Appendix — California v. Sierra Club
Supreme Court brief1981
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supreme Court U. S
FILED
Nos. 79-1252 and 79-1502 NOV 14 1980
m MICH?
Supreme Court of the United PES 2, ccm
OcTOBER TERM, 1980
STATE OF CALIFORNIA ef al,
Petitioners,
V.
SIERRA CLUB ef al.,
Respondents.
KERN COUNTY WATER AGENCY, et al.,
Petitioners,
Vv.
SreRRA CLUB ef al.,
Respondents.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
JOINT APPENDIX
RODERICK WALSTON ROBERT B. THUM
Deputy Attorney General Pettit & Martin
6000 State Building 600 Montgomery Street
San Francisco, CA 94102 San Francisco, CA 94111
Tel: (415) 557-3920 Tel: (415) 434-4000
Counsel for Petitioners Counsel for Respondents
State of California et al. Sierra Club et al.
[ Other counsel listed inside front cover}
PETITION FOR CERTIORARI IN NO. 79-1252
FILED FEBRUARY 13, 1980.
PETITION FOR CERTIORARI IN NO. 79-1502
FILED MARCH 17, 1980.
CERTIORARI GRANTED OCTOBER 6, 1980.
EpwarbD J. TIEDEMANN
KRONICK, MOSKOVITZ,
TIEDEMANN & GIRARD
555 Capital Mall, Suite 855
Sacramento, CA 95814
Counsel for Petitioner
Kern County Water Agency
Victor E. GLEASON
Deputy General Counsel
1111 Sunset Boulevard
Los Angeles, CA 90054
Counsel for Petitioner
Metropolitan Water District
JamMeES G. McCain, Esq.
P.O. Box 475
Corcoran, CA 93212
Counsel for Petitioner
Tulare Lake Basin
Water Storage District
ALBERT T. HENLEY, Esq.
5750 Almaden Expressway
San Jose, CA 95118
Counsel for Petitioner
Santa Clara Valley Water District
DANIEL F. GALLERY, Esq.
926 J Street
Sacramento, CA 95814
Counsel for Petitioner
Santa Clara Valley Water District
ELINOR HADLEY STILLMAN
Assistant to the Solicitor General
Department of Justice
Washington, D.C. 20530
Counsel for Respondents
Cecil D. Andrus et al.
Gary J. NEAR
476 Jackson Street
San Francisco, CA 94111
Counsel for Respondent
William Dixon
eS ae
TABLE OF CONTENTS
Docket Entries ( District Court) ................cseceeseees
Docket Entries (Court of Appeals ).................02++5
RPC RERE COTIIIRIIG, ceninsisxiresoiesctsonciosrcssvainvesnonseses
State Defendants’ Answe ............::ccseeeeeeeeseeeeeeees
Federal Defendants’ Answet.............c:sssccceeeseeeees
Decisions of Court of Appeals and District
Pre- Tried Qi? .....scscccessersossesees caspiimnemeaninereietenats
Affidavit (Frank M. Clinton) .............ccsceseeseeeees
Affidavit (Brent L. Graham )...................sssscsssseees
Affidavit (Lloyd C. Fowler )............:::cscssscsseesseees
AT aavie CSeaakt TPG) oo vivseccsenvensecsescceessoccsssoess
State Exhibit 8 .......::..,..cccesceesosososassscesscasensevseseooeess
Permit No. 4101 (Clifton Court Levee) ..............
Reporter’s Transcript ( partial ) ............:.sseseeseeeee
Unterlocutory Order ........cssrcsressosecreccscoccossovesseoseees
la
DOCKET ENTRIES (District Court)
UNITED STATES DISTRICT COURT
For THE NORTHERN DISTRICT OF CALIFORNIA
SIERRA CLUB
Rocers C. B. MORTON
Plaintiffs
VS. F No. C-75-500 SAW (13)
Defendants |
June 21
June 21
July 7
July 8
July 9
July 23
Aug 6
Proceedings
Filed complaint, no process
Issued Summons
Filed summons ret. ex.
Filed No. Mo. & Mo. for ext time to ans comp. by
STATE of CALIF. Hrg.5/20 2:15
ORD; deft mo to ext time for ans GRTD. SAW
Filed Stip & Ord. ext time for USA to ans thru 6/20
Filed ORD. ext time thru 6/20 for St. Calif. to ans SAW
Filed proof of ser of Ord. ext time to 6/20
Filed pltfs Sierra first request for production of docu-
ments by Fed defts
Filed plitfs Sierra first request for production of docu-
ments by State defts
Filed notice of Mo. & Mo. to dismiss, set for August 5,
1971 at 2:15P.M.
Filed notice * Motion to dismiss complaint set for
August 5, 1971 at 2:15P.M. $
Filed STATE OF CALIF. objections to pitf’s Ist req. for
documents
Filed USA ans. and objections to pitf. Ist req for
documents
Filed deft. supplementary ans. & objections to pitf. Ist
req. for documents
Filed Stip. & Ord. Con motion to dismiss to Sept. 2,
1971 at 2:15 P.M. SAW
Filed No. of Mo. and Mo. to compel prod of docums
hrg 9/2 2:15
SAW
2a
Proceedings
Filed Memo. in opposition to Pitffs Mo to compel Prod.
of Doc.
Filed Notice of re-setting hrg. to 9/9/71 SAW
Filed deft Memo. in opp. to, Mo. to compel prod of
docums.
Filed Stip & Ord. cont hrg on mos to 9/23 2:15 SAW
Filed Stip. cont hrg on Mos to 10:21 2:15 SAW
Filed pitf. brief in opp to deft Mo. to dism
Filed pltf. memo. in opp to deft Mo. to dism & suppl.
memo. in sup of Mo. for prelim. inj.
Ord after hrg. Deft Mo to dismiss complaint as to
United States & State Defts Denied without prej-
udice, Pitff Sierra Club Mo to compel production
referred to Magistrate Woodruff for Hrg. SAW
Filed sub of attys. for pltif SIERRA CLUB. Gerald K.
Gleason for R. Frederic Fisher
Filed pitf. No. of Mo. to compel prod of docums hrg
12/3 10:00
Filed St. of Calif. interrogs to SIERRA CLUB
Filed hey set of interrogs of State of Calif to Pitff Friends
of the
Filed ans of USA defts.
te! ans of pitf SIERRA CLUB to interrogs of ST. of
alif.
Filed amendment to ans of USA
Filed 2d amendment to USA ans.
Filed ans to comp by State defts.
Case assigned to Judge Renfrew
Filed Findings of facts & conclusions of law re prod of
documents
Filed State defts’ not. pursuant to Ord to Produce
Filed pitf’s substn of attys
Filed State of Calif. Defts’ first interrogs to Pitffs.
Filed State of Calif Defts’ First interrogs to Pitfs.
Filed State of Calif. Defts’ First interrogs to Pltifs.
Filed State of Calif Deft’s first interrogs to Pitfs.
Filed State of Calif. Defts’ Ist interrogs to Pitfs.
Filed Stip that plfts may have to May 30 1972 to answer
interrogs.
Filed Pifs Hank Schramm answers to interrogs.
Filed Pitf Sierra Club Answers to Interrogs.
Filed Reporter’s transcript, Oct 21. 1979.
Filed Answers to interrogs.
Filed Pitfs’ first interrogs to state of Calif Defts.
Filed Plitfs first interrogs to Federal Defts.
Filed Stip for ext of time to Jan 5, 1973 to ans pfts Ist
interrogs.
Filed Stip & ord that Deft State of Calif. Norman B.
Livermore Jr. may have to Jan 1, 1973 to ans Pitfs’
Ist interrogs.
Oct 17
Nov 16
Dec 12
Dec 20
Dec 21
Dec 27
1974
Jan 3
Jan 10
Feb |
Feb 12
Feb 13
50.
64.
65.
Filed Answer to Plifs first interrogs to Federal Defts.
Filed pltfs no of mo to compel ans to interr along with
memo of pts & auth & affts
Filed defts ans to pltfs Ist interr
Filed deft ans to pltfs Ist set of interr (State defts )
Filed notification of change of address & firm name
Filed Clerk's notice of Status report set for Oct 17-73 at
9:00a.m.
Filed Status report.
Filed Status report. Certificate of counsel.
Filed Certificate of Counsel by attorneys for Sierra Club
this document forwarded to Hon
Ord. Status report; prelim pre-trial conf set for 1-9-74 at
9:00am: set for 5 days trial by court on 6-3-74 at
(9:00am )
Filed Pitfs second Req. for prod. of Doc.
ee Deft’s resp. to Pltf's sec. set of req. for prod of
OCs.
Filed Deft’s not. of mo and mo for Order upon failure
to make disc. to be heard 1-9-74/9:30am
Filed Degt’s not of mo and mo to dismiss complaint to
be heard 1-9-74/9:30am
Filed ORD shortening time; that Fed. deft’s may have
until 12-31-73 within which to file their not. of mo
and mo to dismiss the complaint and the first
amended complaint, which the parties have stip. may
be filed herein, said mos to be heard on 1-9-74.
Filed Deft’s not. of mo and mo to dismiss complaint
and first amended complaint.
Filed Deft's Interrogs to Pltf.
Filed Stip & ORD; that pltf's proposed First amended
Complaint may be filed without formality of a mo.
Filed First Amended Complaint for Declaratory and
Infunctive relief.
Filed Not. to counsel of hrg date of 1-10-74/9am
Filed Stip & ORD; that the date set for hrg of mos in
this case may be rescheduled to 2-13-74/9am
Filed Fed. Deft’s supp’! memo of pts and author. in
supp. of mo dismiss.
Filed Pitf's memo in opp. to mo of Fed deft’s to dismiss
the first amended complaint.
Filed Pitf's memo in opp. to State Deft’s mo to dism.
Filed Pitf’s ans to interrogs of fed defts.
Filed pitf's supp’! affidavit in opp. to mos to dismiss.
Filed Pitf's Joinder and adoption of Supp’! opp’ ot
defts mo to dismiss.
Filed Correction of fed. defts’ resp. to pltf’s sec set of
reqs for prod. of docs.
CBR
CBR
CBR
CBR
4a
Fil Date Order
or or Judgment
Date Proceedings Noted
1974
Feb 13 ORD Fed. defts mo to dismiss complaint and Ist
amended complaint & State defts mo to dismiss
complaint—Both Denied; cont'd to 2-22-74/4:30pm
for pretrial; CBR
March 12 6. Filed ORD; that Magist Woodruff is hereby ordered
and directed to: Assist in the conduct of P/T and idsc.
Proc.; Assist the parties in the preparation of a P/T
ORD: etc See ORD for more details; CBR
March 14. —s-77«._~—«~Filled NOt. that the matter was referred to Magist Court
and is calendared for hrg on 3-21-74/2pm WOO DRUFF
4 March 15 78. Filed Kern County Water Agency’s not. of mo to
intervene as Deft. to be heard 4-10-74/9am
March 21 ORD; First conf. on proceures to be followed.; Parties
ordered to prepare porposedlist of undisputed facts.
Next hrg for late Apr. on date to be set by parties.
WOO DRUFF
March 29 79. Filed not. of mo to intervene as deft by The Metro.
Water District of Southern Calif. to be heard 4-10-74.
80. Filed Ex Parte Mo to shortentime by Metropolitan
Water District
81. Filed ORD shortening not. of hrg on mo to intervene to
4-10-74 at 9am CBR
82. Filed Pitfs memo in opp. to mo to intervene
April | 83. Filed defts Statement of no opp. to mo to intervene
( Fed. defts )
April 8 84. Filed Not. of mo of Santa Clara Valley Water District
to Intervene as Deft to be heard 4-10-74
LOD GED:ANS TO FIRST AMENDED COMPLAINT BY
SANTA CLARA VALLEY WATER DISTRICT.
85. Filed Ex Parte mo of Santa Clara Valley Water Dist. &
ORD; that that the time of not. for the hrg on the mo
to intervene as deft is shortened to permit hrg of said
mo 4-10-74/am CBR
86. Filed Proof of service by State of Calif.
April 9 87. Filed Memo of Pltfs Sierra Club and Hank Schramm in
opp. to mo to Intervene.
April 10 ORD Kern County Water District’s mo to intervene &
Metro. Water District of Southern Cal. mo to Inter-
vene and Santa Clara Water District mo to inter-
vene-—Granted CBR
April 12 88. Filed Tulare Lade Basin Water Storage District’s not. of
mo & MO to intervene as deft with attached docu-
ments to be heard 5-1-74/9am
April 16 89. Filed Tulare Lake Basin Water Storage’s Ex Parte mo
to shorten time with attached cert. of counsel in supp.
of mo.
April 17 90. de: Kr ag Lake Basin Water's Declaration of Service
y Mai
April 18 91. Filed ORD shortening not. of hrg on mo to intervene to
4-24-74/9am
April 24 ORD Tulare Lake Basin Water Storage Dist. mo to :
Intervene—Granted; CBR
April 25 92. Filed Pitfs memo in 9 to mo to intervene
April 29 93. Filed Stip and ORD; that the mo of Tulare Lake Basin
Water Storage District to intervene as deft is
GRANTED; CBR
Filing
or Order
Date
1974
April 30
May 2
May 7
May 8
May 17
May 29
May 30
June 6
June 7
June 10
June 11
June 12
June 17
June 18
June 19
June 20
94,
95.
99.
100.
101.
102.
103.
104.
Sa
Filed Fed. Defts’ Third set of Interrogs to pltfs:
Filed Stip & ORD;that the mos of the Kern County
Water Agency, The Mo Water Dist., and the Santa
Clara Valley Water Dist. to intervene as defts in this
action are GRANTED, and they are made parties
deft action and the ans of said intervenors attached to
their mos shall stand as their ans to the first amended
complaint.
Filed defts not. of mo & mo for P/T conf to be heard 5-
17-74/2pm
Filed OrD;that defts’ not. of mo and mo for p/t conf.
may be seved on pltfs five days before the date not’d
for said P/T conf. WwW
Filed ANS TO FIRST AMENDED COMPLAINT BY
INTERVENOR.
ORD; matter not. by defts for an interim p/T conf with
an agenda attached Under the first agenda item the
parties all agreed that the P/T ord cannot be com-
pleted until the court ruled on a defts’ mo to dismiss
as to certain parties and causes of action presently
pending; there was agreement that the trial should be
bifurcated and language proposed for inclusion in the
p/T ord spelling out the bifurcation.; cont'd until 5-
31-74/10am for possible completion of first draft of
the final P/T ord. woo
Filed Pitf William Dixon’s ans to defts’ first interrogs.
Filed Pitfs FRIENDS of the Earth Substitution of
Attorneys; John B. Clark in place of Gary J. Near
Filed Pits’ ans to Fed. defts’ Third set of interrogs
Filed Fed. defts supp. to ans to pltfs’ first interrogs.
Ord; Magistrate ruled on a series of Mo and objections,
pltf to prepare final P/T ord for signature and
approval at 8:00 AM 6-10-74; Trial to begin 9:00AM
6-10-74 woo
Filed Agreed P/T ord respecting the first phase of
Bifurcated Trial
ORD court Trial; Evidence introduced; cont’d to 6-11-
74/1:30pm for further trial
ORD; further trial; evidence introduced; Fed. defts’ mo
for a judgt in favor of Fed. defts on all counts or in
the —* for a mo to dismiss with prej. cont’d to
6-12-74
Filed ANS OF STATE DEFTS TO FIRST AMENDED
COMPLAINT
ORD; further trial; Fed. defts mo for a judgt in favor of
Fed. defts on all counts or in the Alternative mo to
dismiss with prej Denied w/o prej.; State defts mo to
dismiss with respect to delta pumping Pland— Denied
w/o prej.; cont’d to 6-17-74/ 1:30pm
ORD; further trial; Evidence introduced; cont’d to 6-18-
74/1:30pm
ORD; further trial; evidence introduced; Fed. defts mo
to admit Fed deft exhibits 14a, 14c, 14d deferred;
Plifs’ mo to strike portions of witness Teerink’s
testimony —Granted; cont'd to 6-19-74/10am
ORD further trial; evidence introduced; cont’d to 6-20-
74/9am
ORD; further trial; Evidence introduced; cont’d to 6-21-
74/9am
CBR
OO DRUFF
DRUFF
DRUFF
CBR
CBR
CBR
CBR
CBR
CBR
CBR
CBR
July 19
109.
110.
__Proceedings _
ORD: further trial; all briefs to be submitted by 7-19-
74: cont'd to 7-26-74/1:30pm for final arguments on
the first phase of the bifurcated trial
Fiied ORD; oral arguments of the parties to be heard 7-
26-74/ 1:30pm
Filed Fed. defts proposed findings of fact and con-
clusions of law.
Filed State Defts’ Proposed Findings of fact and con-
clusions of law.
Filed Proposed Findings of Fact and Conclusions of
Law of Pitfs’
LODGED: INTERVENOR KERN COUNTY WA-
TER AGENCY’S PROPOSED FINDINGS OF
FACT AND CONCLUSIONS OF LAW.
Filed Erratum in Proposed Findings of Fact and Con-
clusion of Law of Pltfs Sierra Club, Friends of the
Earth and Hank Schramm.
