the Bureau violated Section 5937, regardless of the Court's ultimate decision on the NEPA, ESA and Reclamation law claims, the hearing will progress to the remedies stage. Plaintiffs seek "[p]reliminary and permanent injunctive relief compelling the Bureau to release sufficient water from Friant Dam to keep in good condition fish that may be planted or exist below the Dam, and to remedy the harm to these fisheries" caused by the Bureau's alleged violations of the APA and Section 8 and the determined violation of Section 5937. Consequently, the remedies stage of the hearing is certain to be the most time - consuming, energy- intensive portion of these proceedings. In a later order, the court further suggested that if it finds a violation of the ESA it may be empowered to issue an injunction ordering water back into the river for salmon restoration without fully balancing the hardship to Friant farmers. It is apparently the court's view that the ESA requires the preservation and restoration of species at whatever the cost. Because salmon are not now found on the San Joaquin above the Merced River, the livelihoods of 15,000 farm families, many farm workers and entire communities are at risk from an injunction being issued. Friant defendants, of course, disagree. As explained below, the remedies phase of this trial must account for the severe hardships that could result if the court grants the plaintiffs the remedies they seek. The California Constitution, the CVPIA, and traditional equitable principles require that any remedy be limited to what is reasonable. 18 Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited.