# Petition for Writ of Certiorari — Imperial Irrigation District v. State Water Resources Control Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2325%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 857 ## Text ' . . o> ‘? 5° Suareme Cour, v. 4: 2 Dp ILSsE ' t, oO we 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 - —. " >) —ete ie Na a I Dieta Te at A al — aS 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 oo BW Be ale en eae A ecient BC