Petition for Writ of Certiorari — Imperial Irrigation District v. State Water Resources Control Board
Supreme Court brief1991
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No. 91-
JUL 11 198?
“BREGE-OF FHL CLERK
7
In the Supreme Court
OF THE
United States
OCTOBER TERM 1990
IMPERIAL IRRIGATION DISTRICT,
sitioner,
V.
STATE WATER RESOURCES CONTROL BOARD,
Respondent,
ENVIRONMENTAL DEFENSE FUND, INC.,
Intervenor.
PETITION FOR WRIT OF CERTIORARI TO THE
CALIFORNIA COURT OF APPEAL,
FOURTH APPELLATE DISTRICT, DIVISION ONE
JOHN P. CARTER
REGINALD L. KNox, JR.
HORTON, KNOX, CARTER & FOOTE
895 Broadway, Suite 101
El Centro, California 922438
PAUL D. ENGSTRAND
COUNSEL OF RECORD
GEORGE J. BERGER
DEARING D. ENGLISH
JENNINGS, ENGSTRAND & HENRIKSON
A Professional Law Corporation
501 West Broadway, Suite 1400
San Diego, California 92101
(619) 557-7800
Bowne of Los Angeles, Inc., Law Printers. (213) 627-2200
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Questions Presented for Review
1. Does the Boulder Canyon Project Act delegate to
the Secretary of Interior primary or exclusive jurisdiction
coneerning what are reasonable uses and methods of use
of Colorado River water by entities with Section 5
contracts?
2. Despite the Secretary’s approval of uses and meth-
ods by Petitioner, does California’s State Water Re-
sources Control Board' have jurisdiction to order
Petitioner, who executed a contract in 1932 for permanent
service of water with the Secretary of Interior under
Section 5 of the Boulder Canyon Project Act (“BCPA”),”
to fund construction of extensive works to crea‘e con-
served water for the sole benefit of coastal plain urban
users with similar Section 5 contracts of lower priority?
3. Does such an order violate the “swpremacy given the
Secretary's contracts...’ by Congress “and thwart full
realization of the benefits Congress intended this national
project to bestow[?]’”*
‘Herein “SWRCB” or “Board.”
*Boulder Canyon Project Act of 1928, 45 Stat. 1057, 43 U.S.C.
§$§ 617 et seg. (1986 & Supp. 1991).
‘Arizona v. California, 373 U.S. 546, 580 (1963) (“Arizona I’)
Emphasis added in all cases herein unless otherwise noted.
*Id. at 590.
il
TABLE OF CONTENTS
Page
Questions Presented for Review ................. i
I
GONE GUNN o's k vad cece sand decseeeencereeeen 1
Il
Statement of Jurisdiction ..............ceeeeeees 2
Ill
Ee Pe re er ny aE ey: 2
IV
I OG Se GD fic nbs 40 ade tivedernteeiae 8
A. Federal imvolvement .....cccccscccvcscccces 8
oe i rrr ne 8
Se WOU VIO o.oo ks ce keene ceseiens 10
. SRR ROGNN oic. s oko ca bker esas 11
1. State’s Concern Was For “People Gener-
GN” cosicvivakecdesesiaetisniseesie 11
2. State Ignored Federal Approval .......... 12
3. Order WR 88-20 Reallocates The Federal
POOR TS 6 66-0060 2 dbeeen deen 13
iil
TABLE OF CONTENTS
pensons for Granting Writ .......cccccccccvvvess
A.
Congressional Policy, As Explicated By This
Court And Implemented By The Secretary Of
Interior, Would Be Substantially Eroded If
IID-II Were Allowed To Stand ..............
1. National Concern For Irrigation Projects. .
2. Implementation By 43 C.F.R. Part 417....
i
When State Action Interferes With Congres-
sional Policy And Directives — “State Law Has
tA vb wine aa dss ech veeneensees
2. California v. United States ...............
3. California v. FERC (herein “Rock Creek’’)
VI
EE SS ae
iV
TABLE OF AUTHORITIES
Cases
Page
Arizona v. California, 283 U.S. 423 (1931) ....... 24
Arizona v. California, 373 U.S. 546 (1963) .......
Pe ee ery ee i, 3, 14, 16, 18, 19, 23, 24, 25, 28
Arizona v. California, 376 U.S. 340 (1964) ....... 17, 19
Arizona v. California, 439 U.S. 419 (1979) ....... 16,17
Arizona v. California, 460 U.S. 605 (1983) ....... 15, 16
Bryant v. Yellen, 447 U.S. 352 (1980). ..10, 16, 19, 21, 26
California v. FERC, 495 U.S. ___, 109 L.Ed.2d 474
See <3 bu was aecses be nee 54s 6as eee hee sews 16, 27
California v. United States, 438 U.S. 645 (1978) .. 25
California Development Co. v. New Liverpool Salt
Co., 178, THB (ie Cie. WOOD)... wc ccccccccess 8
Environmental Defense Fund, Inc. v. East Bay Mu-
nicipal Utility District, 439 U.S. 811 (1978) .... 8
Escondido Mut. Water Co. v. La Jolla Indians, 466
Wa ME do 4's Cos bhci«bae ce euec teens 16
FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960) 16
First Iowa Hydro-Electric Cooperative v. FPC, 328
Pie CE FAG UES ORC eRL ee eiesedbetedde 16
First English Evangelical Lutheran Church of Glen-
dale v. County of Los Angeles, 482 U.S. 304, 318-
Par Rei i re ee 29
Fresno v. California, 372 U.S. 627 (1963) ........ 18
Imperial Irrigation District v. State Water Resources
Control Board, 186 Cal. App. 3d 1160 (1986)
fo | SR er Sipe Path lege 2
Imperial Irrigation District v. State Water Resources
Control Board, 225 Cal. App. 3d 548 (1990)
SE Ve vc 6c Cuvacededetedd aciaekudesees Passim
Imperial Land Co. v. Imperial Irrigation District,
173 Cal. 660, 161 P. 113 (1916) .............. 8
Vv
TABLE OF AUTHORITIES
CASES
Page
International Longshoremen’s Assn. v. Davis, 476
et SE ol fee lds Phe ates ne keavenns 7
Ivanhoe v. McCracken, 357 U.S. 275 (1958) ...... 18
Ivanhoe Irrig. Dist. v. All Parties and Persons, 53
Cal.2d 692, 350 P. 2d 69, 3 Cal. Rptr. 317 (1960) 23, 24
Jones v. California Development Co., 173 Cal. 565,
ee ee ED: ig oa do 0s dk oo 6heneeen ewes 8
Nollan v. California Coastal Comm., 483 U.S. 825,
Te far 6a rad aces nee eee ene 29
Three Affiliated Tribes of the Fort Berthold Reserva-
tion v. Wold Engineering, 476 U.S. 877 (1986) 7
United States v. Gerlach Live Stock Co., 339 U.S.