Filed ORD; that State defts’ Exhibit 3 be admitted into
evidence: and that a cert. copy of a letter of 3-28-66
to Chief of Engineers’ Depart of Army, etc be
admitted into evidence as State defts’ exhibit next in
ord.
LODGED: FED. DEFTS’S POST TRIAL BRIEF
AND OBJECTIONS TO PETFS' PROPOSED
FINDINGS OF FACT AND CONCLUSIONS OF
Filed Joint Brief of Intervenors.
Filed Pitfs’ Post-Trial memo
Filed State Defts’ Brief.
Filed Pitfs objections to defts’ proposed findings of
Fact and Conclusions of law.
Filed Pitf William Dixon’s Joinder and adoption of
proposed finding of fact and conclusions of law and
post trial memo
Ord: Further tr resumed. Witnesses. Case submitted.
Cont'd to 9-27-74 @ 4:30.
Filed Pitfs’ third req for prod. of docs by Fed. Defts.
Filed Pitf’s third req for prod. of docs by State Defts.
“—— 47 defts’ memo re comments of Court Made of
-26-
Filed State Defts’ memo concerning issues Discussed in
oral argument.
Filed Intervenors’ Memo on Oral Argument.
Filed pltf’s Status Report.
Filed State Defts’ memo concerning phase two of the trl
Filed state defts’ resp. and objections to pltfs’ third req
for prod. of docs.
hy Fed. defts’ objects to pltfs’ 3rd req for prod. of
ocs
Filed Reporter’s Transcript of 7-26-74
Filed Memo of Opinion
ORD: hrg cont to 10-2-75/1:30 pm
Clerk’s notice resetting hearing on 11-6-75/2pm to I1-
4-75/2pm
fi
CBR
CBR
LAW
CBR
CBR
CBR
CBR
Nov. 2
Nov. 26
Dec. 3
Dec. 4
Nov. 26
Dec. 16
Dec. 18
Feb 6
Feb |
128.
129.
130.
131.
132.
133.
134.
135.
136.
13.
138.
139.
140.
141.
142.
143.
144,
145.
146.
147.
148
149,
150.
SI.
7a
Proceedings
Stipulation & ORDER continuing hearing on | 1-4-75 to
12-4-75. at 2pm
Federal defendants’ Brief in support of their request to
enter final judgment
Plaintiffs’ Memo in opposition to entry of Final Judg-
ment
MINUTE ORDER OF 12-4-75: after hearing, contin-
ued to 12-19-75/1:30pm for hearing, deemed sub-
mitted on
12-19-75 (CBR)
Plaintiffs’ Memo in opposition to entry of Final Judg-
ment
Notice of related case C-75-2508 SW (in C-75-2508
SW)
Cases determined not to be related.
INTERLOCUTORY ORDER GRANTING INJUNC-
TIVE RELIEF: plaintiffs’ 2nd, 3rd & fifth claims are
dismissed with prejudice (CBR) Pending compliance
with this Order, Court retains jurisdiction to entertain
proceedings in Phase Two of bifucated trial & to
make further orders
Defendants’ Livermore & Teerink’s Notice of Appeal
from Order of 12-18-75
Defendant in intervention Kern County Water Agency’s
Notice of Appeal from Order of 12-18-75
Certificate of Clerk to deposit of $250 in lieu of Costs
Bond by defendant Kern County
Designation of Record on Appeal by Appellant Kern
County
Designation of Record on Appeal by Appellant State
Intervenor Metropolitan Water Cistrict’s Notice of Ap-
peal ( Order 12-18-75)
$250 Bond on Appeal secured By cash deposit
Federal oe Notice of Appeal from Order of
12-18-
Intervenor Tulare Lake’s Notice of Appeal from Order
of 12-18-75
—, Tulare Lake’s $250 Personal Bond on Ap-
pea
Intervenor Santa Clara’s Notice of Appeal from Order
of 12-18-75
Intervenor Santa Clara’s $250 Personal Bond on Appeal
Defendant METROPOLITAN WATER, designation of
record on appeal.
Appellee’s designation of record on appeal.
— Santa Clara's Designation of record on ap-
pea
Notice of reproduction costs mailed, $583.50 (each
appellant to pay $97.25)
— payment for reproduction from Santa Clara
Valley
Appellant Kern County’s & State’s motion to extend
time to transmit record on appeal & ORDER time
extended to 5-6-76 (CBR)
Received payment for reproduction from Kern County
Received payment for reproduction from State defend-
ants
Received payment for reproduction from Tulare Lake
Basin
Received payment for reproduction from Metropolitan
Water
a. Transcript of 10-21-71 & 6-26-74, Vol. A,
riginal & | copy
CBR
Filing
or Order
Date
1975
May 24
152.
153.
154.
155.
156.
157.
158.
159.
8a
Proceedings
Reporter's Transcript of 6-10-74, Vol. I, original & |
Raporwei’s Transcript of 6-11-74, Vol. Il, original & |
Reporter's Transcript of 6-12-74, Vol. III, original & |
mepanet’s Transcript of 6-17-74, Vol. IV, original & |
hagorit’s Transcript of 6-18-74, Vol. V, original & |
heserer's Transcript of 6-19-74, Vol. VI, original & |
aponer’s Transcript of 6-20-74, Vol. VII, original & |
heporear’s Transcript of 6-21-74 & 9-4-75, original & |
copy
[certification omitted |
Date Order
or Judgment
Noted
9a
DOCKET ENTRIES (Court of Appeals )
United States Court of Appeals
For THE NINTH CIRCUIT
SIERRA CLUB, a non-profit California
Corporation, ef. al.,
Plaintiffs-Appellees
VS. Nos.
+ 76-1494;
Norr-An B. LiveRMORE, JR. 76-1534;
and JOHN R. TEERINK, 76-1651;
Defendants-Appellants 76-1663;
KERN COUNTY WATER AGENCY, ef. al, 76-1981
Defendants-In Intervention
f
For Appellees: For Appellants:
JOHN B. CLARK, Esa. EVELLE J. YOUNGER,
and ROBERT THuM, Esq. Atty. Gen. Calif.
CARL BORONKAY,
Assis. Atty.
BERTRAM G. BuUZZINI,
Dep. Atty. Gen.
Clerk's Fee
Same record for 76-1494, 76-1534, 76-1651, 76-1663, 76-1981
Date Filings-Proceedings Appellant —Appeliee
1976
March 9 DOCKETED CAUSE AND ENTERED APPEAR-
ANCES OF COUNSEL —chs— 50.00
Apr | Recvd copy of order filed in Dist. Ct. 3/26/76
granting an ext to time to & including May 6,
1976 for transmitting the record —jc—
May 3 FILED IN 76-1464 TRANSC RECORD ON AP.- .
PEAL IN FOURTEEN VOLUMES: VOLS. I-V,
PLDGS, ONE CERT COPY & TWO COPIES
EACH; VOLS. VI-XIV, RPTRS TRANSC, ONE
ORIG. & ONE COPY EACH. ONE BOX IN RM.
Aplts’ brief in 76-1464, due June 19,1976 —cjb—
Date
Jun 18
June 21
June 21
June 21
June 22
June 29
Jun 29
Jun 29
Jun 29
July 6
Jul 7
Jul 12
Jul 19
Jul 21
Jul 22
Aug |7
Aug 30
Sep 20
10a
Same record for 76-1494, 76-1534, 76-1651, 76-1663, 76-1981
Filings-Proceedings
Clerk’s Fee
Appellant
Appellee
Filed 25 Aplts’ Briefs (Livermoore & Teerink)
6/17/76 —dmf—
Filed, in 76-1981, federal aplts’ motion for per-
mission to file typewritten copy of brief pending
reproduction to (c) with copy of brief —jr—
Filed Intervenor-aplt’s (Kern County, Tulare Basin
Water, Storage, Metropolitan Water Dist of So.
Calif. & Santa Clara Valley Water Dist.) motion
requesting judicial notice; & memorandum of
points & authoritics in support of motion.
(6/21/76) (to Schickele ) —jc—
Filed in 76-1494, intervenor-aplts’ (Kern County
Water Agency, Metro. Water Dist. of S. Calif.
Tulare Lake Basin Water Storage Dist. & Santa
Clara Valley Water District) motion to consoli-
date appeals 76-1494, 76-1534, 76-1651 & 76-
1663 (to“C”) —cjb—
Rec'd, in 76-1494, 25 Joint Intervenors-Aplits’ Briefs
(6/21/76) —dmf—
Filed, in 76-1981, order (C) granting federal aplts
leave to file typewritten copy of brief pending
reproduction —dmf—
Filed, in 76-1494, order (C) consolidating 76-1494,
76-1534, 76-1651 and 76-1663 for purposes of
briefing and argument. Subject to reconsideration
if any objection filed within 7 days —dmf—
Filed, in 76-1494, 25 Intervenors-Aplts’ Briefs
(6/21/76) —dmf—
Filed, in 76-1494, one typewritten Federal Aplts’
Brief —dmf—
Filed Appellees Memorandum (Sierra Club, et al)
in opposition to Motion requesting judicial notice.
7/2 to Schickele —ec—
Rec’d, in 76-1981 as of July 2, 1976, 25 Federal
Aplts’ Briefs; (6/24/76) cover incorrect. —dmf—
Filed Reply Memorandum of Intervenor-Appellants
(Metropolitan Water District of So. Calif., et al)
in support of motion requesting judicial notice. to
Schickele —ec—
Filed motion & order (Clk) granting aples motion
for ext of time. Aples Sierra Club, Friends of the
Earth, H. Schramm & W. Dixon may have to
Aug. 20, 1976, in which to file briefs. Subj to
reconsideration if any obj filed w/in 7 days —ec—
Rec’d supplemental affidavit in support of motion
for ext of time for filing aples’ briefs. (Motion
already acted upon) —cjb—
Filed, in 76-1981, 25 Aplts’ Briefs (6/24/76)
—dmf—
Filed motion & order (C.D. Clk) extending aples’
time (Dixon, et al) for filing brief to Sept 20,
1976. Subj to reconsideration if any obj filed w/in
7 days. —ec—
Filed order (H & G) Upon due consideration, the
motion of Intervenor-aplt’s (Kern County, Tulare
Basin Water, Storage, etc.,) requesting judicial
notice is denied. —fn—
Filed 25 Aplees’ Briefs ( Dixon, et al) 9/20/ i .
— m —_—
Date
Oct 7
Oct 8
October 19
Oct 19
Oct 28
Nov 3
Nov 19
Nov 22
1978
Apr 12
May 9
Jul 24
Jul 31
Nov 30
1979
Oct. 31
Oct. 31
Oct. 31
Nov. 19
Nov. 23
1980
Jan. 9
lla
Same record for 76-1494, 76-1534, 76-1651, 76-1663, 76-1981
Filings-Proceedings
Clerk's Fee
Appellant
Appellee
Filed motion & order (Clk) granting ext of time for
filing aplts’ closing briefs to Nov 20, 1976. Subj to
reconsideration if any obj filed w/in 7 days. ( aplts
Livermore, et al) —wx—
Filed in 76-1981, aplt’s (USA) motion for per-
mission to file typewritten copy of brief pending
repro. Schickele —ec—
Filed Aples’ (Sierra Club, et al) motion for leave to
file errata to brief of Plaintiffs-Aples filed
9/20/76. Schickele —pb—
Filed order (A) Upon due consideration, the motion
of (USA) for permission to file a typewritten copy
of the brief pending reproduction is granted.
anion ETE tan
Filed, 76-1981, 25 Aplts’ Reply Briefs (USA)
10/15/76 —dmf—
Filed order (H) upon due consideration, the aple’s
motion for leave to file errata to their brief is
granted —fn—
Filed 25 Aplts’ Reply Briefs (Livermore, et al)
11/18/76 —dmf—
Filed 25 Intervenor-Aplts’ Reply Briefs (Kern
County Water Agency, et al) 11/22/76 —dmf—
Filed in 76-1981, as of April 3, motion (Sec. of the
Interior) SF to accelerate oral argument. (pan-
el) 3/39/78 —dmf—
Argued & submitted to Ely, Trask, Tang, CJJ —ec—
Recvd as of 7/21, from Michael R. Sherwood, Esq.,
letter dtd. 7/19/78, re add'l citation. ( panel )
Recvd in 76-1494, from Victor E. Gleason, Esq.,
letter dated Jul 28, 1978, re Supreme Court’s
decision in California v. U.S. (panel) —ec—
As of 11/22/78, Aple’s add’l citations. (panel )
—vt—
ORDERED OPINION (ELY) TANG CON-
CURRING FILED & JUDG TO BE FILED &
ENTD.
Filed opinion—Affirmed in part, reversed in part,
and remanded for further proceedings
Filed & Entered Judgment. —rmce—
Filed, as of Nov. 14, motion & order (cirk) granting
aples’ (SIERRA CLUB, et al) an ext. of time to
and including Nov. 21, 1979 to file petition for
rehearing and suggestion for rehearing en banc.
nineibon
Filed as of Nov. 21, aples’ (SIERRA CLUB, etal)
petition for rehearing and suggestion for rehea-
ring en banc. ( panel, active judges) 11/21 —db—
Rec'd as of Jan. 8, ltr dtd Jan. 7, from George
Deukmejian’s office re: requesting Court to act
upon petition for rehearing. (panel) —db—
Date
Jan. 17
Feb. 15
Feb. 19
Feb. 25
Apr. 3
“Oct. 14
12a
Same record for — 16-1534, 76-1651, 76-1663, 76-1981
ings-Proceedings
Filed order (E, T & Tg) the petition for Rehearing
is DENIED, and the suggestion for a rehearing en
banc is REJECTED. —rmce—
Mandate Issued
Filed. as of Feb. 13, aplt’s (STATE OF CALIF)
motion to recall and stay mandate. (panel) 2/13
Received SC notice of filing petition for cert on
2/13/80, (California) SC#79-1252. —pn—
Filed order (WE) the mandate issued to the DC
herein on Jan. 28, 1980 is recalled and stayed
pending determination by the Supreme Ct of the
application for a writ of certiorari filed by the
State of CA. —rmce—
Received SC notice of filing petition for cert (Kern
County Water) on 3/27/80 SC#79-1502. —pn—
Filed certified copy of SC order granting certiorari
on 10/6/80, SC#79-1252 & 1502. (copies to
panel ) : —pn—
Clerk's Fee
Appellant
Appellee
13a
AMENDED COMPLAINT
JOHN B. CLARK
JOHN B. BIGELOW
Attorneys At Law
600 Montgomery Street,
21st Floor
San Francisco, Calif. 94111
Tel: (415) 434-4000
Attorneys for plaintiffs,
Sierra Club and Hank Schramm
Gary J. NEAR
Attorney at Law
473 Jackson Street
San Francisco, Calif.
Tel: (415) 398-4727
Attorneys for plaintiffs,
Friends of the Earth and William Dixon
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
[Case caption omitted }
FIRST AMENDED COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE RELIEF
Plaintiffs allege the following:
Jurisdiction
1. This action arises under the Rivers and Harbors Act of
1899, 33 U.S.C. §§ 400 et seq.; the National Environmental
Policy Act of 1969, 83 Stat. 852, the Fish and Wildlife
l4a
Coordination Act, as amended, 16 U.S.C. §§ 661-666; the
National Estuarine Areas Act, 16 U.S.C. §§ 1221 et seq.; and
the Federal Water Pollution Control Act, as amended, 33
U.S.C. §§ 1151 et seq.; Jurisdiction of this Court is conferred by
the Federal Question Statute, 28 U.S.C. § 1331(a), the 1962
Mandamus Act, 28 U.S.C. § 1361, the Declaratory Judgments
Act, 28 U.S.C. § 2201, and Section 10 of the Administrative
Procedure Act, 5 U.S.C. 701-706. The matter in controversy
exceeds $10,000.00 exclusive of interest and costs. As to the
state claim asserted herein, the court has pendant jurisdiction
thereof..
Parties
2. Plaintiff Sierra CLuB is a non-profit California corpo-
ration and from 1892 to the present has maintained its principal
office. in San Francisco, California. The Sierra Cus has
approximately 130,000 members of whom approximately
40,000 live in the area of San Francisco Bay and the Delta
formed by the Sacramento and San Joaquin Rivers. The
SERRA CLUB is dedicated to the preservation and conservation
of the natural resources, fish and wildlife of the United States
including its rivers, bays, wetlands, deltas and estuarine areas.
The Sierra Cius has regularly served as a responsible repre-
sentative of persons similarly interested. Included in the
membership of the SieRRA CLUB are many persons who use the
waters referred to herein for recreational purposes, including
but not limited to boating, fishing and swimming. The SIERRA
Cus brings this action in behalf of said members, as well as in
its own behalf, and wi!l adequately represent the interests of
such persons. One of the purposes of the SIERRA CLUB is to
represent persons interested in the protection and preservation
of natural resources and the environment by such means,
among others, as the commencement of legal action when the
SiERRA CLUB believes such action is necessary or appropriate.
The SierRA CLUB and its members are adversely affected and
aggrieved by the acts complained of herein.
