Ninth Circuit Denies Petition for Rehearing of Area of Origin Decision

On October 15, 2013, the Ninth Circuit Court of Appeals issued an order denying the Petition for Rehearing filed by Tehama-Colusa Canal Authority (“TCCA”), which requested rehearing or rehearing en banc of the Ninth Circuit’s opinion in the case of Tehama-Colusa Canal Authority v. U.S. Dept. of the Interior, et al., Case No. 11-17199.

In its July 1, 2013 opinion, the Ninth Circuit rejected TCCA’s claim that California area of origin law entitled TCCA’s member districts to priority deliveries of Central Valley Project (“CVP”) water from the Bureau of Reclamation (“Bureau”). The court ruled that California area of origin laws, in particular Water Code section 11460, do not require the Bureau to prioritize the allocation of Federally-appropriated CVP water to Sacramento Valley CVP contractors. 

TCCA may still file a petition for a writ of certiorari seeking review of the Ninth Circuit’s opinion by the Supreme Court. 

Related Posts:

• Ninth Circuit Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority 
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority
• Tehama-Colusa Canal Authority Appeals Area of Origin Decision
• KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws

Ninth Circuit Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

On July 1, 2013, the Ninth Circuit Court of Appeals issued an opinion rejecting assertions by Tehama-Colusa Canal Authority (“TCCA”) that California area of origin law entitled its member districts to priority deliveries of Central Valley Project (“CVP”) water and that the Bureau of Reclamation (“Bureau”) acted in violation of law by delivering less than 100% of contract amounts during contractual “Conditions of Shortage.”  With the opinion, the Ninth Circuit affirmed the 2011 decision by the United States District Court for the Eastern District of California, discussed here.

In an opinion by Judge Johnnie B. Rawlinson, the court ruled that California area of origin laws, in particular Water Code section 11460, do not require the Bureau to prioritize the allocation of Federally-appropriated CVP water to Sacramento Valley CVP contractors. 

In addition, the court concluded that the “clear contract language” of TCCA members’ water service contracts provides that TCCA members are not entitled to the full amount of water contracted for, and “may have to endure pro rata reduction in times of shortage, along with other CVP contractors.”

Finally, the court held that validation judgments foreclosed TCCA and its members from seeking to “circuitously undo the contract provisions to which they previously acceded.”  The validation judgments, which became final in 2005, validated the water service contracts under California law. 

The Ninth Circuit’s opinion in the case, Tehama-Colusa Canal Authority v. U.S. Dept. of the Interior, et al., Case No. 11-17199, may be found here.

Related Posts:

• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority
• Tehama-Colusa Canal Authority Appeals Area of Origin Decision
• KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws

Oral Argument Scheduled For Ninth Circuit Appeals in Three Cases Involving the Central Valley Project

On October 9, 2012, the United States Court of Appeals for the Ninth Circuit issued a notice of oral argument in three cases involving the Central Valley Project and water rights.  The Ninth Circuit will hear argument in the cases of San Luis Unit Food Producers v. USA, Ninth Circuit Case No. 11-16122, Tehama-Colusa Canal Authority v. U.S. Department of the Interior, Ninth Circuit Case No. 11-17199, and Firebaugh Canal Water District v. USA, Ninth Circuit Case No. 11-17715, on December 5, 2012, at 9:00 a.m. in the James R. Browning United States Courthouse in San Francisco, California.  The court will reveal the identity of panel members not earlier than the week before the case will be heard.

In San Luis Unit Food Producers v. USA, the United States District Court for the Eastern District of California ruled that plaintiffs in the case lacked standing to sue the Department of the Interior.  Plaintiffs had alleged the government violated reclamation law by unlawfully withholding water for environmental purposes.  Briefing in the San Luis Unit Food Producers appeal completed on October 25, 2011. 

In Tehama-Colusa Canal Authority v. U.S. Department of the Interior, the Tehama-Colusa Canal Authority (“TCCA”) challenges the United States District Court for the Eastern District of California’s ruling that water users in the Sacramento Valley have no preferential right to deliver of Central Valley Project under California’s so-called “area of origin” laws.  Briefing in the TCCA appeal completed on July 2, 2012. 

Lastly, in Firebaugh Canal Water District v. USA, the issue on appeal is whether the San Luis Act imposes a clear legal duty on the Federal government to provide drainage for lands located outside the boundaries of the San Luis Unit of the Central Valley Project.  The origins of the litigation date back to 1988 and this appeal challenges the United States District Court for the Eastern District of California's ruling that the Federal government's interpretation of the San Luis Act, as imposing no mandatory duty to provide drainage service outside the San Luis Unit, is a reasonable and lawful interpretation, entitled to deference.  Briefing in the Firebaugh appeal completed on July 30, 2012.    