& fee ere ere 29
Statutes
California Water Code
Reta Doc eavulesddnenaeawane hes 24
SPT EE CECE EEE CEE POPPE CTE 8
Code of Federal Regulations, Title 43, Part 417
EE ical ek a hehe ie oe ked ete cer eeeeue 20
ES Cie de Oak ccekkes ee ecasvecetcsounl 20
OT a re rrr tn rr reer eey Terns 20, 21
| I ee ee 20
29 Fed. Reg. 13,605-13,606 (1964)............
34 Fed. Reg. 11,499-11,500 (1969) ............ 20
37 Fed. Reg. 18,076-18,078 (1972)............ 20
Pub. L. No. 90-515, 82 Stat. 868 (September 26,
|. | RS a ere a a Pe 15
Publ L. No. 90-537, 82 Stat. 885 ............... 23
Pub. Ll. Mo. G6-Goe, GS Blak. BOG... 2. occccccecs 23
ip ee ST PTT TTT Triree 23
vi
TABLE OF AUTHORITIES
STATUTES
Page
Pub. L. No. 96-336, 94 Stat. 1063............... 23
Pub. L. No. 98-63, 97 Stat. 301, 315, 352 ........ 10, 23
United States Code, Title 28, See. 1257(3) ...... 2
United States Code, Title 43
re ee SLT Ls kas oben seh oe Skee we i, 19
NE I i's Winiele dpi h ie Cee Nok Rees 23
I 4's’ sacs wl onietnate asda Meta ias ke aso ee a 23
Textbooks
Abbott, California Colorado River Issues, 19 Pac.
Bie ey ae ii haa i ad chess 0 eae eee 6
Bulletin 4, DWR/SWRCB, January 1982........ 5
Bulletin No. 198, DWR, Water Conservation in
ES ee ee ree 5
Dunning, The Physical Solution in Western Water
Law, 57 U. Colo. L. Rev. 445 (1986) .......... 6
Nathanson, Updating The Hoover Dam Documents,
I oo. ss oN aK Rk CO eRe Ces 23
Water Policies For the Future, Final Report to the
President and to the Congress of the United
States by the National Water Commission, June,
NAS ics sc 6 + Opa ee eee hae ae ha 15
Wilbur & Ely, The Hoover Dam Documents, A589
Ee ie: Sid Libis 4'e guia ok hina aie anaes Wa 9,14
No. 91-
In the Supreme Court
OF THE
United States
OCTOBER TERM 1990
IMPERIAL IRRIGATION DISTRICT,
Petitioner,
Vv.
STATE WATER RESOURCES CONTROL BOARD,
Respondent.
ENVIRONMENTAL DEFENSE FUND, INC.,
Intervenor.
PETITION FOR WRIT OF CERTIORARI TO THE
CALIFORNIA COURT OF APPEAL,
FOURTH APPELLATE DISTRICT, DIVISION ONE
Petitioner, Imperial Irrigation District (“IID”), re-
spectfully requests that this Court issue a Writ to review
the opinion of the California Court of Appeal, Fourth
Appellate District, Division One, filed November 21, 1990.
I
OPINIONS BELOW
1. The subject opinion, Imperial Irrigation District v.
State Water Resources Control Board, 225 Cal. App. 3d
548, 275 Cal. Rptr. 250 (1990) (“JID-IT’), whereby the
Court of Appeal affirmed the trial court’s approval of
orders made by the California administrative agency
(herein the “Board” or “SWRCB”) which ordered IID to
use its financial resources to create conserved water from
9
~
Boulder Canyon Project water deliveries for the sole
benefit of lower priority users or other Californians, is in
the separate appendix filed herewith, at Appendix, 3. The
trial court judgment is at Appendix, 42; the trial court
statement of decision is at Appendix, 46; the Board’s
Order WR 88-20 is at Appendix, 53; Imperial Irrigation
District v. State Water Resources Control Board, 186 Cal.
App. 3d 1160, 231 Cal. Rptr. 283 (1986) (“IID-I’’) is at
Appendix, 101; the trial court judgment is at Appen-
dix, 121; the Board’s Order WR 84-12 is at Appendix, 127;
and the Board’s Decision 1600 is at Appendix, 151.
Il
STATEMENT OF JURISDICTION
The opinion of the Court of Appeal, //D-II, was entered
on November 21, 1990. A petition for rehearing was
denied on December 12, 1990, and on March 15, 1991, the
Supreme Court of California denied, without opinion, a
Petition for Review. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1257(3).
Ill
FEDERAL QUESTION
The California Court of Appeal, by affirming ‘this
specific instance of far-reacning change...” (IID-II, 225
Cal. App. 3d at 573, 275 Cal. Rptr. at 267, Appendix, 40)
has caused a direct confrontation between the regulatory
powers of the Secretary of Interior over the use of
Colorado River water developed and released to users
under the Boulder Canyon Project Act and the adminis-
trative powers of the SWRCB.
3
At the commencement of hearings before the S‘VRCB,
IID, referencing Arizona I, stated that “[t]he docirine of
Federal pre-emption or supremacy could become impor-
tant if the SWRCB should disagree with IID’s present
‘ operational procedures... .’”’ Memorandum of Points and
Authorities on Behalf of Imperial Irrigation District, 6,
Appendix, 234. Next, at the first level of judicial review,
IID elaborated on Federal supremacy principles and
contended that Decision 1600 directly conflicted with
Congressional mandates. Memorandum of Points and
Authorities of Imperial Irrigation District In Support of
Complaint For Declaratory Relief, In the Alternative For
Writ of Mandamus, 33-39, Appendix, 250-255.
At the second level of review (the Court of Appeal),
IID’s Opening Brief explained:
The pattern of decisions made by members of IID’s
board and staff, as their best collective wisdom sug-
gested, focused on the ‘reclamation and cultivation of
arid land ... for agricultural purposes....’ [fn. 8]
IID lobbied for construction of a massive federal
project on the Colorado river [fn. 9], issued debt and
suffered bankruptcy [fn. 10], constructed an electric
system [fn. 11], established its water rights by U.S.
Supreme Court decree [fn. 12], and, also, its free-
dom from the 160-acre limitation of the 1902 Recla-
mation Act. [fn. 13]
'The footnote references noted in the quoted text are:
“8, Greeson v. Imperial Irrigation Dist. (9th Cir. 1932) 59 F.2d
529, 532; n. 9, Crawford v. Imperial Irrigation Dist. (1927) 200
Cal. 318, 328. See Boulder Canyon Project Act (1928) 43
U.S.C.A. §§ 617, et seq.; mn. 10, Wells Fargo Bank v. Imperial
Irrigation Dist. (9th Cir. 1943) 136 F.2d 539; In re Imperial
Irrigation Dist. (1935) 10 F.Supp. 832, 841; nm. 11, Imperial
Irrigation Dist. v. Nevada-California Corp. (9th Cir. 1940) 111
ean
4
IID also repeatedly asserted the Federal basis for its
rights.” The Court of Appeal, fully cognizant of the
Federal rights aspects, recognized both that IID had
“achieved water use efficiencies which are above average
for comparable [Federal] projects” (JID-II, 225 Cal. App.
3d at 571, 275 Cal. Rptr. at 266, Appendix, 38), and “that
IID’s water rights, based as they are on a unique blend of
statutory and contractual origins, could be characterized
as somehow more stable or securely vested than water
rights from traditional [i.e., purely California law]
sources.” Jd. at 561, 275 Cal. Rptr. at 260, Appendix, 23.