3. Plaintiff FRIENDS OF THE EarTH (hereinafter FOE) is a
non-profit corporation organized and operating under the laws
15a
of the State of New York, with a principal place of business in
San Francisco, California. FOE, by its activities and its conduct
is committed to the preservation, restoration and rational use of
the environment, especially in the restoration of those portions
of the earth which have been mistreated by man, and in the
preservation of remaining wilderness areas. FOE has regularly
served as a responsible representative and spokesman of per-
sons similarly interested in litigation and administrative and
legislative proceedings affecting the environment. FOE brings
this action on behalf of its members and in its own behalf and
will adequately represent the interests of such persons. FOE’s
interest and the interests of its members are adversely affected
and are directly aggrieved by those acts of defendants as
hereinafter more fully appears, including the loss of recreation-
al activities and esthetic enjoyment.
4. Plaintiff HANK SCHRAMM is and has been for the past 10
years engaged in the business of commercial fishing and the
operation of sports-fishing party boats in the waters of San
Francisco Bay and of the Pacific Ocean in the region of San
Francisco. HANK SCHRAMM has an economic interest in and
depends for his livelihood on the maintenance, preservation
and conservation of sports and commercial fisheries in San
Francisco Bay and in the adjoining waters of the Pacific Ocean
and would be adversely affected by the diversions of water
from the discharge of polluted water into the Sacramento River
and Delta and by other acts of defendants complained of here.
5. Plaintiff WitLiam Dixon is a lifelong resident of
California and the San Francisco Bay area. DIXON owns
substantial property in the Sacramento-San Joaquin Delta
region, to wit, partnership in the St. Germain Duck Club on
Grizzly Island. The diversion of water and pollution of San
Francisco Bay by the acts of the defendants as hereinafter more
fully appears, directly and substantially affect the economic
value of his property interests and are detrimental to the
recreational and esthetic enjoyment of his property.
l6a
6. Defendant RoGers C. B. Morton is the Secretary of
the Interior of the United States and is responsible for the
administration of the United States Department of the Interior.
7. Defendant GitBert G. STAMM is the Acting Commis-
sioner of the Bureau of Reclamation of the United States
Department of the Interior.
8. Defendant Howarp H. Ca.iaway is the Secretary of
the Army of the United States.
9. Defendant WILLIAM C. GrisBLE, Jr. is the Chief of
Engineers of the United States Army and the Administrator of
the United States Army Corps of Engineers.
10. Defendant GeorGe B. Fink is the Division Engineer of
the South Pacific Division of the United States Army Corps of
Engineers and maintains his office in the City and County of
San Francisco, State of California. Included within the geogra-
phic boundaries of the South Pacific Division of the Corps of
Engineers are the Sacramento River, the Sacramento-San Joa-
quin Delta, San Francisco Bay and adjoining waters of the
Pacific Ocean. Bric. GEN. FINK is responsible for the issuance
of permits granting the approval of Chief of Engineers and
Secretary of the Army with respect to structures affecting
navigable waters of the United States within the geographic
boundaries of said South Pacific Division.
11. Defendant NoRMAN B. LiIverMorE, JR. is the Secretary
for Resources of the State of California in which capacity he
supervises and administers the operations of the Resources
Agency of the State of California.
12. Defendant JoHN R. TerRINK is the Director of the
Department of Water Resources, which is a department within
the Resources Agency of the State of California.
GENERAL ALLEGATIONS
13. Plaintiffs seek declaratory relief adjudicating and
decreeing that existing and proposed diversions of water from
the Sacramento and San Joaquin Rivers and their tributaries
17a
and the depositing of waste water therein by the State of
California and the United States Bureau of Reclamation, as
more particularly described below, cannot proceed until the
defendants have complied with the laws and statutes of the
United States and the State of California respecting con-
servation of fish, wild life and other natural resources, protec-
tion of water quality and the construction of facilities affecting
navigable waters of the United States. Plaintiffs further seek
injunctive relief enjoining said diversions of water until such
time as the studies and determinations required by law have
been made and the approvals required by law have been
obtained.
14. The purpose of this action is to preserve and protect
the quality of water and the fish and wild life habitat in the
Sacramento and San Joaquin Rivers, the Sacramento-San
Joaquin Delta, and San Francisco Bay, including Suisun and
San Pablo Bays, and to prevent permanent and irreparable
damage to fisheries, public health and recreation which would
be caused by excessive diversion of water from the Sacramento
and San Joaquin Rivers.
15. The Sacramento and San Joaquin Rivers combine to
drain the Central Valley of California, which comprises about
37% of the total land area of the State of California.
16. The Sacramento-San Joaquin Delta (“Delta”) con-
tains approximately 700 miles of navigable meandering water-
ways which provide a unique environment for a variety of fish
and other aquatic life. Approximately 25% of California warm
water and anadramous sport fishing and 80% of the commercial
salmon fishing of California are dependent upon the Delta
environment.
17. The Delta and the marshes and wetlands adjoining the
Delta and downstream waters are a wintering area and a vital
natura! habitat for migratory birds on the Pacific Flyway.
18. San Francisco Bay constitutes one of the major and
most important estnaries in the United States. More than four
million people reside in the metropolitan Bay Area and use and
18a
depend in one way or another upon the water in San Francisco
Bay for recreation, commerce or esthetic enjoyment. These uses
are contingent upon the water quality of San Francisco Bay,
which is critically dependent upon continued discharge of fresh
water from the Delta to provide flushing and circulation
necessary to reduce salinity content, phosphate concentration
and pollution of the waters of San Francisco Bay.
19. As more particularly alleged hereinbelow, the Secre-
tary of the Interior of the United States is charged with the
responsibility for preserving, conserving and protecting the fish,
wild life and other natural resources of the United States. The
Secretary of the Interior has failed to discharge this responsi-
bility and has instead permitted the Bureau of Reclamation to
promote and commence the construction of facilities, described
in paragraphs 21 through 32, which would have the combined
effects (1) of diverting from the Sacramento River much of the
water which otherwise would flow from it into San Francisco
Bay and (2) of causing substantial pollution of the Delta and
San Francisco Bay by causing water drained from the San
Joaquin Valley which has been polluted by pesticides and other
poisonous wastes to be deposited directly into the Delta.
State Water Project
20. In 1959, the Legislature of the State of California
adopted the Burns-Porter Act which authorized the construction
of the “State Water Project”, which project would consist of a
system of dams, canals, pumping plants and other facilities
designed to divert water in excess of four million acre-feet per
year from Northern California to other parts of the State of’
California, primarily Southern California. The Burns-Porter
Act was submitted to and approved by the voters of the State of
California on November 8, 1960. The State Water Project was
designed to utilize existing federal facilities, is financed in large
part by federal funds, and is designed to operate in coordina-
tion with the Central Valley Project of the United States Bureau
of Reclamation. Some of the essential facilities of the State
19a
Water Project are “joint use facilities” which also constitute
integral parts of the Central Valley Project of the United States
Bureau of Reclamation.
21. The State of California, through its Resources Agency
and Department of Water Resources, has entered into contracts
pursuant to which it has agreed to use its best efforts to deliver
4.23 million acre feet of water annually. The primary pur-
chasers of water are the Kern County Water Agency, which has
agreed to purchase 1,153,000 acre-feet annually, and the
Metropolitan Water District of Southern California, which has
entered into contracts for 2,001,500 acre-feet per year.
Delta Pumping Plant
12. The State Water Project provides for obtaining
substantially all of the 4.23 million acre-feet of water required
annually by said project from the Sacramento River and its
tributaries. Among the facilities completed or partially con-
structed for this purpose are the Oroville Dam on the Feather
River and the Delta Pumping Plant, which is located in the
Sacramento River Delta. The purpose of the Delta Pumping
Plant is to divert approximately four million acre-feet of water
per year from the Sacramento River to be transported by means
of canals, pumping plants and other facilities to other areas in
California, primarily Southern California. The Delta Pumping
Plant has been financed in part with money contributed by the
federal government and has been and is being constructed with
the assistance of and in cooperation with the United States
Bureau of Reclamation.
23. The Delta Pumping Plant is located on a body of
water known as Clifton Court Forebay, essentially a holding
area for water to be pumped through the plant directly into the
California Aqueduct, and was created by the California Depart-
ment of Water Resources and the Bureau of Reclamation by
excavating and building dikes around the periphery of an area
of land within the Delta known as the Clifton Court Tract.
20a
Central Valley Project
24. The United States Bureau of Reclamation has spon-
sored and administered the construction and operation of the
Central Valley Project, which consists of a series of reservoirs,
pumping plants, canals and other facilities for the purpose of
controlling the flow of water in the Sacramento River, gener-
ating hydro-electric power and providing water for irrigation
and other uses in the Central Valley of California.
Tracy Pumping Plant
25. Included in the facilities of the Central Valley Project
is the Tracy Pumping Plant, located on an inlet channel of Old
River in the Delta. The purpose of the Tracy Plant is to divert
water from the Delta by means of pumping into the 115 mile
long Delta-Mendota Canal, which leads to various locations in
the Central Valley of California.
26. The Bureau of Reclamation presently is diverting
approximately 1,500,000 acre-feet of water annually from the
Sacramento and San Joaquin Rivers by means of the Tracy
Pumping Plant and the Delta-Mendota Canal.
Peripheral Canal
7. The State of California and Bureau of Reclamation
propose jointly to finance, construct and operate a canal
approximately 43 miles in length from a point on the Sacra-
mento River near Hood, California, to a point in the Sacra-
mento River Delta adjacent to the Tracy Pumping Plant and
the Delta Pumping Plant. This canal is known as and is
referred to herein as the “Peripheral Canal”. The State of
California and Bureau of Reclamation propose that the Per-
ipheral Canal be generally 400 feet wide and 30 feet deep.
28. The proposed purpose and function of the Peripheral
Canal is to transport fresh water to the Delta and Tracy
Pumping Plants from a point on the Sacramento River up-
21a
stream from both the point of salt water intrusion and the point
where the polluted waters of the San Joaquin River join the
Sacramento River and thereby to ensure that saline and
polluted water in the Delta does not enter the pumps of the
Tracy Pumping Plant or the Delta Pumping Plant.
29. The State of California and Bureau of Reclamation
have expended public funds in the millions of dollars for the
engineering design of the Peripheral Canal and have com-
menced excavation or propose to commence excavation for the
Peripheral Canal in the near future. The State of California has
approved and authorized the construction of the Peripheral
Canal and the Department of the Interior has submitted to
Congress a recommendation that the federal government
participate in the financing and construction thereof. The State
of California, through its Resources Agency and Department of
Water Resources has publicized its position that it will proceed
with construction of the Peripheral Canal regardless whether
federal participation is authorized. The Task Force appointed
to recommend an Environmental Protection Agency position on
water quality in the Delta has submitted a preliminary report
concluding that the Peripheral Canal, as now contemplated,
should not be constructed.
East Side Canal
30. The Bureau of Reclamation further proposes to divert
an additional 2,500,000 acre-feet of water annually from the
Sacramento and San Joaquin Rivers and their tributaries by
means of a proposed canal, to be known as the East Side Canal,
reservoirs, pumping plants and other related facilities, all of
which are referred to collectively herein as the East Side Canal,
the construction of which has commenced or is about to
commence.
San Luis Drain
31. The Bureau of Reclamation has commenced the
construction of a facility known as the “San Luis Drain” for the
purpose of collecting water drained from agricultural lands and
7
22a
other wastes in the San Joaquin Valley and transmitting this
water to the Delta where it will be deposited to flow thence into
San Francisco Bay. The water deposited by this means in the
Delta and San Francisco Bay will be so polluted with pesticides,
herbicides and other wastes as to be unfit even for irrigation.
The San Luis Drain will consist primarily of a canal 188 miles
in length and related facilities for the collection of waste waters
and the depositing of such waters into the Delta.
Effects of Diversion of Water from
The Sacramento and San Joaquin Rivers
32. The proposed diversions of water from the Sacramento
and San Joaquin Rivers by means of the Peripheral Canal,
Delta Pumping Plant, Tracy Pumping Plant and East Side
Canal will substantially reduce the flow of water in the
Sacramento River and from the Sacramento River into San
Francisco Bay. At the present time, the operation of the Tracy
Pumping Plant and the partially competed Delta Pumping
Plant causes a reversal of the direction of flow in the Delta
thereby causing salt water in the lower reaches of the Delta to
intrude further upstream than such intrusion otherwise would
reach and adversely affecting agricultural property in the Delta
region and recreational and esthetic enjoyment of the Delta.
33. The resulting reduction in the flow of water into San
Francisco Bay will delay and reduce the flusing of wastes and
pollution from San Francisco Bay and thereby cause and result
in an increase in the pollution of San Francisco Bay Waters.
34. The diversions of water referred to herein will alter the
currents, water levels and volumes of water flow in the Sacra-
mento River, the San Joaquin River and the Sacramento-San
Joaquin Delta and thereby directly affect navigation in said
waters and the operation in said waters of pleasure boats, ships
and other vessels.
23a
35. The diversion of water proposed by the State of
California and Bureau of Reclamation wil! increase the salinity
of the Sacramento River and Delta and will thereby alter and
adversely affect marine life and the habitat of migratory birds
in said waters and in wetlands, marshes and other adjacent
areas.
36. The diversions of water from the Sacramento River
and its tributaries commenced and contemplated by defendants
will, unless restrained, cause substantial and irreparable injury
to marine life, plant and animal life, wild fowl and recreation in
the Sacramento River, the Delta, San Joaquin River, San
Francisco Bay and adjoining waters of the Pacific Ocean and
would cause a substantial increase in the pollution of all of said
waters.
27. The acts of defendants complained of herein, the
construction and operation of the Peripheral Canal, Delta
Pumping Plant, Tracy Pumping Plant, East Side Canal and San
Luis Drain, the diversion of water proposed by the defendants
and the dumping of agricultural and industrial wastes into the
Delta by means of the San Luis Drain as proposed by
defendants will cause substantial and irreparable injury to the
plaintiffs and to millions of people who reside in the area of the
waters referred to herein and who use said waters for recreation
and esthetic enjoyment, many of whom are members of
plaintiffs Sierra Club and Friends of the Earth and look to said
organizations to protect their interest in the preservation and
conservation of those waters and the fish, wild life and other
marine life which have their habitat in and around those
waters.
FIRST CLAIM FOR RELIEF
The Rivers and Harbors Act of 1899
38. Plaintiffs refer to and by this reference incorporate
herein paragraphs | through 38 of the complaint.
—_—
24a
39. The construction, commencement of construction, or
operation of the Peripheral Canal, the Delta Pumping Plant,
the San Luis Drain, the East Side Canal or the Tracy Pumping
Plant is, or would be, unlawful until such time as the locations
and plans of said facilities are submitted to and approved by
Congress, the Chief of Engineers of the United States Army
Corps of Engineers and the Secretary of the Army pursuant to
Section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C.
§ 401, which section states:
It shall not be lawful to construct or commence the
construction of any bridge, dam, dike, or causeway
over or in any port roadstead, haven, harbor, canal,
navigable river, or other navigable water of the
United States until the consent of Congress to the
building of such structures shall have been obtained
and until the plans for the same shall have been
submitted to and approved by the Chief of Engineers
and by the Secretary of the Army: Provided, that
such structure may be built under authority of the
legislature of a State across rivers and other water-
ways the navigable portions of which lie wholly
within the limits of a single State, provided the
location and plans thereof are submitted to and
approved by the Chief of Engineers and by the
Secretary of the Army before construction is com-
menced: And provided further, that when plans for
any bridge or other structure have been approved by
the Chief of Engineers and by the Secretary of the
Army, it shall not be lawful to deviate from such
plans either before or after completion of the struc-
ture unless the modification of said plans has pre-
viously been submitted to and recieved the approval
of the Chief of Engineers and of the Secretary of the
Army.
25a
40. The Sacramento River, the Sacramento-San Joaquin
Delta, the San Joaquin River and San Francisco Bay constitute
navigable waters within the meaning of the River and Harbors
Act of 1899.
41. Neither the locations nor the plans of the Peripheral
Canal, East Side Canal, San Luis Drain, Tracy Pumping Plant
or Delta Pumping Plant have been submitted to or approved by
Congress, the Chief of Engineers of the United States Army
Corps of Engineers or by the Secretary of the Army.
42. The construction of the Peripheral Canal, East Side
Canal, San Luis Drain, Tracy Pumping Plant or Delta Pumping
Plant would each constitute or require the construction of a
bridge, dam, dike, or causeway Over or in a port, roadstead,
haven, harbor, canal, navigable river or other navigable water
of the United States. Specifically, each of said facilities requires
the construction of openings in dikes adjoining the Sacramento
River or the Delta to permit the inflow of water, in the case of
the East Side Canal, the Peripheral Canal, Tracy Pumping
Plant and Delta Pumping Plant, or the outflow of water in the
case of the San Luis Drain. The operation of each of said
facilities would cause or result in the diversion of water from or
the discharge of water into navigable water of the United States
which diversion and discharge are unlawful in the absence of
the approval of Congress, the Secretary of the Army and Chief
of Engineers required by the Rivers and Harbors Act of 1899 as
aforesaid.