In each of the three appeals, the parties for each side are given twenty minutes for argument.

Related Stories:

• Tehama-Colusa Canal Authority Appeals Area of Origin Decision
• KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right to Central Valley Project Water under Area of Origin Laws
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

State Water Resources Control Board and the California Department of Water Resources Weigh in on Area of Origin Debate

On June 5, 2012, the State Water Resources Control Board (“SWRCB”) and the California Department of Water Resources (“DWR”) filed a brief as amici curiae in support of affirmance of the district court in the pending Ninth Circuit appeal of Tehama-Colusa Canal Authority v. U.S. Department of Interior, et al., Case No. 11-17199.

As we previously reported (here, here, and here), the United States District Court for the Eastern District of California ruled in August 2011 that water users in the Sacramento Valley have no preferential right to delivery of Central Valley Project water under California’s so-called “area of origin” laws.

In the amicus curiae brief, DWR and the SWRCB make the following concluding remarks:

It is undisputed that the Tehama-Colusa agreed to a water delivery contract with the Bureau that imposed a pro-rata shortage provision and did not recognize any preference based on California’s Area-of-Origin Statute.  It is also undisputed that Appellant did not try to obtain a water right from the SWRCB, even if Appellant believes it had an Area-of-Origin priority by virtue of its contract with the Bureau. These facts alone are sufficient to affirm the district court’s order granting summary judgment in favor of the United States.

Appellant Tehama-Colusa Canal Authority must file its final appellate brief in Tehama-Colusa Canal Authority v. U.S. Department of Interior, et al., by June 28, 2012.  Oral argument will be scheduled following the completion of briefing.

If you have any questions concerning this topic, please contact Daniel J. O'Hanlon, Hanspeter Walter, or Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.

Related Stories:

• KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority
• Tehama-Colusa Canal Authority Appeals Area of Origin Decision

Federal Court Rules State "Area of Origin" Laws Do Not Require Bureau of Reclamation to Preferentially Deliver Water to the Sacramento Valley

KMTG attorney Hanspeter Walter recently published an article in the California Water Law and Policy Reporter discussing a 2011 federal court decision, Tehama Colusa Canal Authority v. U.S. Department of the Interior, which interpreted California's "Area of Origin" laws. A copy of Mr. Walter's article may be found here.

If you have any questions concerning this topic, please contact Hanspeter Walter from our office, or the KMTG attorney with whom you normally consult.

Related stories:

• Tehama-Colusa Canal Authority Appeals Area of Origin Decision
• KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

Webinar: Current Litigation on California Area of Origin Law

On Friday, December 2, at 12:00 p.m. PST, the Natural Resources subsection of California's Real Property Law section will offer an informative presentation by Jennifer Spaletta and Daniel J. O’Hanlon regarding current litigation on California area of origin law. Event participants will learn about pending efforts in state and federal court to apply statutes to give priority deliveries of Central Valley Project and State Water Project water supplies to area of origin users.

In addition to a brief overview of California area of origin law and its historical applications, participants will hear about Solano County Water Agency v. Department of Water Resources, currently pending in Sacramento Superior Court. In this litigation, Solano County Water Agency and other agencies who serve water to northern California communities located in areas of origin filed suit against the California Department of Water Resources. Counsel for plaintiffs will be on hand to explain arguments for having DWR operate the State Water Project to give plaintiffs priority to their full contract supplies before exporting water south.

Similar arguments in the federal litigation, Tehama-Colusa Canal Authority v. U.S. Department of Interior, will be discussed by counsel for defendant-intervenors in that case. In federal court, plaintiffs sought and were denied operation of the Central Valley Project that would give priority allocations to area of origin users before water is exported south of the delta. This matter is currently on appeal.

The event will be hosted at Kronick Moskovitz Tiedemann & Girard, 400 Capitol Mall, 27th Floor, Sacramento, California 95814. To attend in-person, please email Lindsey Ono at Lono@kmtg.com.

To participate via webinar, see Origin Law.

For more information regarding this webinar, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories:

• Tehama-Colusa Canal Authority Appeals Area of Origin Decision
• KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

Tehama-Colusa Canal Authority Appeals Area of Origin Decision

As we previously reported (here and here), the United States District Court for the Eastern District of California ruled in early August that water users in the Sacramento Valley have no preferential right to delivery of Central Valley Project water under California's so-called “area of origin” laws.  In a notice filed this morning, the Tehama-Colusa Canal Authority, plaintiff in Tehama-Colusa Canal Authority v. U.S. Dept. of the Interior, et al., Case No. 1:10-cv-0712 OWW DLB, appealed that ruling to the Ninth Circuit Court of Appeals.  We will continue to monitor further developments in the case and provide updates as warranted.