IID emphasized to the Court of Appeal that the Bureau
of Reclamation had approved IID’s operational prac-
tices.” IID also vigorously contended that its practices
were reasonable under state law.
F.2d 319; n. 12, Arizona v. California (1963) 373 U.S. 546; Id.
(1964) 376 U.S. 340; Id. (1979) 439 U.S. 419; Id. (1983) 460
U.S. 605; n. 13, Bryant, supra, 447 U.S. 352; bureaucratic vacilla-
tion spanned four presidential administrations. Id. at 363, n.
14.”
“SWRCB's Decision 1600 itself explained the federal basis for
I1D's rights to receive deliveries of Colorado River water from the
United States via the Boulder Canyon Project. Decision 1600, 9-19;
Appendix, 165-174.
‘IID introduced four lengthy exhibits (see Detailed Index, Admin-
istrative Record (AR) Part II, Item 5, Exhibits 21, 22, 24, and 25,
Appendix, 300) that showed its involvement with requirements of the
Secretary of Interior. The Bureau of Reclamation introduced two
Exhibits (AR, Part II, Item 12, Exhibits 1 and 2, Appendix, 304) that
explained the federal approach for dealing with potential opportuni-
ties to create conserved water within the irrigation project in Impe-
rial Valley, California.
Mr. MeCuilough, the Bureau’s Regional Planning Officer, testified
1iD’s “... reeords to be reliable” (AR, Part II, Item 1, Vol. VI, 98)
and presented a table which estimated IID’s losses of 33% and crop
consumptive use of 66%. AR, Part II, Item 5, Ex. 23. He testified that
)
In addition to the legal or jurisdiction-to-decide as-
pects, the facts pertinent to the conflict which these
overlapping regulatory powers caused were presented and
discussed at each stage of the proceedings below.* After
the Bureau, among other matters, annually reminded of “the continu-
ous need for conservation.” On September 20, 1974, the Bureau's
Regional Director wrote IID after “due consideration . .. it is deter-
mined that your request for additional water is adequately justified.”
On February 21, 1978, the Regional Director wrote IID, “I am
pleased with your 13-point program ....I urge you to continue to
provide programs for your water users with emphasis on water
conservation.” By letter dated December 12, 1980, the Bureau's
Director reminded, “[i]n accordance with 43 C.F.R. Part 417, [our]
representatives ... have met each year at your office to discuss water
conservation measures and operating practices . .. your 21-point pro-
gram...is a progressive one which certainly contributes to the
efficient and wise use of water.”
Also, Mr. McCullough testified “how well the district conveys and
utilizes the water supply.” AR, Part II, Item 1, Vol. VI, 95. By letter
of August 23, 1978,-the Bureau’s director advised that both the
“eanals and related structures are in excellent condition.”
‘For example, the Board introduced into evidence ten exhibits that
detailed Federal involvement with IID’s irrigation project (See, AR,
Part II, Item 2, Exhibits 7 through 16, Appendix, 292-293), and the
Department of Water Resources explained the essence of IID’s
rights and relationships with the Bureau. See, AR, Part II, Item 4,
Exhibit 1, Appendix, 297.
Study of the potential for conservation opportunities in IID’s
irrigation project had been made by California as well as the Bureau.
For example, Bulletin No. 198, DWR, Water Conservation in Califor-
nia, May 1976; Bulletin 4, DWR/SWRCB, January 1982.
However, all involved repeatedly found conserving more water
from agricultural projects should not be paid by those agriculturai
users for the benefit of urban users with junior Federal rights. See,
AR, Part I, Item 104, Appendix, 269, in December, 1982, DWR
Director says it is “not economic” for IID to salvage this water. The
Metropolitan Water District of Southern California (“MWD”) said,
6
Decision 1600 was filed, the Regional Director Lower,
Colorado Regional Office, Bureau of Reclamation, acting
for the Secretary, requested the Board to reconsider its
finding “of misuse of water at this time” contending that
“implementing additional conservation measures...
[has] been economically infeasible because no use existed
for the conserved water.” Letter, Juiy 18, 1984, Appendix,
338-339.
Nevertheless, the Court of Appeal brushed aside these
facts and instead interpreted California law as having
specifically given the Board exclusive “supervision over
water waste permitted by anyone in the state, including
IID....” IID-II, 225 Cal. App. 3d at 567, 275 Cal. Rptr.
at 264, Appendix, 31. The JID-II opinion conceded that its
effect was “governmental redefinition of water rights”
and affirmance of “this specific instance of far-reaching
change.” Id. at 573, 275 Cal. Rptr. at 267, Appendix, 40.
Under these circumstances the question-raised-and-de-
cided-below prerequisite has been clearly met. Even if the
Supremacy Clause (pre-emption issue) had not been
“[F]unds obviously not available to Imperial.” Buree said
“[E]conomically infeasible for IID.’ The Colorado River Board said
program “not currently economically justified for Imperial.” Jd. Item
25; AR, Part II, Item 7, Ex. 1, 16. EDF's study (AR, Part II, Item 8,
Ex. 3) envisioned no cost to IID, no decrease in agricultural produc-
tivity and recoupment of benefits “following 20 (or 10) years.” Jd. at
92; see also v.
In fact, “the idea” of an “arrangement” whereby junior urban users
would fund the cost of facilities to create conserved water from
irrigation projects “goes back at least to the 1950's.” Dunning, The
Physical Solution in Western Water Law, 57 U. Colo. L. Rev. 445, 480,
n.190 (1986). The former General Counsel for MWD explained that
the “stumbling block [for such an arrangement] has been the amount
of money ... [MWD would pay].”’ Abbott, California Colorado River
Issues, 19 Pac. L. J. 1391, 1415-1416 (1988).
presented, factually developed, or decided at all by Cali-
fornia, the question, whether a state (or its agencies) has
jurisdiction to regulate a Federal project can be raised
before this Court for the first time.’ In International
Longshoremen’s Assn. v. Davis, 476 U.S. 380 (1986), this
Court considered a pre-emption issue raised only in post-
trial proceedings, holding, “the point is ... whether juris-
diction provided by state law is itself pre-empted by
federal law vesting exclusive jurisdiction over that contro-
versy in another dody.” Jd. at 387-388 (emphasis in
original).
Under the same rationale, in Three Affiliated Tribes of
the Fort Berthold Reservation v. Wold Engineering, 476
U.S. 877 (1986), this Court, on certiorari to a state
supreme court, considered a supremacy pre-emption is-
sue, neither explicitly raised below nor decided by the
state court. It too involved a “jurisdictional controversy.”
Id. at 878. As there, this Court’s consideration of the
Federal pre-emption issue “[would not] disservice...
{California Courts] or ... litigants, or impair[ ]...
[an] informed decision of the issue.” Jd. at 883.