43. The building or commencement of the building of or
the operation of the Peripheral Canal, East Side Canal, San
Luis Drain, Delta Pumping Plant or Tracy Pumping Plant is
further made unlawful by Section 10 of the Rivers and Harbors
Act of 1899, 33 U.S.C.A. § 403, which section provides as
follows:
“The creation of any obstruction not affirmatively
authorized by Congress, to the navigable capacity of
any of the waters of the United States is prohibited;
26a
and it shall not be lawful to build or commence the
building of any wharf, pier, dolphin, boom, weir,
breakwater, bulknead, jetty, or other structures in
any port, roadstead, haven, harbor, canal, navigable |
river, or other water of the United States outside
established harbor lines, or where no harbor lines
have been established, except on plans recommended
by the Chief of Engineers and authorized by the
Secretary of the Army; and it shall not be lawful to
excavate or fill, or in any manner to alter or modify
the course, location, condition, or capacity of, any
port, roadstead, haven, harbor, canal, lake, harbor of
refuge, or inclosure within the limits of any break-
water, or of the channel of any navigable water of the
United States, unless the work has been recommend-
ed by the Chief of Engineers and authorized by the
Secretary of the Army prior to beginning the same.”
44. The construction of the Peripheral Canal, Delta
Pumping Plant, San Luis Drain, East Side Canal, or Tracy
Pumping Plant would each require or constitute the creation of
an obstruction to the navigable capacity of the waters of the
United States, to wit, the waters of the Sacramento River, the
Sacramento-San Joaquin Delta, the San Joaquin River, and San
Francisco Bay, and therefore would be or is in substantial
violation of the provisions of Section 403 of the Rivers and
Harbors Act of 1899 and is in excess of the statutory powers
and authority of defendants to the detriment and irreparable
harm of plaintiffs.
45. The building or commencement of the building of the
Peripheral Canal, Delta Pumping Plant, East Side Canal, San
Luis Drain, or Tracy Pumping Plant would each require or
constitute the building or commencement of the building of a
wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty
or other structure in a port, roadstead, haven, harbor, canal,
navigable river, or other water of the United States and is or
would be unlawful pursuant to Section 403 of the Rivers and
a
27a
Harbors Act of 1899 unless and until such time as the plans
thereof have been affirmatively authorized by Congress, recom-
mended by the Chief of Engineers of the United States Army
Corps of Engineers and authorized by the Secretary of the
Army.
46. The construction or operation of the Peripheral Canal,
Delta Pumping Plant, San Luis Drain, East Side Canal and
Tracy Pumping Plant would or did each have the effect of
altering or modifying the course, location, condition and capa-
city of the channels of navigable waters of the United States, to
wit, the Sacramento River, the Delta, the San Joaquin River
and San Francisco Bay, and is therefore unlawful pursuant to
Section 403 of the Rivers and Harbors Act of 1899 because such
work has not been affirmatively authorized by Congress, recom-
mended by the Chief of Engineers of the United States Army
Corps of Engineers and authorized by the Secretary of the
Army. Specifically, each of said facilities, by diverting water
from or discharging water into said navigable waters, or waters
of the United States, would alter or modify the direction,
quantity and rate of flow of said navigable waters. The
continuing and substantial destructive alteration of the Delta
and San Francisco Bay environment resulting from the oper-
ation of said failities by the State of California and Bureau of
Reclamation is in violation of their statutory jurisdiction and
authority and is detrimental to the rights and interests of the
plaintiffs. The operation of the Tracy Pumping Plant and Delta
Pumping Plant has, prior to the commencement of this action,
caused reversals of the normal direction of the flow in said
navigable waters and has reduced the level of said water below
normal and customary levels, which reversals of flow and
reduction in water levels has caused direct damage to fish and
wild life and the recreational capacity of the Delta region. The
Peripheral Canal would itself constitute a substantial alteration
and modification of the navigable waters of the Sacramento
River.
,
28a
47. Congress has not approved the diversions of water
from and discharge of water into navigable waters of the
United States, the alteration and modification of the course,
location, condition and capacity of said waters, or the obstruc-
tion to the navigable capacity of said waters, which would be
caused by or result from the construction or operation of the
Peripheral Canal, Tracy Pumping Plant, Delta Pumping Plant,
San Luis Drain or East Side Canal.
48. The Chief of Engineers has not recommended and the
Secretary of the Army has not approved the diversions of water
from and discharge of water into navigable waters of the
United States, the alteration and modification of the course,
location, condition and capacity of said waters, or the obstruc-
tions to the navigable capacity of said waters which would be
caused by or result from the construction or operation of the
Peripheral Canal, Tracy Pumping Plant, Delta Pumping Plant,
San Luis Drain or East Side Canal or the plans therefor.
SECOND CLAIM FOR RELIEF
49. Plaintiffs refer to and by this reference incorporate
herein paragraphs 1 through 48 of the complaint.
50. Section 13 of the Rivers and Harbors Act of 1899, 33
U.S.C.A. § 407, frequently referred to as the “Refuse Act”,
provides as follows:
“It shall not be lawful to throw, discharge, or deposit,
or cause, suffer or procure to be thrown, discharged,
or deposited either from or out of any ship, barge or
other floating craft of any kind, or from the shore,
wharf, manufacturing establishment or mill of any
kind, any refuse matter of any kind or description
whatever other than that flowing from streets and
sewers and passing therefrom in a liquid state, into
any navigable water of the United States or into any
tributary of any navigable water from which the
29a
same shall float or be washed into such navigable
water; and it shall not be lawful to deposit or cause,
suffer or procure to be deposited material of any kind
in any place on the bank of any navigable water, or
on the bank of any tributary or any navigable water,
where the same shall be liable to be washed into such
navigable water, either by ordinary or high tides, or
by storms or floods or otherwise, whereby navigation
shall or may be impeded or obstructed: Provided that
nothing herein contained shall extend to, apply to or
prohibit the operations in connection with the im-
provement of navigable waters or construction of
public works, considered necessary and proper by the
United States officers supervising such improvement
or public works: And provided further that the Secre-
tary of the Army, whenever in the judgment of the
Chief of Engineers anchorage and navigation will not
be injured thereby, may permit the deposit of any
material above mentioned in navigable waters,
within limits to be defined and under conditions to be
prescribed by him, provided application is made to
him prior to depositing such material; and whenever
any permit is so granted the conditions thereof shall
be strictly complied with, and any violation thereof
shall be unlawful.”
51. The construction and operation of the San Luis Drain
will result in the discharge into navigable waters of the United
States of polluted water, pesticides, herbicides and agricultural
and other wastes in violation of said Section 13 of the Rivers
and Harbors Act of 1899, and is in substantial violation of the .
statutory jurisdiction and authority of the Bureau of Reclama-
tion, defendants RoGers C. B. MorTON and GILBERT G. STAMM
and the other defendants herein and is detrimental to the rights
and interests of plaintiffs. .
30a
THIRD CLAIM FOR RELIEF
Fish and Wildlife Coordination Act
52. Plaintiffs refer to and by this reference incorporate
herein paragraphs | through 51 of the complaint.
53. The impounding or diversion of the waters of the
Sacramento or San Joaquin Rivers by means of the Tracy
Pumping Plant, Delta Pumping Plant, East Side Canal or
Peripheral Canal is made unlawful by the Fish and Wildlife
Coordination Act, 16 U.S.C.A. §§ 661-666c, specifically Section
2 thereof, 16 U.S.C.A. § 662, which prohibits such impounding
or diversion by any department or agency of the United States
or by any public or private agency unless such department or
agency shall have first consulted with the United States Fish
and Wildlife Service, Department of the Interior, with a view to
the conservation of wildlife resources by preventing loss of and
damage to such resources.
54. The construction or operation of the Tracy Pumping
Plant, Delta Pumping Plant, East Side Canal or Peripheral
Canal will each constitute or result in the impounding or
diversion of waters of the Sacramento or San Joaquin Rivers.
Specifically, by means of said facilities, defendants propose to
impound and divert in excess of seven million acre feet of water
per year from said rivers and their tributaries.
55. Neither the State of California nor the Bureau of
Reclamation has consulted with the United States Fish and
Wildlife Service, Department of the Interior, with a view to the
conservation of wildlife resources of preventing loss of and
damage to such resources in the manner required by the Fish
and Wildlife Coordination Act.
56. The Fish and Wildlife Coordination Act further
provides in Section 2(b) thereof, 16 U.S.C.A. § 662(b), that
the reports and recommendations of the Secretary of the
Interior on the wildlife aspects of such projects and any report
of the head of the State agency exercising administration over
3la
the wildlife resources of the State, based on surveys and
investigations conducted by the United States Fish and Wildlife
Service and such State agency for the purpose of determining
the possible damage to wildlife resources and for the purpose of
determining means and measures that should be adopted to
prevent the loss of, or damage to such wildlife resources, shall
be made an integral part of any report prepared or submitted
by any agency of the Federal Government responsible for
engineering surveys and construction of such projects when
such reports are presented to Congress or to any agency or
person having the authority or the power, by administrative
action or otherwise, (1) to authorize the construction of water-
resource development projects or (2) to approve a report on
the modification or supplementation of plans for previously
authorized projects. Said section further provides that the
recommendations of the Secretary of the Interior shall be as
specific as is practicable and shall describe the damage to
wildlife attributable to the project and the measures proposed
for mitigating or compensating for these damages.
57. The Secretary of the Interior has made no report or
recommendaticn pursuant to and in the manner required by
said Section 2(b) of the Fish and Wildlife Coordination Act,
and no such report has been made a part of any report
prepared or submitted to the Congress, the Secretary of the
Army, the Corps of Engineers of the United States Army or any
other agency of the Federal Government as required by said
Section 2(b).
58. The Fish and Wildlife Coordination Act further
provides, in Section 2(b) thereof, that the project plan for any
diversion or impounding of waters shall include “such justifi-
able means and measures for wildlife purposes as the reporting
agency finds should be adopted to obtain maximum overall
project benefits.”
32a
59. The project plans of the Peripheral Canal, Delta
Pumping Plant, East Side Canal, San Luis Drain and Tracy
Pumping Plan in no instance include such justifiable means and
measures for wildlife purposes as are required by said Section
2(b) of the Fish and Wildlife Coordination Act and no studies
or reports have been made by any agency of the California state
government or of the federal government sufficient to permit a
determination to be made of the means and measures necessary
to prevent loss of or damage to wildlife resources as the result
of the construction or operation of said facilities.
60. The existing and proposed impounding and diversion
of the waters of the Sacramento and San Joaquin Rivers is
further made unlawful by Section 3 of the Fish and Wildlife
Coordination Act, 16 U.S.C.A. § 663, by reason of the failure of
the State of California and the Department of the Interior to
make adequate provisions for the use of said facilities for the
conservation, maintenance and management of wildlife re-
sources as required by said Section 3 of the Fish and Wildlife
Coordination Act, subsection (a) of which provides:
“Subject to the exceptions prescribed in section
662(h) of this title, whenever the waters of any
stream or other body of water are impoundea, diver-
ted, the channel deepened, or the stream or other
body of water otherwise controlled or modified for
any purpose whatever, including navigation and
drainage, by any department or agency of the United
States, adequate provision, consistent with the pri-
mary purposes of such impoundment, diversion or
other control, shall be made for the use thereof,
together with any areas of land, water, or interests
therein, acquired or administered by a Federal
agency in connection therewith, for the conservation,
maintenance and management of wildlife resources
thereof, and its habitat thereon, including the devel-
opment and improvement of such wildlife resources
pursuant to the provisions of section 662 of this title.”
33a
61. The State of California and the Departmen* of the
Interior have not made adequate provisions for the use of the
Peripheral Canal, East Side Canal, San Luis Drain, Delta
Pumping Plant and Tracy Pumping Plant for the conservation,
maintenance and management of wildlife resources affected by
said facilities in the manner required by said Section 3 of the
Fish and Wildlife Coordination Act.
62. For the reasons set forth in paragraphs 53 through 62
above, the construction, commencement of construction, oper-
ation or continued operation of the Peripheral Canal, East Side
Canal, San Luis Drain, Delta Pumping Plant or Tracy Pumping
Plant is and will be unlawful until such time as the defendants
(1) have consulted with the United States Fish and Wildlife
Service, Department of the Interior in the manner required by
the Fish and Wildlife Coordination Act, (2) have presented to
the Congress reports and recommendations of the Secretary of
the Interior on the wildlife aspects of said facilities including
(a) a report of the head of the agency of the State of California
exercising administration over the wildlife resources of the State
of California and (b) a specific description of “such justifiable
means and measures for wildlife purposes” as should be
adopted to achieve compliance with the national policies set
forth in and the requirements of the Fish and Wildlife Coordi-
nation Act, and (3) have made adequate provision for the
conservation, maintenance and management of wildlife re-
sources of the Sacramento and San Joaquin Rivers, the Delta,
San Francisco Bay and the adjoining waters of the Pacific
Ocean. The continuing construction or operation of said
facilities or approval thereof by the defendants and each of
them is in violation of their statutory jurisdiction and authority
and is detrimental to the rights and interests of plaintiffs.
FOURTH CLAIM FOR RELIEF
National Environmental Policy Act of 1969
63. Plaintiffs refer to and by this reference incorporate
herein paragraphs | through 62 of the complaint.
34a
64. The National Environmental Policy Act of 1969
(“NEPA”) Public Law 91-190, 83 Stat. 852, specifically Sec-
tion 101 thereof, declares a national policy of encouraging
productive and enjoyable harmony between man and his
environment, to promote efforts which will prevent or eliminate
damage to the environment and biosphere and stimulate the
health and welfare of man, and to enrich the understanding of
the ecological systems and natural resources important to the
Nation.
65. Section 101 of NEPA further provides that it is the
responsibility of the Federal Government to use all practicable
means, consistent with other essential considerations of national
policy, to improve and coordinate Federal plans, functions,
programs and resources to the end that the Nation may
(1) fulfill the responsibilities of each generation as
trustee of the environment for succeeding generations;
(2) assure for all Americans safe, healthful productive
and esthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the
environment without degradation, risk to health or safety,
or other undesirable and unintended consequences,
(4) preserve important, historic, cultural and natural
aspects of our national heritage, and maintain, wherever
possible an environment which supports diversity and
variety of individual choice;
(5) achieve a balance between population and re-
source use which will permit high standards of living and a
wide sharing of life’s amenities; and
(6) enhance the quality of renewable resources and
approach the maximum attainable recycling of depletable
resources.
66. Section 102 of NEPA provides that to the fullest extent
possible the policies, regulations and public laws of the United
35a
States shall be interpreted and administered in accordance with
the policies set forth in NEPA and that all agencies of the
federal government shall:
(a) utilize a systematic, interdisciplinary approach
which will insure the integrated use of the natural and
social sciences and the environmental design arts in plan-
ning and in decision-making which may have an impact on
man’s environment;
(b) identify and develop methods and procedures, in
consultation with the Council of Environmental Quality
established by title II of this Act, which will insure that
presently unquantified environmental amenities and values
may be given appropriate consideration in decision making
along with economic and technical considerations;
(c) include in every recommendation or report on
proposals for legislation and other major Federal actions
significantly affecting the quality of the human environ-
ment, a detailed statement by the responsible official on
(i) the environmental impact of the proposed
action,
(ii) any adverse environmental effects which
cannot be avoided should the proposal be imple-
mented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term
uses of man’s environment and the maintenance and
enhancement of long-term productivity, and
(v) any irreversible and irretrievable com-
mitments of resources which would be involved in the
proposed action should it be implemented.
67. The environmental impact statement prepared for the
San Luis Drain is inadequate and does not meet the statutory
requirements, in that it fails to describe in detail the
36a
environmental impact, adverse environmental effects, long-term
and short-term balance of use and productivity, irreversible and
irretrievable commitments of resources and alternatives to the
San Luis Drain. The location and manner of discharge of the
San Luis Drain are currently being determined or soon will be
determined by the Secretary of the Interior. This determination
must be made in accordance with the policies set forth in
NEPA, Fish and Wildlife Coordination Act and Estuarine
Areas Act and must be preceded by preparation of a statement
[Environmental Impact Statement”] in compliance with Sec-
tion 102(c) of NEPA, detailing the environmental effects of
and the alternatives to further construction of the Drain and the
proposed discharges into it.
68. Neither the Corps of Engineers nor the Bureau of
Reclamation has prepared a detailed statement as required by
Section 102(c) of NEPA with respect to water being diverted,
at past and present levels, by means of the Tracy Pumping
Plant, Delta Pumping Plant, East Side Canal or Peripheral
Canah Said detailed statement must contain information on the
above project or proposals with respect to environmental
impact, adverse environmental effects, long-term and short-
term balance of use and productivity, irreversible and irretriev-
able commitments of resources and alternatives to those proj-
ects or proposals.
69. Neither the Corps of Engineers nor the Bureau of
Reclamation has prepared a detailed statement with respect to
environmental impact, adverse environmental effects, long-term
and short-term balance, irreversible and irretrievable com-
mitments of resources and alternatives to the proposals which
would result from diversions of larger quantities of water than
are presently being diverted by means of the Tracy Pumping
Plant, Delta Pumping Plant, East Side Canal or Peripheral
Canal. Additionally, no statement has been prepared advising
Congress of the environmental effects which would result from
congressional authorization of different levels of diversion.