The underlying opinion from which the plaintiff has appealed may be found here.

If you have any questions concerning this topic, please contact Daniel J. O'Hanlon, Hanspeter Walter, or Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.

Related stories:

• KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws

Water users in the Sacramento Valley have no preferential right to delivery of Central Valley Project (“CVP”) water under the state’s so-called “area of origin” laws, according to the U.S. District Court in Fresno. The “area of origin” laws allow water users within an area where water originates to apply for new diversions, and to obtain priority for such diversions ahead of already existing diversions for export uses by the CVP and the State Water Project. However, this protection does not grant CVP contractors in the area of origin a right to a preferential allocation of water diverted and stored by the CVP. Instead, the Court ruled, the only preference granted by the area of origin laws applies when users in the area of origin seek a separate water right permit from the State Water Resources Control Board (“SWRCB”).

The August 2 summary judgment ruling rejects the claims of CVP contractors in the Sacramento Valley seeking higher deliveries of CVP water as against other CVP contractors in the San Joaquin Valley and San Francisco Bay Area. The Tehama Colusa Canal Authority (“TCCA”) initiated the litigation during the recent drought, during which the U.S. Bureau of Reclamation (“Bureau”) had reduced CVP water deliveries to much of the Sacramento and San Joaquin valleys. TCCA operates facilities delivering CVP water to 16 local water districts with CVP water service contracts, all of which serve primarily agricultural and some municipal users in the Sacramento Valley. TCCA claimed that reduced CVP water allocations to its members in times of water shortage, while still delivering CVP water to users in export areas, violated the area of origin protections. TCCA sought to establish an area of origin priority to CVP contract deliveries pursuant to California Water Code section 11460 et seq. By seeking a special priority to CVP contract water deliveries, TCCA’s suit threatened further reductions in CVP water deliveries to San Joaquin Valley and Bay Area users, particularly during droughts. Westlands Water District and the San Luis & Delta-Mendota Water Authority intervened in the litigation on behalf of the federal defendants.

The Court’s decision affirms the Bureau’s long-standing application of the area of origin laws. The Bureau has long recognized that these laws protect a priority for new diversions by users within the area of origin over diversions by the CVP, but the Bureau has further consistently maintained that these laws create no priority among CVP contractors to allocation of CVP water supplies. The ruling confirms the Bureau’s position that Sacramento Valley water service contractors have no priority to CVP supplies over CVP contractors located south of the Delta.

The Court’s 87-page ruling rejects all of TCCA’s claims and arguments and provides the most extensive analysis to date of the application of California’s area of origin laws to a federal water project. The Court’s ruling includes three major conclusions: (1) that the relevant federal and state statutes grant no priority to use of CVP water to TCCA’s members; (2) that TCCA’s claims for preference are contrary to the terms of the CVP water service contracts signed in 2005; and (3) that state court judgments pursuant to validation statutes and the doctrine of equitable estoppel barred the claims. Thus, the Court rejected TCCA’s claims on multiple grounds.

For a detailed discussion of the facts of this case, and the rationale behind the court's ruling, please see the full KMTG Legal Alert here.  The court's opinion may be found here.

If you have any questions concerning this topic, please contact Daniel J. O'Hanlon, Hanspeter Walter, or Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.

Related story: District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

On July 29, 2011, the United States District Court for the Eastern District of California issued a memorandum decision rejecting assertions by the Tehama-Colusa Canal Authority that California area of origin law entitled its member districts to priority deliveries of Central Valley Project water and that the Bureau of Reclamation acted in violation of law by delivering less than 100% of contract amounts during contractual "Conditions of Shortage." 

In an almost 90-page decision by Honorable Judge Oliver Wanger, the court denied the Tehama-Colusa Canal Authority's motion for summary judgment and granted Federal Defendants' and Defendant-Intervenors San Luis & Delta-Mendota Water Authority and Westlands Water District's cross-motions for summary judgment.  SLDMWA and Westlands are represented by KMTG in this case.

The district court's opinion in the case, Tehama-Colusa Canal Authority v. U.S. Dept. of the Interior, et al., Case No. 1:10-cv-0712 OWW DLB, may be found here.

If you have any questions concerning this topic, please contact Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.