*At the third level of review, Petition for Review to the California
Supreme Court, by a letter supporting review (February 19, 1991),
the Central Valley Project Water Association stated:
Such a nebulous and undefined standard to evaluate whether the
way local agencies are operating their publicly-owned water
system might well collide with federal supremacy issues. Califor-
nia may only impose conditions which are ‘not inconsistent with
congressional authorization.’ Environmental Defense Fund, Inc.
v. East Bay Mun. Utility Dist. (1980) 26 Cal.3d 183, 192. See,
California v. United States (1978) 438 U.S. 645, 674-675; Arizona
v. California (1963) 373 U.S. 546, 588. The CVP is a federal
project with many repayment obligations which could be jeopard-
ized by the endless scope of //D-II’s perception of the SWRCB’s
so-called expertise.
8
In view of the record presenting such a direct conflict
of power to decide between the Federal and state regula-
tory agencies, the merits of the supremacy and pre-
emption issues present a jurisdictional controversy that is
ripe for decision.®
IV
STATEMENT OF THE CASE
A. Federal Involvement
1. The Contracts
Petitioner was formed in 1911 under the California
Irrigation District law.’ Its purpose was and continues to
be to provide a publicly-owned structure so that desert
land could be protected against floods and “with the aid
of irrigation ... become enormously productive.’”
IID first contracted with the United States on October
23, 1918 obtaining the right to use Laguna Dam and the
obligation to pay the United States $1.6 million. Wilbur &
Ely, The Hoover Dam Documents, A589 (1948). This
*If this Court concludes that before the merits are reached, the
California Court of Appeal should directly address the supremacy
issue, a remand for that purpose may be appropriate. Cf., Environ-
mental Defense Fund, Inc. v. East Bay Municipal Utility District, 439
U.S. 811 (1978).
"Imperial Land Co. v. Imperial Irrigation District 173 Cal. 660, 668,
161 P. 113, 116 (1916). The Irrigation District Law, California Water
Code § 20500, et seg. (West 1984 & Supp. 1991).
“The Salton Sea cases, California Development Co. v. New Liverpool
Salt Co., 172 F. 792, 794 (9th Cir. 1909). “Irrigated farms were laid
out and sold, towns sprung up, a railroad was constructed, and in
verity this desert was made to blossom like the rose.” Jones v.
California Development Co., 173 Cal. 565, 568, 160 P. 823, 824 (1916).
;
: 9
contract was incorporated within the All-American Canal
contract of December 1, 1932, made “particularly pursu-
ant to the Act of Congress approved December 21, 1928
(45 Stat. 1057), designated the Boulder Canyon Project
Act....” Id. at A595, Appendix, 354.
In the All-American Canal contract the United States
promised that:
As far as reasonable diligence will permit said water
shall be delivered as ordered by the District, and as
reasonably required for potable and irrigation pur-
poses within the boundaries of the District in the
Imperial and Coachella Valleys in California. This
contract is for permanent water service... .
Id. at A607-608, Appendix, 374-375.
The words “said water’ referenced IID’s “third prior-
ity ... for beneficial consumptive use, [of] 3,850,000 acre-
feet of water per annum less the beneficial consumptive
use under the priorities designated in Sections 1 and 2
above.” Jd. at A606, Appendix, 371-372. The first two
priorities were for Palo Verde Irrigation District and the
Yuma Project. After IID’s priority, the fourth and fifth
priorities were for the Coastal Plain urban users.
IID’s Section 5 contract specifically required it to make
repairs according to the Secretary’s instructions (Art. 9;
Appendix, 360); to make payments for the canal’s cost
(Art. 10; Appendix, 361); to measure the water according
to the Secretary’s instructions (Art. 18; Appendix, 376);
to make written reports as directed by the Secretary (Art.
19; Appendix, 376); to conform to rules and regulations
prescribed by the Secretary (Art. 24; Appendix, 380); and
to submit to inspections by the Secretary (Art. 25; Appen-
dix, 380). Title was to remain in the United States subject
10
to repayment and the Secretary's discretion (Art. 22;
Appendix, 379).
In Bryant v. Yellen, 447 U.S. 352, 361, n.10 (1980), this
Court explained:
The All-American Canal system was not declared
completed until 1952. By that time, pursuant to the
1932 contract, the care, operation, and maintenance
of the system, with specified exceptions, had been
transferred to the District, although title to the
Imperial Dam and the canal remained in the United
States.
2. Federal Supervision
In 1964, the Secretary issued regulations providing
procedures “to the end that deliveries of Colorado River
water to each contractor will not exceed those reasonably
required for beneficial use under the _ respective
contract[s].””
IID and Burec officials had frequent interchanges, and
IID complied each year with the requirements of the
United States for conservation and reasonable use proce-
dures of its Colorado River water. Burec’s written testi-
mony (Appendix, 209) pointed out that it and IID had
made an agreement “in September 1981” (id. at 320) to
study “Water Conservation Opportunities in Imperial
Irrigation District, California.” Also, in 1983, Congress
authorized the Secretary “to engage in feasibility studies
of... (3) Water conservation and efficient use program,
All-American Canal relocation project, located in Impe-
rial County, California (Supplemental Appropriations
*Fed. Reg. 13,605-13,606 (1964) (codified at 43 C.F.R. Part 417),
(adding a new part to Title 43 of the Code of Federal Regulation).
See infra notes 19-21.
ee
11
Act, 1983, Pub. L. No. 98-63, 97 Stat. 301, 315 (July 29,
1983)) approving $397,000 to Bureau of Reclamation for
‘General Investigations’.” 97 Stat. at 352. The studies
initiated by the 1980 Buree/IID Agreement” resulted in
a published “Special Report, July 1984, Water Conserva-
tion Opportunities in Imperial Irrigation District,
California.”
Obviously, these actions by Burec officials were taken
pursuant to regulations made by the Secretary under
authority as esteblished by Congress in the Boulder
Canyon Project Act.
B. State Involvement
1. State’s Concern Was For “People Generally”
California has reached exactly the opposite conclusion
concerning the very same operational practices and long
standing supply/demand regime of IID’s Colerado River
water. The Court of Appeal characterized the dispute
between IID and the Board as whether water lost to
consumptive use in IID’s irrigation project “was or was
not reasonable.” J/D-II, 225 Cal. App. 3d at 553, 275 Cal.
Rptr. at 255, Appendix, 11. The Court accepted the trial
court’s characterization that “[t]he Board did not find
that IID’s uses of water, in themselves, were unreasona-
ble.” Id. at 570, 275 Cal. Rptr. at 265, Appendix, 35. It
also accepted the overwhelming evidence that IID
“achieved water use efficiencies which are above average
for comparable projects.” Jd. at 571, 175 Cal. Rptr. at 266,
Appendix, 38.
See also supra, notes 3-5.
"It contemplated, “Future public involvement [which] will include
discussions on MWD participation and cost-sharing in both planning
and construction activities.” Jd. at 20.
iil
12
Nevertheless, it upheld the Board’s orders because a
use which may be “ ‘beneficial’ in some respect... does
not make such use ‘reasonable’ when compared with
demands, or even future demands, for more important
uses.” Id. at 571, 275 Cal. Rptr. at 266, Appendix, 36-37.
These ‘“‘more important uses’”’ were described by the Court
of Appeal “for the benefit of people, generally, in the
state—i.e., for the benefit of undetermined and unnamed
future potential users.” Jd. at 569, 275 Cal. Rptr. at 264,
Appendix, 33-34.