37a
70. The existing and proposed diversions of water from
the Sacramento and San Joaquin Rivers by means of the
Peripheral Canal, Delta Pumping Plant, Tracy Pumping Plant
and East Side Canal and the discharge of polluted water and
wastes in the Delta and San Francisco Bay by means of the San
Luis Drain contravene the national policy set forth in NEPA
and is in substantial violation of the statutory jurisdiction,
authority and power of defendants to the detriment of the rights
and interest of plaintiffs.
FIFTH CLAIM FOR RELIEF
71. Plaintiffs refer to and by this reference incorporate
herein paragraphs | through 70 of the complaint.
Estuarine Areas Act
72. The Estuarine Areas Act, 16 U.S.C. §§ 1221 et seq.
establishes that it shall be the public policy of the United States
and of Congress to protect, conserve and restore the estuaries of
the United States.
73. The San Francisco Bay and the Sacramento River
Delta are estuaries of the United States.
74. The maintenance of an adequate flow of water at all
times in the Sacramento River and from the Sacramento River
into San Francisco Bay is essential to the protection, con-
servation and restoration of San Francisco Bay and the Delta.
75. The diversion of water from the Sacramento River or
the San Joaquin River, whether by means of the Peripheral
Canal, the Delta Pumping Plant, the East Side Canal, the Tracy
Pumping Plant or otherwise, and the deposit of polluted water
in the Delta by means of the San Luis Drain, hinders and
prevents adequate protection, conservation and restoration of
San Francisco Bay and the Delta.
38a
Federal Water Pollution Control Act
76. The Federal Water Pollution Control Act, 62 Stat. 115
(1948), as amended, 33 U.S.C. §§ 1151 et seq., establishes a
national policy for the prevention, control and abatement of
water pollution and the enhancement of the quality and value
of the water resources of the United States.
77. Section 1171(a) of the Federal Water Pollution
Control Act provides that “Each Federal agency... . having
jurisdiction over any real property or facility, or engaged in any
Federal public works activity of any kind shall, consistent with
the paramount interest of the United States as determined by
the President, insure compliance with applicable water quality
standards and the purposes of this chapter in the administration
of such property, facility or activity.”
78. The President of the United States has elaborated on
federal policy with regard to water pollution by issuing Execu-
tive Order 11507, 35 F.R. 2573 (1970), which states:
It is the intent of this order that the Federal Govern-
ment in the design, operation, and maintenance of its
facilities shall provide leadership in the nationwide
effort to protect and enhance the quality of our air
and water resources.
79. The construction or operation of the Peripheral Canal,
East Side Canal, San Luis Drain, Delta Pumping Plant, or
Tracy Pumping Plant is or would be contrary to the national
policy established by the Federal Water Pollution Control Act
in that the diversion of water in connection with the construc-
tion or operation of any of said facilities would contribute to
and cause an increase in the pollution of the Sacramento-San
Joaquin Delta and San Francisco Bay.
80. The Secretary of the Interior has violated the policies
expressed in the Federal Water Pollution Control Act and
Executive Order 11507 and has failed to discharge his duties
pursuant thereto in that he has failed to limit or modify the
39a
operation or proposed operation of the facilities of the Central
Valley Project so as to comply with the policies and require-
ments of the Federal Water Pollution Control Act and Execu-
tive Order 11507.
Failure of Defendants to Comply with
Federal Statutes and National Policies
ee
~ 81. Defendants, WILLIAM C. GRIBBLE, JR., as Chief of
Engineers of the Corps of Engineers of the United States Army,
HOWARD H. CALLAWAY, as Secretary of the Army, and
GEORGE B. FINK, as Division Engineer, are authorized and
empowered to enforce compliance with the national policies set
forth in the Estuarine Areas Act, the Federal Water Pollution
Control Act, the Fish and Wildlife Coordination Act and the
National Environmental Policy Act of 1969, with respect to
structures and activities which require the approval of the Chief
of Engineers pursuant to the Rivers and Harbors Act of 1899.
82. Said defendants cannot authorize, approve or recom-
mend the creation of any obstruction to the navigable capacity
of, any alteration or modification of the course, location,
condition or capacity of, the diversion of waters from, the
discharging of waters into or the impounding of the navigable
or other waters of the United States in violation of or without
giving due regard to the requirements of and the national
_ policies expressed in the Estuarine Areas Act, the Federal
. Water Pollution Control Act, the Fish and Wildlife Coordina-
tion Act, and the National Environmental Policy Act of 1969.
83. Said defendants cannot authorize, approve or recom-
mend the construction or operation of the Peripheral Canal,
Delta Pumping Plant, Tracy Pumping Plant, East Side Canal or
San Luis Drain until such time as they have been furnished with
the following in compliance with the policies and requirements
of the Estuarine Areas Act, the Federal Water Pollution Control
Act, the Fish and Wildlife Coordination Act, and the
Environmental Policy Act of 1969:
40a
(a) A report of the Secretary of the Interior as
required by the Fish and Wildlife Coordination Act, on the
wildlife aspects of such projects based on surveys and
investigations conducted by the United States Fish and
Wildlife Service and the California Department of Fish
and Game for the purpose of determining the extent of
damage to wildlife resources which would result from such
projects;
(b) A report of the Secretary of the Interior, as
required by the Fish and Wildlife Coordination Act, on the
means and measures which would have to be adopted to
prevent the loss of or damage to wildlife resources in the
San Joaquin and Sacramento Rivers, the Delta, San Fran-
cisco Bay and the adjoining portions of the Pacific Ocean
as the result of the construction and operation of said
facilities.
(c) A report of the Secretary of the Interior pursuant
to the National Environmental Policy Act of 1969 on the
environmental impact, the adverse environmental effects,
the alternatives to, and the irreversible and irretrievable
commitments of resources which would result from the
construction and operation of the Peripheral Canal, Delta
Pumping Plant, Tracy Pumping Plant, East Side Canal and
San Luis Drain.
84. In seeking any approval of Congress of the construc-
tion or operation of the Peripheral Canal, Tracy Pumping
Plant, Delta Pumping Plant, San Luis Drain or East Side Canal,
defendants GitBert G. STAMM, RoGers C. B. MorTON, STATE
OF CALIFORNIA, NoRMAN B. LiverRMORE, JR. and JOHN R.
TEERINK are required to submit to Congress the reports of the
Secretary of the Interior referred to in the preceding paragraph
of this complaint and to disclose to Congress the extent to and
manner in which said construction or operation contravenes the
policies set forth in and the requirements of the Estuarine Areas
Act, the Federal Water Pollution Control Act, the Fish and
Wildlife Coordination Act and the Environmental Policy Act of
4la
1960, all of which said defendants have failed to do, as a result
whereof the operation, construction or continued construction
of said facilities is unlawful.
85. The operation, construction, continued operation or
construction or the approval thereof by the defendants and
each and all of them is in substantial violation of their statutory
responsibilities, powers, jurisdiction and authority to the detri-
ment of the rights and interests of plaintiffs.
SIXTH CLAIM FOR RELIEF
California Environmental Quality Act of 1970
86. Plaintiffs refer to and by this reference incorporate
paragraphs | through 85 of the complaint.
87. The California Environmental Quality Act of 1970
(“CEQA”), California Public Resources Code Division 10,
specifically Chapter 1 thereof, declares a state policy of devel-
oping and maintaining a high-quality environment now and in
the future, providing the people of California with clean air and
water, preventing elimination of fish and wildlife as a result of
man’s activities, ensuring that long-term protection of the
environment be the juiding criterion in public decisions, requir-
ing governmental agencies at all levels to develop standards
and procedures necessary to protect environmental quality and
requiring governmental agencies to consider qualitative factors
as well as economic and technical factors, long-term versus
short-term benefits and costs and alternatives to proposed
actions affecting the environment.
88. Section 2100 of the California Public Resources Code
provides further that it is the state government’s responsibility
to take immediate steps and to coordinate actions of various
state agencies to preserve the health and safety of the people of
the state, that each citizen bears a responsibility to contribute to
the overall environmental policy and that all agencies which
42a
regulate the activities of people and corporations within the
state and public agencies, whose activities affect the quality of
the environment, shall, in regulating such activities, give major
consideration to the prevention of damages to the environment.
89. In order that the above policy and intent may be
properly effectuated Section 21100 of the Public Resources
Code provides as follows:
“All state agencies, boards, and commissions shall
prepare, or cause to be prepared by contract, and
certify the completion of an environmental impact
report on any project they propose to carry out or
approve which may have a significant effect on the
environment. Such a report shall include a detailed
statement setting forth the following:
(a) The environmental impact of the proposed
action.
(b) Any adverse environmental effects which
cannot be avoided if the proposal is implemented.
(c) Mitigation measures proposed to minimize
the impact.
(d) Alternatives to the proposed action.
(e) The relationship between short-term uses of
man’s environment and the maintenance and
enhancement of long-term productivity.
(f) Any irreversible environmental changes
which would be involved in the proposed action
should it be implemented.
(g) The growth-inducing impact of the pro-
posed action.”
90. Section 21101 further provides:
“In regard to any proposed federal project within this
state which may have a significant effect on the
43a
environment and on which the state officially com-
ments, the state officials responsible for such com-
ments shall include in their report a detailed state-
ment setting forth the matters specified in Section
21100 prior to transmitting the comments of the state
to the federal government. No report shall be
transmitted to the federal government unless it in-
cludes such a detailed statement as to the matters
specified in Section 21100.”
91. Section 21102 provides that no state agency, board or
commission shall request funds, nor shall funds be authorized,
if the project for which the funds are contemplated falls under
the provisions of sections of the Act requiring environmental
impact report, if the request for funds is not accompanied by an
environmental impact report.
92. The Delta Pumping Plant, Peripheral Canal, East Side
Canal, Tracy Pumping Plant and San Luis Drain are projects
within the State of California, which have a significant effect on
the environment.
93. The Delta Pumping Plant, Peripheral Canal, East Side
Canal, Tracy Pumping Plant and San Luis Drain are “Projects”
within the meaning of CEQA and therefore subject to its
provisions.
94. The existing and proposed diversions of water to and
from the Sacramento and San Joaquin Rivers by means of the
Delta Pumping Plant, Peripheral Canal, East Side Canal, Tracy
Pumping Plant or San Luis Drain are in substantial violation of
the statutory jurisdiction, authority and power of the defend-
ants to the detriment of the rights and interests of plaintiffs.
Failure of State Defendants to Comply
With State Statutes and Policies
95. Defendants, STATE OF CALIFORNIA, NORMAN B. Liver-
MORE, JrR., as Secretary for Resources of the State of California
and JOHN R. TEERINK, as Director of the Department of Water
44a
Resources for the State of California, are authorized, empower-
ed, and required by law to enforce compliance with the state
policies set forth in the California Environmental Quality Act of
1970, with respect to the Delta Pumping Plant, the Peripheral
Canal, the East Side Canal, the Tracy Pumping Plant and the
San Luis Drain.
96. Said defendants have fail J to prepare or cause to
have prepared environmental impact reports for the Delta
Pumping Plant and Peripheral Canal and are therefore in
substantial violation of their statutory authority to the detriment
of the rights and interests of plaintiffs.
97. Said defendants have failed to include in any report
within the meaning of Section 21101 a detailed statement
setting forth the matters specified in Section 21100 of the Public
Resources Code, as regards the Tracy Pumping Plant, East Side
Canal or San Luis Drain, all as required by Section 21101.
98. By reason of said defendants’ failure to prepare or
cause to have prepared environmental impact reports on the
Delta Pumping Plant or Peripheral Canal and said defendants’
failure to comply with the provisions of Section 21101 of the
Public Resources Code as regards the Tracy Pumping Plant,
East Side Canal or San Luis Drain, the operation or construc-
tion or continued operation or construction or any State of
California participation in any or all of the projects here-
inbefore mentioned is unlawful.
Basis for Declaratory and Injunctive Relief
99. A present controversy exists between plaintiffs and
defendants in that defendants propose to proceed with the
operation of the Tracy Pumping Plant, the completion and
continued operation of the Delta Pumping Plant, and the
construction of the Peripheral Canal and East Side Canal and
San Luis Drain without obtaining the consent of Congress and
the approvals of the Secretary of the Army and Chief of
45a
Engineers which plaintiffs herein claim are required by law and
without making due provision for the protection, preservation
or conservation of the waters of San Francisco Bay, the
Sacramento-San Joaquin Delta, the adjoining waters of the
Pacific Ocean, the Sacramento and San Joaquin Rivers, the
marshes, beaches and wetlands adjacent to these waters, and
the marine life, plant life and wildlife which are dependent
thereon and without complying with the requirements of law
referred to herein.
100. Plaintiffs have no adequate remedy at law in that a
money judgment could not compensate for the inquiry which
would be suffered by the plaintiffs and by the class of persons
represented by plaintiffs if defendants proceed with the activi-
ties plaintiffs seek to enjoin and cause substantial degradation
of the quality of water in San Francisco Bay, the Sacramento-
San 'eaquin Delta, adjacent waters of the Pacific Ocean and the
Sacramento and San Joaquin Rivers and further damage and
endanger the future of the various species of marine life and
wildlife which are dependent in whole or in part on the quality
and flows of said waters.
101. The injury caused by said degradation of water
quality and the act of defendants complained of herein would
be irreparable and irreversible.
PRAYER FOR RELIEF
For the reasons set forth above, plaintiffs pray this Court to
enter judgment herein as follows:
1. Declaring and adjudging that the Rivers and
Harbors Act of 1899 makes unlawful the operation, con-
struction or commencement or continuance of construction
of the Delta Pumping Plant, Tracy Pumping Plant, Per-
ipheral Canal, San Luis Drain, or the East Side Canal until
such time as the consent and authorization of the Congress
and the approval of the Secretary of the Army and Chief of
Engineers has been obtained.
46a
2. Declaring and adjudging that construction of the
Peripheral Canal, Delta Pumping Plant, East Side Canal
and San Luis Drain cannot commence or proceed further
until such time as Congress and the Secretary of the Army
and Chief of Engineers have been provided with the
following:
(a) A report of the Secretary of the Interior, as
required by the Fish and Wildlife Coordination Act,
on the wildlife aspects of such projects based on
surveys and investigations conducted by the United
States Fish and Wildlife Service and the California
Department of Fish and Game for the purpose of
determining the extent of damage to wildlife resources
which would result from such projects;
(b) A report of the Secretary of the Interior as
required by the Fish and Wildlife Coordination Act,
on the means and measures which would have to be
adopted to prevent the loss of or damage to wildlife
resources in the San Joaquin and Sacramento Rivers,
the Delta, San Francisco Bay and the adjoining
portions of the Pacific Ocean as the result of the
construction and operation of said facilities.
(c) A report of the Secretary of the Interior
pursuant to the National Environmental Policy Act of
1969 of the environmental impact, the adverse
environmental effects, the alternatives to, and the
irreversible and_ irretrievable commitments of re-
sources which would result from the construction and
operation of the Peripheral Canal, Delta Pumping
Plant, Tracy Pumping Plant, East Side Canal and San
Luis Drain.
3. Declaring and adjudging that the Secretary of the
Army, Chief of Engineers, and the Division Engineer of
the South Pacific Division of the Corps of Engineers must
give due consideration to the requirements of and the
47a
national policy set forth in the Rivers and Harbors Act of
1899, the National Environmental Policy Act of 1969,
the Fish and Wildlife Coordination Act, the National
Estuarine Areas Act, and the Federal Water Pollution
Control Act in acting or passing upon any applications for
approval of the operation or construction of the Peripheral
Canal, Tracy Pumping Plant, Delta Pumping Plant, East
Side Canal, San Luis Drain, or any related or appurtenant
structures.
4. Enjoining the defendants from constructing or
continuing the construction of and from operating the
Peripheral Canal, Delta Pumping Plant, Tracy Pumping
Plant, East Side Canal or San Luis Drain until such time as
Congress, the Secretary of the Army, and the Chief of
Engineers have authorized the specific diversions of water
from and discharge of water into the Delta and Sacra-
mento River which would result from said construction or
operation after having been furnished the following:
(a) A report of the Secretary of the Interior as
required by the Fish and Wildlife Coordination Act,
on the wildlife aspects of such projects based on
surveys and investigations conducted by the United
States Fish and Wildlife Service and the California
Department of Fish and Game for the purpose of
determining the extent of damage to wildlife resources
which would result from such projects;
(b) A report of the Secretary of the Interior, as
required by the Fish and Wildlife Coordination Act,
on the means and measures which would have to be
adopted to prevent loss of or damage to wildlife
resources in the San Joaquin and Sacramento Rivers,
the Delta, San Francisco Bay and the adjoining
portions of the Pacific Ocean as the result of the
construction and operation of said facilities.
48a
(c) A report of the Secretary of the Interior pursuant
to the Environmental Policy Act of 1969 of the
environmental impact, the adverse environmental effects,
the alternatives to, and the irreversible and irretrievable
commitments of resources which would result from the
construction and operation of the Peripheral Canal, Delta
Pumping Plant, Tracy Pumping Plant, East Side Canal and
San Luis Drain.
