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

KMTG Legal Alert: State Water Resources Control Board May Prevent Illegal Diversions Of Water, Even If Diverter Claims Riparian Or Pre-1914 Appropriative Water Right

In Young v. StateWater Resources Control Board (--- Cal.App.4th ----, Cal.App. 3 Dist., August 4, 2013), a California court of appeal considered whether the State Water Resources Control Board (“Water Board”) has the authority under Water Code section 1831 to issue a cease and desist order (“CDO”) against what it has determined is an unlawful diversion of water, even if the diverter claims a riparian or pre-1914 right.  The appellate court rejected an argument that the Water Board was required to first seek a judicial determination of the claimed riparian or pre-1914 rights.   

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.

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

Update on Challenge to Reclamation's Supplemental Storage Releases from CVP's Lewiston Dam

Following a two day hearing, the U.S. District Court for the Eastern District of California on August 22, 2013, lifted a temporary restraining order (TRO) prohibiting excess releases of stored water into the Trinity River from the Central Valley Project’s Trinity River Division.  

The TRO had been in place since August 12.  In lifting the TRO and declining to issue a preliminary injunction, the court observed that the amount of CVP water slated for release had fallen to some 20,000 acre-feet, which is down from the more than 100,000 acre-feet originally contemplated by Reclamation.  In deciding not to enjoin the smaller storage release, the Court compared the risk of harm to fall-run Chinook salmon to the risk of harm from reducing water supplies for people.  The order acknowledges that “[b]oth sides of this dispute represent significant public interests. . . . Neither side holds veto power over the other.”

Related Posts:

• Court Extends Temporary Restraining Order Against Excess Storage Releases From CVP's Trinity River Division
• Temporary Restraining Order Granted in Lawsuit Challenging the Bureau of Reclamation's Planned August and September 2013 Supplemental Releases from Lewiston Dam

Court Extends Temporary Restraining Order Against Excess Storage Releases From CVP's Trinity River Division

On August 14, 2013, the U.S. District Court for the Eastern District of California extended a modified temporary restraining order (“TRO”) prohibiting excess releases of stored water into the Trinity River from the Central Valley Project's ("CVP") Trinity River Division.

Citing likely violations of the Central Valley Project Improvement Act's Trinity River Restoration Program Record of Decision ("TRROD") and the National Environmental Policy Act, the court extended the TRO to August 23 after finding “that Plaintiffs have demonstrated a likelihood of success on the merits and the possibility of irreparable harm that is not clearly outweighed by the equities on the other side."

Some 453,000 acre-feet of CVP water is already being released from the Trinity River Division in 2013 for the benefit of fall-run Chinook salmon in the Trinity River system pursuant to the TRROD.  The court extended the TRO despite opposition from the Hoopa Valley and Yurok Tribes, the Pacific Coast Federation of Fishermen's Associations and federal government contending that the excess CVP storage releases may prevent a possible disease outbreak that could affect Chinook salmon in the lower Klamath River.

The TRO prohibits the Bureau of Reclamation (“Reclamation”) from releasing into the Trinity River up to 109,000 acre-feet of water from storage in the federal CVP's Trinity and Lewiston reservoirs, pending an expedited hearing in which Federal Defendants are ordered to show cause why the modified TRO should not be converted to a preliminary injunction.

In the modified TRO, the court acknowledges the potential economic and environmental harms to Plaintiffs if the water releases go forward, while acknowledging questions about “whether these augmentation flows are truly necessary to prevent fish kills like that experienced in 2002.”  

Related Post:

• Temporary Restraining Order Granted in Lawsuit Challenging the Bureau of Reclamation's Planned August and September 2013 Supplemental Releases from Lewiston Dam 

Temporary Restraining Order Granted in Lawsuit Challenging the Bureau of Reclamation's Planned August and September 2013 Supplemental Releases from Lewiston Dam

On August 13, 2013, the U.S. District Court for the Eastern District of California issued a temporary restraining order ("TRO") prohibiting the Bureau of Reclamation ("Reclamation") from releasing into the Trinity River up to 109,000 acre-feet of water from storage in the federal Central Valley Project's ("CVP") Trinity and Lewiston reservoirs between August 13 and September 30, 2013.

The TRO follows the filing of a Complaint on August 7, 2013, by the San Luis & Delta-Mendota Water Authority and Westlands Water District (“Plaintiffs”) challenging the Reclamation’s decision to make Trinity River storage releases above and beyond the existing 453,000 acre-feet of releases dedicated to fall-run Chinook salmon fishery restoration and maintenance in 2013.

Reclamation had described the additional 109,000 acre-feet of excess releases as needed for fall-run Chinook salmon located below the confluence of the Trinity River and Klamath River (i.e., lower Klamath River).  The TRO cites the Complaint's argument that a year 2000 federal Record of Decision already dedicates 453,000 acre-feet of CVP water from Trinity Reservoir for restoration and maintenance of fall-run Chinook salmon this year, and that Reclamation could have used that water to provide the late summer flows at issue in the litigation.  The TRO also cites the Complaint's argument that Reclamation decided to make the excess late summer CVP storage release without analyzing and disclosing resulting impacts to CVP water users under the National Environmental Policy Act.

The TRO enjoins Reclamation “from making releases from Lewiston Dam to the Trinity River in excess of 450 cubic feet per second (‘cfs’) for fishery purposes through and including August 16, 2013.”  The short duration of the restraining order is designed to allow Plaintiffs to file reply papers and will afford the court an opportunity to perform a more detailed analysis of the issues.

The TRO was issued despite opposition by federal defendants and defendant-intervenors (Hoopa Valley Tribe, Pacific Coast Federation of Fishermen’s Associations, and Institute for Fisheries Resources).

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

Seven Lawsuits Filed Challenging the Delta Stewardship Council’s Delta Plan and Environmental Review Document

Seven lawsuits challenging the Delta Stewardship Council’s Delta Plan and final environmental document  were filed by the June 17 deadline.  The groups challenging the Council’s actions represent a range of interests: export contractors, environmental and fishing industry groups, a city, and in-Delta residents.  Links to the parties’ complaints and/or petitions are provided here:

• San Luis & Delta-Mendota Water Authority et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001500)
• City of Stockton v. Delta Stewardship Council (San Joaquin Co. Case No. 39-2013-00298188)
• State Water Contractors et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001530)
• California Water Impact Network et al. v. Delta Stewardship Council (San Francisco Case No. CPF-13-513047)
• North Coast Rivers Alliance et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001534)
• Central Delta Water Agency et al. v. Delta Stewardship Council (San Francisco Case No. CPF-13-513048)
• Save the California Delta Alliance v. Delta Stewardship Council (San Francisco Case No. CPF-13-513049)

The Delta Plan, adopted on May 16, 2013, by the Delta Stewardship Council, was developed in response to legislative mandate in the 2009 Delta Reform Act.  The Council certified its CEQA document, or Final Programmatic Environmental Impact Report (PEIR), on May 16, 2013.  The PEIR was prepared to evaluate the potential environmental impact of the proposed Delta Plan.

Although filed by disparate interests, the various lawsuits assert claims that fall into three general categories: (1) alleged CEQA violations, (2) alleged Delta Reform Act violations, and (3) alleged Public Trust Doctrine violations.  Because cases have been filed in three different counties, a threshold procedural issue will be whether all the cases should be coordinated before a single judge in one county.