It held that “the Board was to serve as supervisor and
regulator of the activities of actual [Colorado River]
water deliverers [id. at 567, Appendix, 31]... [and] that
the Board is the expert... [with] no call to defer to the
decisions of IID in the field of water waste.” Jd. at 568,
275 Cal. Rptr. at 264 (emphasis in original), Appendix,
33.
2. State Ignored Federal Approval
The Court recognized that water “used by IID and its
customers... [was] authorized by the Boulder Canyon
Project Act... [and] contracts for the delivery and allo-
cation... to users in the southwestern United States...
[and] finally resolved by the United States Supreme
Court in 1963.” Id. at 561, 275 Cal. Rptr. at 259, Appen-
dix 22. The substantial interference that the SWRCB’s
orders caused IID and its irrigation project were also
noted. The Court wrote:
There can be no doubt that the Board’s intrusion into
IID’s previously untrammeled administration of the
use of water in its district was substantial. ... While
the Board’s decision in no way interfered with IID’s
water, it most certainly presaged an interference with
IID’s utilization of that water once it traversed the
All-American Canal.
a eae
13
Id. at 562, 275 Cal. Rptr. at 260, Appendix, 24.
The Court also stated that the Board did “substantially
erode IID’s otherwise virtually complete contro! over its
water use [id. at 562, 275 Cal. Rptr. at 260, Appendix, 24]
... [and] IID... has been deprived of a great deal of the
property rights which it thought were inherent in its
allocation of Colorado River waters, made many years ago
by federal and state statute and private contract...
[and] eroded IID’s bargaining position... [with] the
Metropolitan Water District.” Jd. at 571, 275, Cal. Rptr.
at 266, Appendix, 37.
Finally, even though the Court characterized IID as
‘having a “vested right in a geographical part of the
country that is ‘far western,’ embracing a philosophy that
is independent in every sense of the word”’ (id. (emphasis
in original), Appendix, 37), it held “California is engaged
in an evolving process of governmental redefinition of
water rights... [and we affirm] this specific instance of
far-reaching change....” Id. at 573, 275 Cal. Rptr. at
267, Appendix, 40.
3. Order WR 88-20 Reallocates The Federal Priority
Rights
The Board’s Order WR 88-20 on September 7, 1988 is
the latest action which finally, severely and substantially
impacted IID’s prior federal water rights and public fise.
The Board found “that conservation of 367,900 acre-feet
per annum...is a reasonable long-term goal which will
assist in meeting future water demands. The Board will
retain jurisdiction to review implementation of the initial
plan and future water conservation measures.” Id. at 44,
Appendix, 97.
The Board’s initial plan ordered implementation by
IID of “water conservation measures... sufficient to con-
14
serve at least 100,000 acre-feet per annum by January 1,
1994.” Id. at 44, Appendix, 98. However, to the consterna-
tion of IID, the Board ordered IID “to secure funding...
of the selected water conservation measures using District
resources....” Id. at 45, Appendix, 98. No cost estimates
were made by the Board, but the Bureau’s estimates
(Appendix, 316) suggest a $100,000,000 range just for the
initial plan.
This order amounts to an award of damages against the
farmers of IID in favor of the urbanites on California's
south coastal plain who depend upon MWD for water.
MWD’s own Section 5 contract with the Secretary (Wil-
bur and Ely, supra, A507) gave it the last 550,000 acre
feet (fourth priority) of the 4.4 million acre feet of water
allocated by Congress to California. Arizona I, 373 U.S. at
565. Thus, unless IID increased its agricultural uses by
100,000 acre feet, the 100,000 acre feet of conserved water
would pass, automatically, to MWD under its lower
fourth priority. This windfall to MWD must, according to
Order WR 88-20, be totally funded by IID. Ergo, in effect,
a damage award in the $100 million and more range.
California, if not restrained, would turn the Secretary’s
allocation of Colorado River water among California’s
water users upside down. Moreover, IID’s present per-
feeted rights, rooted in the 1922 Colorado River Compact,
preserved by the Boulder Canyon Project Act and de-
ereed by this Court in 1979, are ignored. In effect, the
Board says it is necessary for IID’s farmers to pay for
creating conserved water for lower priority users, while
the Secretary says such costs should be borne by those
who would benefit from the new water.
15
The Secretary’s position is consistent with reeommen-
dations by the National Water Commission.” The Com-
mission’s Final Report noted that opportunities existed
for some transfers of water from relatively low value
agricultural use to higher value municipal and industrial
uses. Id. at 125, 229, 260. It envisaged legal protection for
existing users (id. at 266, n.76; Recommendation 7035,
269), eschewed “uncompensated transfers” (id. at 326),
and urged economic protection for present users and
areas of origin. Jd. at 330; Recommendation 8-3(b), 333.
V
REASONS FOR GRANTING WRIT
A. Congressional Policy, As Explicated By This Court
And Implemented By The Secretary Of Interior,
Would Be Substantially Eroded If IID-II Were
Allowed To Stand
1. National Concern For Irrigation Projects
A brief review of precedent provides the legal frame-
work for yet “another chapter in this original action
brought to determine rights to the waters of the Colorado
River.” Arizona v. California, 460 U.S. 605, 608 (1983).
The Court there reminded that “the Boulder Canyon
Project Act of 1928...[was] a vast federal effort to
"Water Policies For The Future, Final Report to the President and
to the Congress of the United States by the National Water Commis-
siont, June, 1973. The Commission was created by the National
Water Commission Act, Pub. L. No. 90-515, 82 Stat. 868 (Septem-
ber 26, 1968).
16
harness and put to use the waters of the lower Colorado
River.”’ Id. Also:
“The long and rich story...need not be repeated
here. We agreed with the Special Master that the
allocation of Colorado River water was to be gov-
erned by the standards set forth in the Project Act
rather than by the principles of equitable apportion-
ment...for] the local law of prior appro-
priation....”
Id. at 609."
This 1983 case explained that the law of the use and
disposition of the waters of the Colorado River “has been
and continues to be governed mainly by statutory consid-
erations.” Jd. at 616. The Court emphasized the important
role of “Certainty of rights...with respect to water
rights in the Western United States.” Jd. at 620.
In a supplemental decree, following Arizona I’s 1964
decree (376 U.S. 340), this Court established the present
perfected rights of IID “not to exceed (i) 2,600,000 acre-
feet...or (ii) the quantity... required for irrigation of
424,145 acres... whichever of (i) or (ii) is less, with a
priority date of 1901.” Arizona v. California, 439 U.S. 419,
429 (1979).
Justice White, who wrote for the majority, also authored Bryant
v. Yellen, 447 U.S. 352 (1980), and has participated as a member of
this Court in each chapter of this saga, since Arizona J. This seminal
ease provides the guidepost and answer for analyzing the case at bar.
Compare this Court’s use of First lowa Hydro-Electric Cooperative v.