5. Enjoining defendants from submitting to Congress, to
the Secretary of the Army or to the Chief of Engineers any
proposal or request for authorization or approval of the con-
struction or operation of the Peripheral Canal, Delta Pumping
Plant, Tracy Pumping Plant, East Side Canal and San Luis
Drain or any related or appurtenant structure unless such
proposal or request is accompanied by the reports required by
the Fish and Wildlife Coordination Act and the National
Environmental Policy Act of 1969 and, in the event such
proposals or requests are or have been made by any of the
defendants named herein and are not accompanied by said
reports, directing said defendant or defendants to submit said
reports to the Congress, the Secretary of the Army and the
Chief of Engineers in the shortest reasonable time.
6. Enjoining the further operation, construction or partici-
pation of the STATE OF CALIFORNIA in the Delta Pumping Plant,
the Peripheral Canal, the East Side Canal, the Tracy Pumping
Plant and the San Luis Drain until the proper state agencies
comply with the dictates of CEQA.
7. For plaintiffs’ costs of suit herein, including those costs
incurred for expert witness fees, for the reasonable attorneys’
fees of plaintiffs and for such other and further relief as the
Court may deem proper.
49a
Dated: December 21, 1973.
JOHN B. CLARK
JOHN B. BIGELOW
By JOHN B. BIGELOW
JOHN B. BIGELOW
Attorneys for Plaintiffs
SIERRA CLUB and
HANK SCHRAMM
By GARY J. NEAR
Gary J. NEAR
Attorney for Plaintiffs
FRIENDS OF THE EARTH and
WILLIAM DIXON
[Statement of Service omitted |
50a
STATE DEFENDANTS’ ANSWER
EVELLE J. YOUNGER,
Attorney General
of the State of California
CARL BORONKAY,
Assistant Attorney General
BERTRAM G. BUZZINI
- Deputy Attorney General
555 Capitol Mall, Suite 550
Sacramento, California 95814
Telephone: (916) 445-6280
Attorneys for State Defendants
UNITED STATES DISTRICT COURT
For THE NORTHERN DISTRICT OF CALIFORNIA
[Case Caption omitted |
ANSWER OF STATE DEFENDANTS
TO FIRST AMENDED COMPLAINT
Come now the defendants State of California, Norman B.
Livermore, Jr., as Secretary for Resources of the State of
California, and John R. Teerink, as Director of Water Re-
sources of the State of California, sued herein as Director of the
Department of Water Resources of the State of California,
sometimes collectively herein referred to as State defendants,
and, answering the first amended complaint on file herein,
admit, deny, and allege as follows:
FIRST DEFENSE
That the first amended complaint fails to state a claim
upon which relief may be granted.
5la
SECOND DEFENSE
That the State of California and State defendants have not
consented to be sued herein, nor has any of them.
THIRD DEFENSE
That the above entitled Court lacks jurisdiction over the
State and State defendants, and each of them.
FOURTH DEFENSE
That the Court lacks jurisdiction over the subject matter of
the first amended complaint.
FIFTH DEFENSE
That there is no Federal question or diversity of citizenship
or proper cause for declaratory relief.
SIXTH DEFENSE
That the first amended complaint herein does not state a
cause of action under Federal or State statutes.
SEVENTH DEFENSE
That the plaintiffs herein, and each of them, lack standing
to sue.
EIGHTH DEFENSE
That the plaintiffs herein, and each of them, are guilty of
laches and may not at this late date have the relief prayed, even
if it were to be assumed, but not conceded, that there were any
claim.
52a
NINTH DEFENSE
Allege that the matter in controversy is not susceptible of
evaluation and, therefore, that the State defendants deny that it
exceeds $10,000.
TENTH DEFENSE
That the first amended complaint contains no allegations
of detriment to the plaintiffs, no allegations of adverse effect
upon the plaintiffs or allegations of diversity, the State of
California not being a citizen of the United States, and the
remaining State defendants in their official capacity not being
or acting as citizens of the United States.
ELEVENTH DEFENSE
That there is no justiciable controversy stated in the first
amended complaint.
TWELFTH DEFENSE
That the motion of State defendants heretofore made and
filed and ail points and authorities and matters in support
thereof are hereby incorporated herein and made a part hereof
and that, there being no cause for relief, the first amended
complaint herein and this case, and each of them, should be
dismissed.
THIRTEENTH DEFENSE
That the gravamen and gist of the first amended complaint
is water quality in the Delta of the Sacramento and San Joaquin
Rivers, sometimes herein referred to as the Delta, and that the
plaintiffs, or some of them, are already participants in other
actions pending in the courts of the State of California.
F*
53a
FOURTEENTH DEFENSE
That there is proper cause for abstention.
FIFTEENTH DEFENSE
That the first amended complaint contains no proper cause
for class action.
SIXTEENTH DEFENSE
That the sixth claim for relief is barred by the provisions of
section 21167 of the California Public Resources Code which
provides in part as follows:
“Any action or proceeding to attack, review, set
aside, void, or annul the following acts or decisions of
a public agency on the grounds of noncompliance
with this division shall be commenced as follows:
“(a) An action or proceeding alleging that
a public agency is carrying out or has approved a
project which may have a significant effect on
the environment without having determined
whether the project may have a significant effect
on the environment shall be commenced within
180 days of the public agency’s decision to carry
out or approve the project, or, if a project is
undertaken without a formal decision by the
public agency, within 180 days after com-
mencement of the project... .”
That the decision to carry out or approve the project or the
commencement of the project all occurred more than 180 days
prior to December 27, 1973, the date when plaintiffs’ claim for
relief under California Environmental Quality Act of 1970 was
filed with the Court as the sixth claim for relief.
54a
SEVENTEENTH DEFENSE
That the California Environmental Quality Act is not
applicable to the Delta Pumping Plant nor to the California
Aqueduct for the reason that the project was planned, con-
structed, and placed into operation prior to November 23,
1970, the effective date of the Act.
EIGHTEENTH DEFENSE
That the National Environmental Policy Act is not appli-
cable to the Delta Pumping nor the California Aqueduct in that
the project was planned, constructed, and put into operation
prior to January 1, 1970, the effective date of said Act.
NINETEENTH DEFENSE
1. Answer to paragraph | of the complaint on file herein,
that State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
2. Answering paragraph 2 of the complaint on file herein, -
that State defendants deny each and every, all and singular, the
allegation therein for lack of information and belief.
3. Answering paragraph 3 of the complaint on file herein,
that State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
4. Answering paragraph 4 of the complaint on file herein,
that State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
5. Answering paragraph 5 of the complaint on file herein,
that State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
6. Answer paragraph 6 of the complaint, that State
defendants admit the allegations therein.
55a
7. Answering paragraph 7 of the complaint, that State
defendants admit the allegations therein.
8. Answering paragraph 8 of the complaint, that the State
admits the allegations therein.
9. Answering paragraph 9 of the complaint, that the
defendants admit the allegations thereof.
10. Answering paragraph 10 of the complaint, that the
defendants admit the allegations thereof.
11. Answering paragraph 11 of the complaint, that State
defendants admit that Norman B. Livermore, Jr., is the Secre-
tary iur Resources of the State of California, allege that he has
general supervision over the departments of the Resources
Agency of the State of California, allege that he is the officer in
charge of the Resources Agency of the State of California, and
deny each and every, all and singular, the remaining allegations
contained therein.
12. Answering paragraph 12 of the complaint, that State
defendants allege that John R. Teerink is the Director of Water
Resources of the State of California; that the Director of Water
Resources is the officer in charge of the Department of Water
Resources of the State of California; that the Department of
Water Resources of the State of California is one of the
departments under the general supervision of the Secretary for
Resources under the statutes therefor made and provided; and
State defendants deny each and every, all and singular, the
remaining allegations therein.
13. Answering paragraph 13 of the complaint, that State
defendants allege that in the performance of their duties and in
their operations they have complied with the applicable statutes
in such cases made and provided, and will so comply, and State
defendants deny each and every, all and singular, the remain-
ing allegations therein.
56a
14. Answering paragraph 14 of the complaint, that State
defendants, having no information on the purpose or intention
of plaintiffs herein, deny each and every, all and singular the
allegations therein for lack of information and belief; and that
State defendants deny that State defendants have caused, or
will cause, excessive diversion of water from the Sacramento
and San Joaquin Rivers, or either of them, or irreparable
damage, or any damage, or harm to any person or any
property.
15. Answering paragraph 15 of the complaint, that State
defendants admit that the Sacramento and San Joaquin Rivers
combine and drain the Central Valley of California, and deny
each and every, all and singular, the remaining allegations
therein for lack of information and belief.
16. Answering paragraph 16 of the complaint, that State
defendants admit that the Delta contains navigable waterways
which harbor fish and forms of aquatic life, and deny each and
every, all and singular, the allegations therein for lack of
information and belief.
18. Answering paragraph 18 of the complaint, that State
defendants admit that the San Francisco Bay is a body of water
affected by the tides, that waters from the Delta are discharged
ultimately into the San Francisco Bay through other bays, and
deny each and every, all and singular, the remaining allegations
therein for lack of information and belief; that State defendants
specifically deny that the San Francisco Bay is critically depend-
ent upon continued discharge of fresh water from the Delta.
19. Answering paragraph 19 of the complaint, that State
defendants deny each and every, ali and singular, the allega-
tions contained therein for lack of information and belief.
20. Answering paragraph 20 of the complaint herein, that
State defendants admit that the Burns-Porter Act was adopted
in 1959, that the Act authorized the construction of the State
Water Project, that the Project would consist of a system of
dams, canals, pumping plants, and other facilities designed to
divert water in excess of 4,000,000 acre-feet a year from places
57a
of diversion to other parts of the State of California and to
various users, that the Burns-Porter Act was submitted to and
approved by the voters of the State of California on November
8, 1960. That the State Water Project was designed to operate
in coordination with the Central Valley Project, and that some
of the essential facilities of the State Water Project are joint-use
facilities, which also constitute integral parts of the Central
Valley Project of the United States Bureau of Reclamation; and
that State defendants deny each and every, all and singular, the
remaining allegations therein.
21. Answering paragraph 21 of the complaint, that State
defendants admit that the Department of Water Resources has
entered into contracts under which it has agreed to use its best
efforts to deliver 4.23 million acre-feet of water annually, that
the primary purchasers of water are the Kern County Water
Agency, which has agreed to purchase 1,153,400 acre-feet
annually, and the Metropolitan Water District of Southern
California, which has entered into contracts for 2,011,500 acre-
feet a year; and that State defendants deny each and every, all
and singular, the remaining allegations therein.
22. Answering paragraph 22 of the complaint, that State
defendants allege that initially the State Water Project will
obtain substantially all of that portion of the 4.2 million acre-
feet required annually by said Project from the Sacramento and
San Joaquin Rivers and their tributaries, that among the
facilities completed or partially constructed for this purpose are
the Oroville Dam on the Feather River and the Delta Pumping
Plant, which is adjacent to the Delta, that the purpose of the
Delta Pumping Plant is to divert approximately 4,000,000 acre-
feet of water a year from the Sacramento River and Delta to be
transported by means of canals, pumping plants, and other
facilities to users in other areas in California; and that State
defendants deny each and every, all and singular, the re-
maining allegations therein.
23. Answering paragraph 23 of the complaint, that State
defendants admit that the Delta Pumping Plant is located near
a body of water known as Clifton Court Forebay, allege that
58a
Clifton Court Forebay is in an area formerly known as Clifton
Court Tract, admit that the Delta Pumping Plant pumps water
from Clifton Court Forebay into the California Aqueduct, and
deny each and every, all and singular, the remaining allegations
therein.
24. Answering paragraph 24 of the complaint herein, that
State defendants lack information and belief as to the allega-
tions therein and therefore deny each and every, all and
singular, the allegations therein.
25. Answering paragraph 25 of the complaint herein, that
State defendants lack information or belief as to the allegations
thereof and therefore deny each and every, all and singular,
allegations of said paragraph.
26. Answering paragraph 26 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations in said paragraph contained for lack of information
and belief.
27. Answering paragraph 27 of the complaint herein, that
State defendants allege that the Peripheral Canal is planned in
the State Water Project and that it is proposed to be about 400
to 500 feet wide and about 42 miles long; allege that said Canal
is proposed to be constructed between a point near Hood on the
Sacramento River to Clifton Court Forebay near Old River;
and that State defendants deny each and every, all and
singular, the remaining allegations therein.
28. Answering parcgraph 28 of the complaint herein, that
State defendants aliege that one of the purposes and functions
of the Peripheral Canal is to transfer fresh water to the Delta
and Tracy Pumping Plants from the Sacramento River, that
other purposes of said Canal are the control of salinity intru-
sion, the maintenance of water quality adequate for irrigation
purposes, preservation and enhancement of fish, wildlife, and
recreational environment of the Delta, inter alia, and to achieve
the same by planned release of fresh water at various points
along the Canal aforesaid into the Delta; and that State
defendants deny each and every, all and singular, the re-
maining allegations of said paragraph 28.
e%
59a
29. Answering paragraph 29 of the complaint herein, that
State defendants allege that the State of California has ex-
pended public funds for engineering design of the Peripheral
Canal; that the State has approved and authorized construction
of the same; that the State Department of Water Resources is
preparing an Environmental Impact Report on the same; that
the State proposes to commence construction in 1975 and not
prior to that year; and that State defendants deny each and
every, all and singular, the remaining allegations therein for
lack of information and belief.
30. Answering paragraph 30 of the complaint herein, that
State defendants allege that the Tracy Pumping Plant, East
Side Canal and San Luis Drain are Federal project facilities,
none of which is designed, constructed, operated, or controlled
by any of the State defendants, that no claim is stated against
State defendants upon which relief may be granted; and that
State defendants deny each and every, all and singular, the
remaining allegations therein contained for lack of information
and belief.
31. Answering paragraph 31 of the complaint herein, that
State defendants incorporate herein and restate the allegations
in answer of State defendants to paragraph 30, hereinabove,
and deny each and every, all and singular, the remaining
allegations in paragraph 31 of the complaint contained.
32. Answering paragraph 32 of the complaint herein, that
State defendants allege that the proposed diversions of water
from the Sacramento and San Joaquin Rivers by means of the
Peripheral Canal, and East Side Canal will from time to time
reduce the flow of water in the Sacramento River, that up-
stream storage facilities’ releases will from time to time increase
the flow of water in the Sacramento River, that at present the
operation of the Tracy Pumping Plant and the Delta Pumping
Plant contribute to a reversal of direction and reduction of net
60a
flow from time to time in some channels of the Delta; and that
State defendants deny each and every, all and singular, the
remaining allegations in said paragraph 32; and that State
defendants further allege that the control of salinity intrusion,
and incursion, and its effect upon the flow of water in the Delta
has been the subject of protracted public hearings, that a
decision has been made thereon after such hearings by the State
Water Resources Control Board of the State of California, a
public agency vested with legal authority to establish water
quality standards pursuant to State law as well as pursuant to
the Federal Water Pollution Control Law, that the Department
of Water Resources of the State of California and other
departments and entities of the Resources Agency of the State
of California as well as the Sierra Club, plaintiff herein, have
participated in such hearings; that the State regulatory agency
aforesaid received evidence relating to the volume of stream
flow, direction of flow, water levels, currents, water diversion,
and the effect that various alterations of those factors might
have upon the qualities of water in the Delta aforesaid for
beneficial uses within the meaning of the statutes in such cases
made and provided, including irrigation, navigation, recreation,
esthetics, and fish and wildlife, inter alia; that the function of
prescribing water quality standards and the exercise of the right
to divert water in conformance with such standards present
questions of State law within the province of the State Water
Resources Control Board aforesaid. That the decision aforesaid
by State Water Resources Control Board was made in the year
1971; and that thereafter, judicial review of such decision
having been expressly provided for by the statutes and laws of
the State of California, two suits were filed in the Superior
Court of the State of California in and for the County of
Sacramento, and the same were consolidated and are now
pending; that the Sierra Club is a party therein; that the
plaintiffs above-named have failed to exhaust their remedies
expressly provided for in the State courts. That their claim for
relief herein is premature and that this Court may be, and is,
beholden, in the exercise of sound discretion to abstain from
y
6la
exercising jurisdiction to the end that the State of California
may initially declare and interpret the State law and applicable
provisions of the Federal Water Pollution Control Act.
33. Answering paragraph 33 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained.
34. Answering paragraph 34 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained.
35. Answering paragraph 35 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained.
36. Answering paragraph 36 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained.
37. Answering paragraph 37 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained.
38. Answering paragraph 38 of the complaint herein, that
State defendants do hereby incorporate by reference and make
a part hereof as though fully set forth at this place, their
responses, and each of them, to paragraphs | to 37 of the
complaint, both inclusive.
39. Answering paragraph 39 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations contained therein.
40. Answering paragraph 40 of the complaint herein, that
State defendants allege that portions of the Sacramento River
and San Joaquin Rivers within the Delta are navigable waters;
that portion of San Francisco Bay are navigable; and that State
defendants deny each and every, all and singular, the remain-
ing allegations in paragraph 40.
