# Appendix — California v. Sierra Club > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2201%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 451 U.S. 287 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2201%3A03. Public record. Not legal advice.