FPC, 328 U.S. 152 (1946), in California v. FERC, 495 U.S. _-_, 109
L.Ed.2d 474, 485 (1990), and the case of FPC v. Tuscarora Indian
Nation, 362 U.S. 99 (1960), in Escondido Mut. Water Co. v. La Jolla
Indians, 466 U.S. 765, 786 (1984). The former was a four decade
precedent, the latter only two. At bar, this binding precedent covers
nearly three decades.
i
et ee ee ee
ee
17
These rights were to “be exercised only for beneficial
uses.” Jd. at 421. The “reasonable”’ requirement, pursuant
to Federal policy and implemented by 43 C.F.R. Part 417,
was also contained in the Secretary’s 1932 contract with
IID.
In the 1964 decree, this Court made clear that:
Water Controlled by the United States refers to the
water in Lake Mead, Lake Mohave, Lake Havasu and
all other water in the mainstream below Lee Ferry
and within the United States.
Arizona v. California, 376 U.S. 340 (1964).
Moreover, the State of California was specifically en-
joined from doing what Order WR 88-20 would, if not set
aside, accomplish in fact. The decree enjoined California:
(A) From interfering with the management and
operation... of regulatory structures controlled by
the United States;
(B) From interfering ...with releases and deliv-
eries,... of water controlled by the United States;
(C) From...purporting to authorize the diver-
sion of water... which has not been authorized by the
United States for its particular use;
(D) From... purporting to authorize the consump-
tive use of water from the mainstream in excess of the
quantities permitted under Article II of this decree.”
Id. at 346-347."*
Article II of the decree (id. at 341-346) set forth, in injunctive
form, the manner by which officers of the United States were tb
operate the Boulder Canyon Project in conformity with the directives
of Congress as interpreted in Arizona v. California, 376 U.S. at 341.
18
In Arizona I, the Court made manifestly clear that
Congress did not intend for the states to “frustrate
efficient operation of the project and thwart full realiza-
tion of the benefits Congress intended this national pro-
ject to bestow.” Arizona I, 373 U.S. at 590. Also:
With the health and growth of the Lower Basin at
stake, Congress [passed] ... the Project Act... har-
ness[ed] ...the bountiful waters of the Colorado to
sustain growing cities, to support expanding indus-
tries, and to transform dry and barren deserts into
lands that are livable and productive.
Id. 588-589."°
A principal purpose of the Boulder Canyon Project Act
was to again foster irrigation, which had existed 2,000
years ago, by the United States undertaking “to build as a
national project the necessary works to control floods and
store river waters for irrigation....” Id. at 555.'°
Congress directed the Secretary “to allocate the water
among users within each State.” Jd. at 579. This
The promotion of agricultural irrigation was also an important
aspect of the Central Valley Project developed under the Reclama-
tion Act of 1902. In Ivanhoe v. McCracken, 357 U.S. 275 (1958), this
Court explained: “In developing these projects the United States is
expending federal funds and acquiring federal property for a valid
public and national purpose, the promotion of agriculture.” Id. at 294.
Likewise, as there, here “it seems farfetched to foresee the Federal
Government ‘turning its back upon a people... and allowing their
lands to revert to desert.” Jd. at 299.
This congressional concern for promotion of irrigation projects
caused this Court to decide that the City of “Fresno has no preferen-
tial rights to contract for project water, but may receive it only if, in
the Seeretary’s judgment, irrigation will not be adversely affected.
Fresno v. California, 372 U.S. 627, 631 (1963).
ee
Pe eet ee eS Oe et ee
Nat he
ha ERD OIE: Nis A me WOES
19
“supremacy given the Secretary’s contracts... [included
power] to decide which users within each State would get
water.” Id. at 580. Congress also specifically directed that
the Secretary was to make “no charge .. . for water or for
the use, storage, or delivery of water for irrigation or for
potable purposes in the Imperial or Coachella Valleys.”
BCPA, 43 USC $617. Yet, remarkably, if the SWRCB
orders are allowed to stand, the state will, contrary to
Congressional directive, levy huge charges against IID
for use of Colorado River water.
Federal policy provides that a primary focus of this
national project was to foster reclamation and irrigation
of public’’ and private desert lands for agricultural pur-
poses and pursuits. State policy, according to JID-II,
primarily foeuses on so-called “more important uses.”
IID-II, 225 Cal. App. 3d at 571, 275 Cal. Rptr. at 266,
Appendix, 37.
Article II of the Court’s 1964 decree made clear that
water was to be released for use in California, “only
pursuant to valid contracts therefor made with such users
by the Secretary of Interior, pursuant to Section 5 of the
Boulder Canyon Project Act....” Arizona v. California,
376 U.S. at 343. There was to be no water for “people,
generally, in the state” as approved by the subject opin-
ion — IID-II, 225 Cal. App. 3d at 569, 275 Cal. Rptr. at
264, Appendix, 33-34.
2. Implementation By 43 C.F.R. Part 417
In 1964, the Secretary formally implemented his pow-
ers to supervise the reasonable use and conservation of
water under the Boulder Canyon Project Act and the
In 1942... the District expanded its boundaries to include
271,588 acres of the unpatented public lands.” Bryant, supra, 447
U.S. 360, n. 9. See, IID’s Contract, Art. 23. Appendix, 379.
20
Section 5 contracts by adopting Part 417 of Title 43 of the
Code of Federal Regulations. See supra notes 9-10. On
July 3, 1969, these rules were revised in their entirety “to
establish new procedures for the adoption of recommen-
dations relating to water conservation pvactices in the
diversion, delivery, distribution, and use of Colorado
River water...to the end that deliveries of Colorado
River water to each contractor will not exceed that reason-
ably required for beneficial use.” 34 Fed. Reg.
11,499-11,500 (1969) (codified at 43 C.F.R. § 417).
Except for changes pertaining to Indian reservations
(43 C.F.R. § 417.5), Part 417 is substantially the same in
its eurrent form as adopted in 1964. 43 C.F.R. §417
(1990). IID has conformed to Federal requirements
thereunder. It requires the Regional Director to consult
with contractors (43 C.F.R. § 417.2, Appendix, 344),
make recommendations and determinations (43 C.F.R.
§ 417.3, Appendix, 345) and gives contractors a right to
appeal to the Secretary of the Interior. Jd.
It requires the recommendations and determinations of
the Regional Director to be based on many water manage-
ment factors such as:
the area to be irrigated, climatic conditions, location,
land classifications, the kinds of crops raised, crop-
ping practices, the type of irrigation system in use,
the condition of water carriage and distribution facil-
ities, record of water orders, and rejections of or-
dered water, general operating practices, the
operating efficiencies and methods of irrigation of
"In 1972, Part 417 was revised “to specifically include Indian
reservations and Federal establishments in the group of water users
required to follow conservation practices. ...” 37 Fed. Reg. 18,076-
18,078 (1972) (codified at 43 C.F.R. § 417).
: pe ee a Oe ee eee ee a ee alee eee
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21
the water users, amount and rate of return flows to
the river, municipal water requirements and the per-
tinent provisions of the Contractor’s Boulder Canyon
Project Act water delivery contract.
43 C.F.R. § 417.3, Appendix, 345.'°
Thus, Federal policy and directive vests in the Secre-
tary (1) the contract-making power, (2) the power to
make allocations among users in each state, (3) and the
power to supervise and control the distribution and use of
Colorado River water developed and stored by the Boul-
der Canyon Project. The promotion of successful irriga-
tion projects according to perceived financial capacity of
the agricultural economy was clearly intended.”