62a
41. Answering paragraph 41 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
42. Answering paragraph 42 of the complaint herein, that
State defendants allege that the East Side Canal, San Luis
Drain, and Tracy Pumping Plant, and each of them, are
Federal facilities over which the State defendants have no
jurisdiction or control; that State defendants deny that State
works come within the purview of the Rivers and Harbors Act
of 1899; and that State defendants further deny that any of such
facilities are within the purview of section 9 of said Rivers and
Harbors Acts, and that State defendants further deny each and
every, all and singular, the remaining allegations therein.
43. Answering paragraph 43 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations contained therein, and, further, specifically deny
that any such facilities come within the purview of section 10 of
said Rivers and Harbors Act.
44. Answering paragraph 44 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations contained therein.
45. Answering paragraph 45 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations contained therein.
46. Answering paragraph 46 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations contained therein.
47. Answering paragraph 47 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
48. Answering paragraph 48 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein.
63a
49. Answering paragraph 49 of the complaint herein, that
State defendants hereby incorporate herein and make a part
hereof their responses to paragraphs | to 48, both inclusive, of
the complaint as though set forth at length at this place.
50. Answering paragraph 50 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations contained therein and allege that the statute therein
is misquoted.
51. Answering paragraph 51 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations contained therein for lack of information and belief.
52. Answering paragraph 52 of the complaint herein, that
State defendants herein incorporate by reference and make a
part hereof their responses to 1 through 51 of the complaint,
both inclusive.
53. Answering paragraph 53 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained; and that State defendants allege
that they have complied with any applicable requirements of
the Fish and Wildlife Coordination Act in connection with the
construction of the Delta Pumping Plant.
54. Answering paragraph 54 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained.
55. Answering paragraph 55 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained.
56. Answering paragraph 56 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained and allege that the statute is found
in its own manner and form.
57. Answering paragraph 57 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained for lack of information and belief.
>
64a
58. Answering paragraph 58 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained, and allege that the statute is
found in its own manner and form.
59. Answering paragraph 59 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained.
60. Answering paragraph 60 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein contained.
61. Answering paragraph 61 of the complaint herein, that
State defendants herein deny each and every, all and singular,
the allegations therein.
62. Answering paragraph 62 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein.
63. Answering paragraph 63 of the complaint herein, that
State defendants hereby incorporate herein and make a part
hereof their responses to paragraphs | through 62, both
inclusive, as though set forth at length at this place.
64. Answering paragraph 64 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein, and allege that the statute is found in its
own manner and form.
65. Answering paragraph 65 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein, and allege that the statute is found in its
own manner and form.
66. Answering paragraph 66 of the complaint herein, that
State defendant deny each and every, all and singular, the
allegations therein, and allege that the statute is found in its
own manner and form.
65a
67. Answering paragraph 67 of the complaint herein, the
State defendants lack information or belief as to the allegations
thereof and therefore deny each and every, all and singular, the
allegations of said paragraph.
68. Answering paragraph 68 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
69. Answering paragraph 69 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
70. Answering paragraph 70 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
71. Answering paragraph 71 of the complaint herein, that
State defendants hereby incorporate herein and make a part
hereof their responses to paragraphs | through 70 of the
complaint, both inclusive, as though they were fully set forth at
length at this place.
72. Answering paragraph 72 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein, and allege that the statute is found in its
own manner and form.
73. Answering paragraph 73 of the complaint herein, that
State defendants admit that portions of the Sacramento River
and the San Joaquin River within the said Delta are estuaries of
the United States; and that State defendants deny each and
every, all and singular, the remaining allegations therein.
74. Answering paragraph 74 of the complaint herein, that
State defendants are unable from the vagueness of the language
therein to ascertain its meaning and have no information and
belief thereon; and that State defendants deny each and every,
all and singular, the allegations therein for lack of information
and belief.
66a
75. Answering paragraph 75 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein.
76. Answering paragraph 76 of the complaint herein, that
State defendants deny each and every all and singular, the
allegations therein.
77. Answering paragraph 77 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein, and allege that the statute is found in its
own manner and form.
78. Answering paragraph 78 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein, except that State defendants admit the
quoted portion is a part of said executive order 11507.
79. Answering paragraph 79 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein.
80. Answering paragraph 80 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein, contained for lack of information and
belief.
81. Answering paragraph 81 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
82. Answering paragraph 82 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
83. Answering paragraph 83 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein for lack of information and belief.
84. Answering paragraph 84 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein.
67a
85. Answering paragraph 85 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein.
86. Answering paragraph 86 of the complaint herein, that
the State defendants herein incorporate by reference and make
a part hereof their responses to paragraphs | through 85 of the
complaint, both inclusive.
87. Answering paragraph 87 of the complaint herein, that
the State defendants admit that the California Environmental
Quality Act of 1970 is contained in the California Public
Resources Code Division 10 and allege that the statute is found
in its own manner and form, and deny each and every, all and
singular, the allegations therein contained.
88. Answering paragraph 88 of the complaint herein, that
State defendants allege that section 21100 of the Public Re-
sources Code is a part of the California Environmental Quality
Act of 1970 which is found in its own form and manner, and
deny each and every, all and singular, the allegations therein.
89. Answering paragraph 89 of the complaint herein, that
State defendants allege that section 21100 of the Public Re-
sources Code is found in its own manner and form, and deny
each and every, all and singular, the allegations therein.
90. Answering paragraph 90 of the complaant herein, that
State defendants allege that section 21101 of the Public Re-
sources Code is found in its own manner and form, and deny
each and every, all and singular, the allegations therein.
91. Answering paragraph 91 of the complaint herein, that
State defendants allege that section 21102 of the Public Re-
sources Code is found in its own manner and form, and deny
each and every, all and singular, the allegations thereof.
92. Answering paragraph 92 of the complaint herein, that
State defendants admit that the Peripheral Canal is a project
within the State of California, which will have a significant
effect on the environment and deny each and every, all and
singular, the remaining allegations therein.
68a
93. Answering paragraph 93 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein.
94. Answering paragraph 94 of the complaint herein, the
State defendants deny each and every, all and singular, the
allegations therein.
95. Answering paragraph 95 of the complaint herein, that
the State defendants allege the powers and duties of the
Secretary for Resources and the Director of Water Resources
are prescribed by statutes found in their own manner and form,
and deny each and every, all and singular, the allegations
therein.
96. Answering paragraph 96 of the complaint herein, that
State defendants deny each and every, all and singular, the
allegations therein.
97. Answering paragraph 97 of the complaint herein, the
State defendants deny each and every, all and singular, the
allegations therein.
98. Answering paragraph 98 of the complaint herein, the
State defendants deny each and every, all and singular, the
allegations therein.
99. Answering paragraph 99 of the complaint herein the
State defendants deny each and every, all and singular, the
allegations therein.
100. Answering paragraph 100 of the complaint herein,
the State defendants deny each and every, all and singular, the
allegations therein.
101. Answering paragraph 101 of the complaint herein,
the State defendants deny each and every, all and singular, the
allegations therein.
69a
PRAYER
WHEREFORE, State defendants, State of California, Norman
B. Livermore, Jr., as Secretary for Resources of the State of
California, and John R. Teerink, as Director of Water Re-
sources of the State of California, sued herein as Director of the
Department of Water Resources of the State of California, and
each of them, pray judgment as follows:
l.
That the complaint and the cause, and each of
them herein, be dismissed.
2.
That State defendants, and each of them, have
judgment.
3.
That declaratory relief be denied.
4. That injunction be denied.
5. That plaintiffs take nothing.
6.
7. For attorneys’ fees.
8.
For costs, disbursements, and expenses.
For such other and further relief as may be meet in
the premises.
Dated: June 5, 1974
EVELLE J. YOUNGER
Attorney General
CARL BORONKAY
Assistant Attorney General
BERTRAM G. BUZZINI
Deputy Attorney General
Attorney tor State Defendants
[Statement of Service omitted |
70a
FEDERAL DEFENDANTS’ ANSWER
James L. BROWNING, JR.
United States Attorney
FRANCIS B. BOONE
Assistant United States Attorney
16th Floor, Federal Building, Box 36055
450 Golden Gate Avenue
San Francisco, California 94102
Telephone: (415) 556-3215
Attorneys for United States Defendants
UNITED STATES DISTRICT COURT
For THE NORTHERN DISTRICT OF CALIFORNIA
[Case caption omitted |
ANSWER OF UNITED STATES DEFENDANTS
Come now the United States defendants, Rogers C.B.
Morton, as Secretary of the Interior of the United States; Ellis
L. Armstrong, as Commissioner of the United States Bureau of
Reclamation; Stanley R. Resor, as Secretary of the Army of the
United States; Frederick B. Clarke, as Chief of Engineers of the
Corps of Engineers of the United States Army; Brigadier
General Frank A. Camm, as Division Engineer of the South
Pacific Division of the Corps of Engineers; by James i
Browning, Jr. United States Attorney, and Francis B. Boone,
Assistant United States Attorney, and for their answer and
defenses to plaintiffs’ Complaint herein admit, deny, allege, and
state as follows:
Tila
SECOND DEFENSE
This is a suit against the United States to which it has not
consented, and therefore the Court lacks jurisdiction over the
person, the United States officers named herein as defendants.
THIRD DEFENSE
The Court lacks jurisdiction over the subject matter in the
Complaint.
FOURTH DEFENSE
The Complaint does not state a cause of action under the
United States Constitution or any Federal statutes or acts of
Congress.
FIFTH DEFENSE
The plaintiffs lack the standing to sue.
SIXTH DEFENSE
1. The allegations in paragraph | of the Complaint are
conclusions of law which require no answer, other than as
stated in the foregoing defenses.
2. The defendants admit the allegation in paragraph 2 of
the Complaint that the Sierra Club is a non-profit California
corporation. The defendants deny the allegation that the Sierra
Club and its members are adversely affected and aggrieved by
the acts complained of in the Complaint. The defendants allege
that they are without information or belief sufficient to enable
them to answer the remaining allegations in paragraph 2 of the
Complaint, and therefore on that ground deny each and every
such allegation.
72a
3. The defendants allege that they are without information
or belief sufficient to enable them to answer the allegations
contained in paragraph 3 of the Complaint, and therefore on
that ground deny each and every such allegation.
4. The defendants allege that they are without information
or belief sufficient to enable them to answer the allegations
contained in paragraph 4, and therefore on that ground deny
each and every such allegation.
5. The defendants allege that they are without information
or belief sufficient to enable them to answer the allegations
contained in paragraph 5 of the Complaint, and therefore on
that ground deny each and every such allegation.
6. The defendants allege that they are without information
or belief sufficient to enable them to answer the allegations
contained in paragraph 6 of the Complaint and therefore on
that ground deny each and every such allegation.
7. The defendants admit the allegations contained in
paragraph 7 of the Complaint.
8 The defendants admit the allegations contained in
paragraph 8 of the Complaint.
9. The defendants admit that Stanley R. Resor was the
Secretary of the Army of the United States at the time of the
institution of this action; however, the present Secretary of the
Army is Robert F. Froehlke.
10. The defendants admit the allegations contained in
paragraph 10 of the Complaint.
11. The defendants admit the allegations contained in
paragraph 11 of the Complaint.
12. The allegations contained in paragraph 12 of the
Complaint do not pertain to the defendants herein. Therefore,
the defendants neither admit nor deny same, since they apply to
the State of California defendants only.
73a
13. The allegations contained in paragraph 13 of the
Complaint do not apply to the defendants herein. Therefore,
the defendants neither admit nor deny same, since they apply to
the State of California defendants only.
14. With respect to the allegations contained in paragraph
14 of the Complaint, the plaintiffs merely set forth the relief
which they allegedly are seeking from this Court. Therefore,
the allegations require no answer and the defendants neither
admit nor deny same. However, defendants do deny that the
United States Bureau of Reclamation has in any way proceeded
or will in the future proceed in any activity described in
paragraph 14 without having complied with the laws and
statutes of the United States.
15. The plaintiffs’ allegations in paragraph 15 of the
Complaint relate to the purpose of the action as described by
the plaintiffs. The defendants neither admit nor deny the
purpose of the action as alleged by the plaintiff. However, the
defendants deny that the defendants have or will cause ex-
cessive diversions of water from the Sacramento and- San
Joaquin Rivers and the defendants further deny that there will
be permanent and irreparable damage to fisheries, public
health, and recreation caused by any diversions of water by the
defendants.
16. The defendants admit the allegations contained in
paragraph 16 of the Complaint.
17. The defendants admit the allegations contained in
paragraph 17 of the Complaint.
18. The defendants admit the allegations contained in
paragraph 18 of the Complaint.
19. The defendants deny the allegation contained in
paragraph 19 of the Complaint that the water quality of San
Francisco Bay is critically dependent upon continued discharge
of fresh water from the Delta to provide flushing and circula-
tion necessary to reduce salinity content, phosphate concentra-
tion, and pollution of the waters of San Francisco Bay. The
74a
defendants admit the remaining allegations contained in para-
graph 19 of the Complaint.
20. The defendants admit that the Secretary of the Interior
is charged with the responsibility for preserving, conserving,
and protecting the fish and wildlife and other natural resources
of the United States. The defendants deny each and every
other allegation contained in paragraph 20 of the Complaint.
21. Answering paragraph 21 of the Complaint, the
defendants deny that the State Water Project is financed in
large part by Federal funds or that the State’s portion of the
joint use facilities constitute integral parts of the Central Valley
Project of the United States Bureau of Reclamation. The
defendants neither admit nor deny the remaining allegations in
paragraph 21 of the Complaint, since they apply to the State of
California defendants.
22. The defendants neither admit nor deny the allegations
contained in paragraph 22 of the Complaint, since they apply to
the State of California defendants.
23. The defendants deny that the Delta Pumping Plant
has been financed in part with money contributed by the
Federal Government and is being constructed with the assis-
tance of and in cooperation with the United States Bureau of
Reclamation, as alleged in paragraph 23 of the Complaint. The
defendants neither admit nor deny the remaining allegations in
paragraph 23 of the Complaint, since they apply to the State of
California defendants.
24. The defendants deny that the Tracy Pumping Plant is
located on a body of water known as Clifton Court Forebay.
Defendants further deny that the Bureau of Reclamation took
any part in excavating and building dikes around the periphery
of an area of land within the Delta formerly known as Clifton
Court Tract. The defendants neither admit nor deny the other
allegation in paragraph 24 of the Complaint, since it applies to
the State of California defendants.
a
75a
25. The defendants admit the allegations contained in
paragraph 25 of the Complaint.
26. In answering the allegations contained in paragraph
26 of the Complaint, the defendants allege that the use and
purpose of the Tracy Pumping Plant is not correctly described
in said paragraph 26. The Plant is located in the southern
Delta and diverts water from Old River, one of the channels of
the Delta. The water diverted is a mixture of waters from both
Sacramento and San Joaquin River Basins. The defendants
admit that water is transmitted from the Tracy Pumping Plant
through the Delta-Mendota Canal to various locations in the
Central Valley of California.
27. In answering paragraph 27 of the Complaint the
defendants allege that the annual diversion of water at the
Tracy Pumping Plant varies from year to year. Defendants do
not, however, deny the substance of paragraph 27 in the
Complaint.
28. In response to the allegations contained in paragraph
28 of the Complaint the defendants allege that the Bureau of
Reclamation proposes to finance, construct, and operate the so-
called “Peripheral Canal” only upon proper authorization by
the Congress of the United States and upon appropriation of
funds therefor from the said Congress of the United States.
Since Congress has not authorized construction of the Per-
ipheral Canal as a Federal facility and has not appropriated
money for the construction and operation thereof, the allega-
tions contained in paragraph 28 of the Complaint are denied as
to the Bureau of Reclamation proposing to finance, construct,
and operate the Canal at this time.
29. In answering paragraph 29 of the Complaint the
defendants admit that one of the purposes and functions of the
Peripheral Canal is to transport fresh water to the Delta and
Tracy Pumping Plants from the Sacramento River. Defendants
further allege that the proposed Peripheral Canal would have
many other important purposes, such as salinity control in the
76a
Delta, maintenance of water quality, protection and preserva-
tion and enhancement of fish and wildlife and recreational
environment, to name a few. The defendants deny each and
every remaining allegation of said paragraph 29 of the Com-
plaint.
30. The defendants deny that the Bureau of Reclamation
proposes to commence excavation for the Peripheral Canal in
the near future. Defendants allege that the Bureau of Reclama-
tion will not take part in the construction of the Peripheral
Canal until Congressional authorization therefor. Defendants
deny that the Department of the Interior has submitted to
Congress a recommendation that the Federal Government
participate in the financing and construction of the Peripheral
Canal. Defendants are without information or belief sufficient
to enable them to answer the remaining allegations in para-
graph 30, and therefore on that ground deny each and every
such allegation.
31. In answering paragraph 31 the defendants deny that
construction is about to commence on the East Side Canal.
Defendants further allege that such construction by the Bureau
of Reclamation will not be undertaken until and unless Con-
gressional authorization is received for the Project. Defendants
further deny that the Bureau of Reclamation proposes to divert
two and one-half million acre-feet (or any amount) of water
annually from the Sacramento and San Joaquin Rivers and
their tributaries by means of a proposed canal known as the
East Side Canal, reservoirs, pumping plants, and other related
facilities collectively referred to as the East Side Canal without
prior Congressional authorization and appropriations therefor.