3. Summary
It is clear that under Federal policy the Secretary of
Interior has been designated as the decision-maker for
determination of what are reasonable practices for use
including conservation of Colorado River water. He has
implemented this function by adopting 43 C.F.R.
Part 417. This regulation has been applied to IID’s
practices annually since 1965. He considered IID’s prac-
tices to be reasonable and that requiring additional con-
"This specificity of Federal standards for establishing reasonable-
ness stands in stark contrast to the lack of any adopted rules by the
Board and of any enactments by the California Legislature establish-
ing standards for irrigation practices.
*° Although IID was, and still is, obligated to repay the full costs of
construction for the All-American Canal, the obligation was without
an interest cost. Bryant, 447 U.S. at 361, n.10. The ability to sustain a
viable agricultural economy would be seriously burdened by Califor-
nia’s ad hoc effort at “far-reaching change.” //]D-JI, 225 Cal. App. 3d
at 573, 275 Cal. Rptr. at 267, Appendix, 40.
22
servation measures at this time was “economically
infeasible.”” Appendix, 339.
On the other hand, in view of the far-reaching change in
California water law forged by the Court in JID-II, the
SWRCB is now the State’s expert given “supervision over
water waste permitted by anyone in the state, including
IID....” IID-II, 225 Cal. App. 3d at 567, 275 Cal. Rptr. at
264, Appendix, 31. This administrative agency has deter-
mined that IID’s practices are unreasonable.”
The Court of Appeal said that Decision 1600 “[i]n no
way interfered with IID’s contractual and statutory enti-
tlement to Colorado River water, [but] it most certainly
presaged an interference with IID’s utilization of that
water once it traversed the All-American Canal.” Jd. at
562, 275 Cal. Rptr. at 260, Appendix, 24.”
Instead of such intrusive and far-reaching orders,
which result in wholesale reallocations, Congress has
*'The basic rationale — to require IID to financially aid Californi-
ans generally — is clearly stated. See, Decision 1600, 19, 23, 29, 52,
56, 66, Appendix, 174, 179, 184-185, 206, 210, 219-220; WR 84-12, 16,
Appendix, 141; WR 88-20, 44, Appendix, 98. In fact, IID received
good grades from the Board, except for not funding conservation
measures for future strangers. See, WR 88-20, 4-16; Appendix, 59-71.
**At that point the Court discussed Decision 1600's benign require-
ment to prepare “a comprehensive water conservation plan.” Decision
1600, 67, Appendix, 220. As the trial court observed, “Decision 1600
simply requires the District to prepare plans... .” IJD-II, 225 Cal.
App. 3d at 562, 275 Cal. Rptr. at 260, Appendix, 23-24; Statement of
Decision, Appendix, 49. However, the presagement of Decision 1600
certainly became reality in WR 88-20 when the Board ordered IID to
fund the conservation of 100,000 acre feet and retained jurisdiction
to consider requiring IID to fund the cost of far greater conservation
measures.
a
_——
23
proceeded with orderly development of the Colorado seek-
ing to preserve and enhance prior rights.”
B. When State Action Interferes With Congressional
Policy And Directives — “State Law Has No Place”
1, Arizona I
In Arizona I, this Court succinctly stated the pre-
emption principle applicable to the utilization of Colorado
River water by California users with Section 5 contracts.”
It stated:
“(I]t is the Act and the Secretary’s contracts, not
the law of prior appropriation, that controls the
“For example, Congress consented to the Upper Colorado River
Basin compact, executed on October 11, 1948, “in a bill approved by
the President on April 6, 1949, 63 Stat. 31....” (Nathanson, Updat-
ing The Hoover Dam Documents, 97 (1978)); the “Colorado River
Storage Project Act became law on April 11, 1956, 70 Stat. 105” (id.
at 99); Congress was advised about the Secretary's actions and
general principles and operating criteria “were first published in the
Federal Register, 27 F.R. 6851, July 19, 1962” (id. at 107); the
Colorado River Basin Project Act, authorizing the Central Arizona
Project, became law on September 30, 1968, Pub. L. No. 90-537, 82
Stat. 885; 43 U.S.C. §§ 1502, et seq. (id. 195-216); Congress contin-
ued its concern with the Mexican Salinity Problem (id. 217-222); the
Colorado River Basin Salinity Control Act became law June 24, 1974,
Pub. L. No. 93-320, 88 Stat. 266, 43 U.S.C. 1571 (id. 223-230); on
April 7, 1977 Congress enacted legislation to deal with drought
conditions of 1976-1977, Pub. L. No. 95-18, 91 Stat. 36; appropria-
tions were made to study opportunities for water conservation in
Imperial Irrigation District in 1980, Pub. L. No. 96-336, 94 Stat.
1063, and in 1983 additional appropriations were made to study an
Ail-American Canal relocation project, Pub. L. No. 98-63, 97 Stat.
301, 315, 352.
*4In essence, as the California Supreme Court explained in Ivanhoe
Irrig. Dist. v. All Parties & Persons, 53 Cal.2d 692, 704, 350 P. 2d 69,
24
apportionment of water among the States. Moreover
...the Seeretary in choosing between users within
each State and in settling the terms of his contracts
is not bound by these sections to follow state law.”
Arizona I, 373 U.S. at 586.
‘Where the Government, as here, has exercised this
power and undertaken a comprehensive project for
the improvement of a great river and for the orderly
and beneficial distribution of water, there is no room
for inconsistent state laws.”’
Id. at 587.”
“Section 18 plainly allows the States to do things not
inconsistent with the Project Act or with federal
control of the river, for example, regulation of the use
of tributary water and protection of present per-
fected rights.... What other things the States are
free to do can be decided when the occasion arises.
But where the Secretary’s contracts, as here, carry
out a congressional plan for the complete distribu-
tion of waters to users, state law has no place.”
Id. at 588 (footnote omitted).”
75, 3 Cal. Rptr. 317, 323 (1960), “[t]he federal government with
federal funds has lawfully developed water — project water...
[which] [i]n a very real sense...is...the property of the United
States.”
In Arizona v. California, 283 U.S. 423 (1931), Arizona sought to
restrain Secretary Wilbur from proceeding with construction of
Boulder dam because he had not complied with state law. The Court
dismissed the petition stating, “[t]he United States may perform its
functions without conforming to the police regulations of a state.” Jd.
at 451.
*°An entirely different issue would be presented if IID, pursuant to
Cal. Water Code § 1011 (West 1985 & Supp. 1991), (Appendix, 351),
25
2. California v. United States
California v. United States, 438 U.S. 645 (1978), does
not detract from previous Supreme Court pronounce-
ments about congressional actions and intentions perti-
nent to the Boulder Canyon Project. In Arizona I, the
Court explained how Congress was dealing with an inter-
national stream system which traverses 1,300 miles before
emptying in the Gulf of California in the Republic of
Mexico. Arizona I, 373 U.S. at 552.
By contrast, California involved the “Central Valley
Project” (California v. United States, 438 U.S. at 647),
and waters “of the Stanislaus River that will be im-
pounded behind the New Melones Dam [which] arise and
flow solely in California.” Jd. at 651. The United States
filed to appropriate unappropriated water and objected to
the Board’s “attached 25 conditions... .” Jd. at 652.
The Court noted that the Reclamation Act of 1902 was
reflective of “‘ ‘cooperative federalism,” (id. at 650) and
stated that the history of reclamation contained a “consis-
tent thread of purposeful and continued deference to
state water law by Congress.” Jd. at 653. However, in
contrast to the Boulder Canyon Project Act, the Reclama-
tion Act of 1902 contemplated that “once the waters were
released from the Dam, their distribution to individual
landowners would again be controlled by state law.” Jd. at
667.
The Court reiterated that “Congress did not intend to
relinquish total control of the actual distribution of the
reclamation water to the States... [and] that state water
law does not control in the distribution of reclamation
were to create conserved water and, with consent of the Secretary,
agree on terms to transfer the conserved water to users on Califor-
nia’s south coastal plain.
26
water if inconsistent with other congressional directives
to the Secretary.” Jd., at 668, n.21 (emphasis in original).
It distinguished the New Melones dam project from the
Boulder Canyon Project “because of the unique size and
multistate scope of the [Boulder Canyon] Project, Con-
gress did not intend the States to interfere with the Secre-
tary’s power to determine with whom and on what terms
water contracts would be made.” Jd. at 674. It held that
California could impose “conditions on the permit
granted to the United States which are not inconsistent
with congressional provisions authorizing the project in
question.” Id.
In sum, as this Court stated in Bryant, when writing
about present perfected rights:
‘While the source of present perfected rights is to be
found in state law, the question of whether rights
provided by state law amount to present perfected
rights within the meaning of § 6 is obviously one of
federal law.”
Bryant, 447 U.S. at 371, n.22.
A fortiori, the reasonableness of irrigation practices
and operational procedures under the Boulder Canyon
Project is also obviously one of federal law to be decided
by the Secretary and as provided in 43 C.F.R. Part 417.
At bar, there is no jurisdiction for the state to adjudi-
eate or regulate in a manner which the United States
considers to be economically infeasible. Doubtless the
intrusive orders will impact IID’s ability to complete
repayment, or perform other obligations to the United
States, and materially disturb the integrity and viability
of Imperial County’s agricultural economy. However, it is
enough that judgment by the Secretary about what consti-
tutes reasonable operating practices for this irrigation
project would be superseded and overridden by California
27
if IJD-II were allowed to stand. The Secretary, by Con-
gressional mandate, by annual reviews, detailed studies,
and three decades of experience, is the decision maker to
supervise conservation of Boulder Canyon Project water
and to reach balanced judgments “[i]n a large complex
situation such as IID....”’ Decision 1600, 26; Appendix,
182.
3. California v. FERC (herein “Rock Creek’’)
This recent unanimous opinion concerned “overlapping
federal and state regulation of a hydroelectric project
located near a California stream.” California v. FERC,
495 U.S. _, 109 L.Ed.2d 474, 483 (1990). It provides
persuasive logic in support of this petition.
FERC had required a “minimum flow rate for the
project at 20 efs. during the entire year... [but] the
WRCB issued an order directing the licensee to comply
with higher minimum flow requirements... .” Jd. at ___,
109 L.Ed.2d at 484.7"
The pre-emption issue turned on “the meaning of § 27
of the FPA....” Id. at , 109 L.Ed.2d at 485. In
analyzing that section, the Court explained:
[T]he meaning of § 27 and the pre-emptive effect of
the FPA are not matters of first;impression. Forty-
four years ago, this Court in First Iowa construed
the section and provided the understanding of the
FPA that has since guided the allocation of state and
federal regulatory authority over hydroelectric
projects.
Id. at __, 109 L.Ed.2d at 485.
“The Board's draft order required “permanent minimum flow rates
of 60 efs. from March through June and 30 cfs. during the remainder
of the year.” Id.
28
Similarly, for the dispute at bar, this Court should
again “decline at this late date to revisit and disturb the
understanding of...{BCPA] set forth in... [An-
zona I\” and adhere to its precedential holdings because
there “has been no sufficient intervening change in...
[federal] law, or indication that... [Arizona I] has
proved unworkable: ...” Jd.
The “broad and paramount federal regulatory role”’
(id. at 487), established by the FPA for the Federal
Power Commission was similar, in nature, to that estab-
lished by the Boulder Canyon Project Act for the Secre-
see
tary. The Boulder Canyon Project Act has, also, “ ‘seen
careful, intense, and sustained congressional attention’.
Id. at 487. See supra note 23.
To permit the subject opinion to stand would condone
‘* ‘a dual system of futile duplication’.”’ Jd. at 488. There is
“no room or need for conflicting state controls” of IID’s
irrigation project. Jd. In the BCPA “ ‘there is no sugges-
tion that the two agencies both shall have final author-
ity.” Id. Finally, “[a]llowing California to impose
significantly higher... requirements would disturb and
conflict with the balance... [determined by the Secre-
tary].” Id. at 491.
VI
CONCLUSION
Any fair comparison of benefit/cost relationships would
make ludicrous the results of WR 88-20 which ordered
IID to fund all economic costs.” IID’s farmers would
**For example, as between MWD and IID, comparative population
(14.5 million v. 100,000), assessed valuation ($597 billion v. $2.5
billion), and annual revenues ($495 million v. $24 million) suggest
that MWD’s water hardship should not be converted into an economic
disaster for IID. Clearly, MWD can more easily afford the cost of
hor ay 4
~ ee ne en
29
gain nothing in the form of increased crop yields or
higher crop prices by funding the conservation facilities.
However, if the coastal users provided the funding, they
would receive additional supplies at costs much less than
other potential new supplies. The Secretary was sensitive
to these very basic but important economic considera-
tions, but the Board was not. It knew that farmers were
“experiencing economic hardship” (WR 88-20, 19, Appen-
dix, 73), but cavalierly directed that “the possibility of
funding certain conservation measures with revenue from
electrical power sales should be investigated.” Jd. at 20,
Appendix, 74. Principles of basic fairness, utilized in a
balanced judgment by the Secretary and deeply embed-
ded in law, have been overlooked by the Board. See, ¢.g.,
Nollan v. California Coastal Comm., 483 U.S. 825, 841-842
(1987); First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S. 304, 318-319
(1987); United States v. Gerlach Live Stock Co., 339 U.S.
725, 752-753 (1950). “No reason appears why those who
get the waters should be spared from making whole those
from whom they are taken.”
creating conserved water for its benefit, than those who brave the
desert clime to produce food and fiber for the Nation's well-being.
30
Because California, contrary to the BCPA and binding
precedent, has intruded upon the Secretary’s powers and
obligations to supervise and control the distribution,
conservation, and use of Colorado River water, this Court
should issue a writ of certiorari to review the subject
opinion.
Respectfully submitted,
HORTON, KNOX, CARTER & FOOTE
AND
JENNINGS, ENGSTRAND &
HENRIKSON
A Professional Law Corporation
By:
Paul D. Engstrand
Attorneys for Petitioner
Imperial Irrigation District
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