32. The defendants admit that the Bureau of Reclamation
has commenced construction of a facility known as the “San
Luis Drain” for the purpose of collecting water drained from
agricultural lands in the San Joaquin Valley as said project was
authorized by Public Law 86-488, approved July 3, 1960. The
defendants deny the allegations in paragraph 32 of the Com-
plaint not herein specifically admitted.
77a
33. The defendants deny each and every allegation
contained in paragraph 33 of the Complaint.
34. The defendants deny each and every allegation
contained in paragraph 34.
35. The defendants deny each and every allegation in
paragraph 35 of the Complaint.
36. Defendants deny that diversions of water proposed by
the Bureau of Reclamation will increase salinity of the Sacra-
mento River and Delta so as to alter and adversely affect
marine life and the habitat of migratory birds in said waters
and in wetlands, marshes, and other adjacent areas.
37. The defendants deny each and every allegation
contained in paragraph 37 of the Complaint.
38. The defendants deny each and every allegation
contained in paragraph 38 of the Complaint.
39. In answering paragraph 39 of the Complaint the
defendants here refer to and incorporate herein as if fully set
forth at length paragraphs | through 38 of this Answer.
40. In answering paragraph 40 of the Complaint the
defendants herein allege that the construction and operation of
the Tracy Pumping Plant and the construction of the San Luis
Drain have been authorized by Congress and funds for the
construction have been lawfully appropriated for the purposes
for which they were used. Construction of the Peripheral Canal
and the East Side Project will not be undertaken until lawfully
authorized by Congress and until all requirements for such
authorization and appropriation for construction have been
made. Therefore, the defendants deny each and every allega-
tion contained in paragraph 40 of the Complaint relating to a
Federal Peripheral Canal, the Tracy Pumping Plant, the San
Luis Drain, and the East Side Canal.
41. The defendants admit the allegations contained in
paragraph 41 of the Complaint. ,
78a
42. Defendants deny the allegations contained in para-
graph 42 of the Complaint.
43. In answering paragraph 43 of the Complaint the
defendants deny that the operation of the facilities described in
said paragraph would cause or result in the diversion of water
from or the discharge of water into navigable water of the
United States, which diversion and discharge are unlawful in
the absence of the approval of the Secretary of the Army and
the Chief of Engineers required by the Rivers and Harbors Act
of 1899. Defendants admit the remaining allegations in
paragraph 43 of the Complaint.
44. Defendants deny each and every allegation contained
in paragraph 44 of the Complaint.
45. Defendants deny each and every allegation in para-
graph 45 of the Complaint.
46. Defendants deny each and every allegation contained
in paragraph 46 of the Complaint.
47. In answering paragraph 47 of the Complaint the
defendants deny that the construction or operation of the
Peripheral Canal, Delta Pumping Plant, San Luis Drain, East
Side Canal, and Tracy Pumping Plant are unlawful pursuant to
Section 403 of the Rivers and Harbors Act of 1899 for any
reason. Defendants further deny that these projects result in
the continuing and substantial destructive alteration of the
Delta and the San Francisco Bay environment and that the
operation of the facilities is in violation of the statutory
jurisdiction and authority of the State of California and the
Bureau of Reclamation. Defendants further deny that the
operation is detrimental to the rights and interests of the
plaintiffs. Further, the defendants deny that the operation of
the Tracy Pumping Plant and the Delta Pumping Plant has
caused direct damage to fish and wildlife and recreational
capacity of the Delta region. The defendants admit the
remaining allegations in paragraph 47 of the Complaint.
79a
48. The defendants admit that Congress has not approved
the diversion of water from and discharge of water into
navigable waters of the United States, the alteration and
modification of the course, location, condition, and capacity of
said waters, or the obstruction to the navigable capacity of said
waters which may be caused by or result from the construction
or operation of the Peripheral Canal or the East Side Canal.
The defendants deny the allegation that Congress has not
approved the diversion of water from and the discharge of
water into navigable waters of the United States; the alteration
and modification of the course, location, condition, and capa-
city of said waters; or the obstruction to the navigable capacity
of said waters which may be caused by or result from the
construction or operation of the Tracy Pumping Plant and the
San Luis Drain.
49. The defendants admit the allegations contained in
paragraph 49 of the Complaint.
50. In answering paragraph 50 of the Complaint, the
defendants refer to and incorporate herein as if fully set forth at
length the paragraphs | through 49 of this Answer.
51. The defendants admit that the quotation contained in
paragraph 51 of the Complaint is a correct quotation of Section
13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407.
52. The defendants deny each and every allegation
contained in paragraph 52 of the Complaint.
53. In answering paragraph 53 of the Complaint the
defendants refer to and incorporate herein as if fully set térth
paragraphs | through 52 of this Answer.
53. In answering paragraph 53 of the Complaint the
defendants refer to and incorporate herein as if fully set forth
paragraphs | through 52 of this Answer.
54. The defendants deny the allegations contained in
paragraph 54 of the Complaint.
7
80a
55. The defendants admit that the operation of the Tracy
Pumping Plant and the Delta Pumping Plant constitute or
result in the diversion of waters from the Sacramento or San
Joaquin Rivers. The defendants further admit that if and when
authorized and constructed the East Side Canal and the Per-
ipheral Canal will result in diversion of water from the Sacra-
mento or San Joaquin Rivers. Defendants further admit that
the State of California and the United States of America
propose to divert in excess of seven million acre-feet of water
per year from the Sacramento-San Joaquin Rivers and Delta
area and their tributaries upon ultimate development. Defend-
ants deny the remaining allegations contained in paragraph 55
of the Complaint.
56. Defendants deny each and every allegation contained
in paragraph 56 of the Complaint.
57. In answering paragraph 57 of the Complaint the
defendants admit that this may be a correct description of
Section 2(b) of the Fish and Wildlife Coordination Act, 16
US.C. § 662(b), but allege that the best evidence is the
quotation of the section itself.
58. The defendants deny the allegations contained in
Section 58 of the Complaint.
59. The defendants admit that the quotation from Section
2(b) of the Fish and Wildlife Coordination Act contained in
paragraph 59 of the Complaint may be an accurate partial
quote.
60. The defendants deny the allegations contained in
paragraph 60 of the Complaint.
61. The defendants deny the allegations contained in
paragraph 61 of the Complaint.
62. The defendants deny the allegations contained in
paragraph 62 of the Complaint.
63. The defendants deny the allegations contained in
paragraph 63 of the Complaint.
8la
64. In answering paragraph 64 of the Complaint the
defendants refer to and incorporate herein as if fully set forth at
length paragraphs | through 63 of this Answer.
65. The defendants admit the allegations contained in
paragraph 65 of the Complaint may be a correct description of
the section referred to, but allege that the best evidence is the
exact quotation of the section itself.
66. The defendants admit the allegations contained in
paragraph 66 of the Complaint may be correct description of
the section referred to, but allege that the best evidence is the
exact quotation of the section itself.
67. The defendants admit the allegations contained in
paragraph 67 of the Complaint may be a correct description of
the section referred to, but allege that the best evidence is the
exact quotation of the section itself.
68. The defendants deny each and every allegation
contained in paragraph 68 of the Complaint.
69. In answering paragraph 69 of the Complaint the
defendants allege, as set forth elsewhere in this Answer, the
Congress of the United States has not authorized construction
of the Peripheral Canal or the East Side Canal. Reports on
feasibility of the Peripheral Canal and the East Side Canal have
not been submitted to Congress for consideration. When they
are submitted they will contain an environmental statement and
all other required statements and reports. An environmental
statement on the San Luis Drain is being processed as required
by administrative procedures and will be filed with the Presi-
dent’s Council on Environmental Quality when the adminis-
trative requirements have been complied with.
70. The defendants admit the allegations contained in
paragraph 70 of the Complaint; however, defendants specific-
ally deny the legal necessity of submitting a detailed statement
with respect to the environmental impact, the adverse
environmental effects, or the irreversible or irretrievable com-
mitments of resources insofar as the Tracy Pumping Plant is
82a
concerned. The Tracy Pumping Plant has been in operation
since June 1971. The defendants allege and aver that the
National Environmental Policy of 1969 does not require or call
for retroactive effect. With respect to the San Luis Drain, an
environmental statement on the San Luis Drain is being
processed and will be filed with the President’s Council on
Environmental Quality.
71. With respect to allegation No. 71 in the Complaint, the
defendants refer to and incorporate herein as if fully set forth at
length paragraphs | through 70 of this Answer.
72. The defendants admit the allegations contained in
paragraph 72 of the Complaint may be a correct description of
the sections referred to, but allege that the best evidence is the
exact quotation of the sections themselves.
73. The defendants admit the allegations contained in
paragraph 73 of the Complaint.
74. The defendants admit the allegations contained in
paragraph 74 of the Complaint.
75. The defendants deny the allegations contained in
paragraph 75 of the Complaint.
76. The defendants admit the allegations contained in
paragraph 76 of the Complaint, except that the citation is
inaccurate; 33 U.S.C.§§1151, et seq.
77. The defendants admit that the quotation contained in
paragraph 77 of the Complaint is an accurate excerpt from
Section 1171(a) of the Federal Water Pollution Control Act.
78. The defendants admit that the statement in paragraph
78 of the Complaint is an accurate excerpt from Executive
Order 11507, 35 Federal Register 2573 (1970).
79. The defendants deny the allegations contained in
paragraph 79 of the Complaint.
80. The defendants deny the allegations contained in
paragraph 80 of the Complaint.
83a
81. The defendants admit the allegations contained in
paragraph 81 of the Complaint, except that defendants allege
that Robert F. Froehlke is the Secretary of the Army.
82. The defendants admit the allegations contained in
paragraph 82 of the Complaint.
83. In answering paragraph 83 the defendants deny that
they can authorize or approve the construction or operation of
the Peripheral Canal, Delta Pumping Plant, Tracy Pumping
Plant, East Side Canal, or San Luis Drain since only Congress
may authorize, approve, and appropriate funds for the con-
struction of a Federal project. The defendants admit that in
recommending construction of the Peripheral Canal and the
East Side Canal they must comply with all applicable Federal
Regulations and statutes.
84. The defendants deny the allegations contained in
paragraph 84 of the Complaint.
85. The defendants deny the allegations contained in
paragraph 85 of the Complaint.
86. In answering paragraph 86 of the Complaint the
defendants deny that there is a present controversy between the
plaintiffs and the defendants. The United States defendants
admit that they propose to proceed with the operation of the
Tracy Pumping Plant. The United States defendants deny that
they propose to construct the Peripheral Canal and the East
Side Canal without first obtaining the consent of Congress. The
United States defendants deny that if the Congress of the
United States authorizes the construction of the Peripheral
Canal and the East Side projects that the Secretary of the Army
and the Chief of Engineers must furnish approval for such
projects.
87. The defendants deny the allegations contained in
paragraph 87 of the Complaint.
88. The defendants deny the allegations contained in
paragraph 88 of the Complaint.
84a
Wuererore, the defendants pray this Court enter judg-
ment dismissing the Complaint, denying the declaratory relief,
denying the injunctive relief, and awarding costs to the defend-
ants.
Dated: December 6, 1971.
JAMES L. BROWNING, JR.
United States Attorney
FRANCIS B. BOONE
Francis B. Boone
Assistant United States Attorney
Attorneys for United States De-
fendants.
[Statement of Service omitted |
85a
DECISIONS OF COURT OF APPEALS AND DISTRICT
COURT
[The decision of the U.S. Court of Appeal is reprinted as
an Appendix to the Petition for Writ of Certiorari filed by State
of California et al. in No. 79-1252, at pages 2-65 thereof. The
decision of the district court is reprinted as a Supplemental
Appendix to the petition for Writ of Certiorari filed by State of
California et al. in No. 29-1252, at pages 1-69 thereof. ]
86a
PRE-TRIAL ORDER
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
[Case caption omitted |
AGREED PRE-TRIAL ORDER
RESPECTING THE FIRST
PHASE OF BIFURCATED TRIAL
A pre-trial conference in this matter was held on June 10,
1974, before United States District Judge Charles B. Renfrew.
All parties were present by their counsel. This order, having
been prepared with the assistance of United States Magistrate
Owen E. Woodruff, Jr. pursuant to a prior order of the Court
and having been submitted by the parties as their proposed
agreed pre-trial order respecting the first phase of this bifur-
cated trial and all parties having consented to its entry, is
adopted, pursuant to Local Rules 104 through 107, as the Pre-
Trial Order in this action.
* * * *
3. Undisputed Facts
All parties have stipulated that the following facts are true
and correct (for ease of reference, the letter designating each
exhibit is set forth in the margin opposite the first reference such
exhibit).
3.1 Plaintiff Sierra Club is a non-profit California corpo-
ration and from 1892 to the present has maintained its principal
office in San Francisco, California.
87a
3.2 The Sierra Club has in excess of 130,000 members of
whom more than 40,000 live in the San Francisco Bay and the
Sacramento-San Joaquin Delta (the Delta) areas.
3.3. The stated purposes of the Sierra Club include the
preservation and conservation of the natural resources, fish and
wildlife of the United States, including its rivers, bays, wet-
lands, delta and estuarine areas. Included in the membership
of the Sierra Club are many persons who use the waters
referred to in the complaint for recreational purposes, including
but not limited to boating, fishing and swimming.
3.4 The Sierra Club has brought this action in behalf of its
members, as well as in its own behalf, and will adequately
represent the interests of such persons.
3.5 Plaintiff Friends of the Earth is a non-profit corpo-
ration organized and operating under the laws of the State of
New York, with a principal place of business in San Francisco,
California. Its stated purposes include the preservation, resto-
ration and rational use of the environment.
3.6 Plaintiff Hank Schramm is and has been engaged for
the past 20 years in the business of commercial fishing and the
operation of sports-fishing party boats in the waters of San
Francisco Bay and of the Pacific Ocean in the region of San
Francisco. Hank Schramm has an economic interest and
depends for his livelihood on the maintenance, preservation
and conservation of sports and commercial fisheries in San
Francisco Bay and in the adjoining waters of the Pacific Ocean.
3.7 Plaintiff William Dixon is a lifelong resident of the San
Francisco Bay Area and owns substantial property in the Delta,
including a partnership interest in the St. Germain Duck Club
on Simmons Island. William Dixon has an economic interest in
the maintenance, preservation and conservation of adequate
non-polluted supplies of water in the Delta and San Francisco
Bay regions.
nr en or al
88a
3.8 Defendant Rogers C. B. Morton is the Secretary of the
Interior of the United States and is responsible for the adminis-
tration of the United States Department of the Interior.
3.9 Defendant Gilbert G. Stamm is the Commissioner of
the Bureau of Reclamation of the United States Department of
the Interior.
3.10 Defendant Howard H. Calloway is the Secretary of
the Army of the United States.
3.11 Defendant William C. Gribble, Jr. is the Chief of
Engineers of the United States Army and the Administrator of
the United States Corps of Engineers.
3.12 Defendant George B. Fink is the Division Engineer
of the South Pacific Division of the United States Army Corps
of Engineers and maintains his office in the City and County of
San Francisco, State of California. Included within the geogra-
phic boundaries of the South Pacific Division of the Corps of
Engineers are the Sacramento River, the Sacramento-San Joa-
quin Delta, San Francisco Bay and adjoining waters of the
Pacific Ocean.
3.13 Defendant Colonel Frederick J. Rockwell, U.S.A., is
District Engineer of the Sacramento, California District of the
U.S. Army Corps of Engineers.
3.14 Defendant Colonel James L. Lammie, U.S.A., is
District Engineer for the San Francisco, California District of
the United States Corps of Engineers.
3.15 Defendant Norman B. Livermore, Jr. is the Secretary
for Resources of the State of California in which capacity he
supervises the operations of the Resources Agency of the State
of California.
3.16 Defendant John R. Teerink is the Director of the
Department of Water Resources, which is a department within
the Resources Agency of the State of California.
89a
3.17 The Sacramento and San Joaquin Rivers and their
tributaries combine to drain most of the Central Valley of
California, which comprises about 37% of the total land area of
the State of California. '
3.18 The Sacramento-San Joaquin Delta contains approxi-
mately 700 miles of meandering waterways some of which are
navigable. Approximately 35% of California warm water and
anadramous sport fishing and about 80% of the commercial
salmon fishing of California are dependent upon the Delta
environment. As used herein, the Sacramento-San Joaquin
River Delta (“Delta”) shall include all lands within those
boundaries set forth in California Water Code §12220 and
depicted on State Defendants’ Exhibit A.
3.19 The Delta and the marshes and wetlands adjoining
the Delta and downstream waters including Suisun Marsh, are
a wintering area and a major and customary natural habitat for
migratory birds on the Pacific Flyway.
3.20 More than 4,000,000 people reside in the metropoli-
tan San Francisco Bay Area, some of them use and depend in
one way or another upon the water of San Francisco Bay for
recreation, commerce or aesthetic enjoyment.
3.21 The Legislature of the State of California has author-
ized the “State Water Project.” In 1959 the California Legisla-
ture adopted the Burns-Porter Act to provide funds fo
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