Petition for Writ of Certiorari — County of San Joaquin v. California Water Resources Control Board

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“EL &O

or 721 OCT 27 097

Orfict UF tHe CLERK

In The

Supreme Court of the United States

October Term, 1997

COUNTY OF SAN JOAQUIN, et al.,

Petitioners,

VS.

STATE WATER RESOURCES CONTROL BOARD, et al.,

Respondents.

On Petition For Writ Of Certiorari To The

Court Of Appeal Of The State Of California

Third Appellate District

PETITION FOR WRIT OF CERTIORARI

NEuUMILLER & BEARDSLEE DANTE JOHN NoMELLINI, Esa.

A PROFESSIONAL CorRPORATION (Counsel of Record)

THomMaAS J. SHEPHARD, Esq. Danie, A. McDaniet, Eso.

P. O. Box 20 Nomellini, Grilli

Stockton, CA 95201 & McDaniel

Telephone: (209) 948-8200 Professional Law

H ae , Dyer, Corporations

pein he Tenner, LLP 235 East Weber Avenue

: P. O. Box 1461

M. Z , Esa.

— A. Seer nt Stockton, CA 95201-1461

KaRNA E. HArRIGFELD, Eso. elephone: (209) 465-5883

2291 W. March Lane, THomas M. ZUCKERMAN, Esa.

Suite B100 146 - 148 West

Stockton, CA 95207 Weber Avenue

Telephone: (209) 472-7700 Stockton, CA 95202

Brewer, PatripGeE & HERRICK Telephone: (209) 943-2004

JouN H. Herrick, Esq. Roserts & Roserts

P. O. Box 70383 Rem Roserts, Eso.

Stockton, CA 95267 311 E. Main St., Suite 202

Telephone: (209) 474-2509 Stockton, CA 95202

Telephone: (209) 941-8714

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 vi

OR CALL COLLECT (402) 342-2831 \ \

QUESTIONS PRESENTED

i. determinations under Rule 19(b) of the Federal

Rules of Civil Procedure, of whether to Proceed in the

absence of a necessary party, what is the weight to be

placed on Constitutional considerations, such as Due Pro-

cess and Equal Protection, when such considerations

come into conflict with sovereign immunity?

II. What is the standard of review on appeal of a

trial court’s determination pursuant to Rule 19(b) of the

Federal Rules of Civil Procedure that a necessary party

which cannot be joined is indispensable, and that the

action must be dismissed?

III. When, under Section 8 of the Reclamation Act of

1902, the federal government obtains appropriative water

right permits and seeks modification of permit terms and

conditions, do state courts have jurisdiction to review the

adjudicatory Proceeding in which the appropriative per-

mit was issued or modified?

QUESTIONS PRESENTED - Continued

IV. Is there a denial of Equal Protection in a state

water right proceeding before California’s State Water

Resources Control Board initiated on the joint petition of

California’s Department of Water Resources, and the

United States Bureau of Reclamation, when an interested

party with vested rights is denied judicial review of the

proceeding in state court due to the federal government's

assertion of its sovereign immunity, and the state govern-

ment’s assertion of its Eleventh Amendment immunity in

the United States courts, so as to avoid review in the

courts of both the state and the United States?

V. Is there a denial of Due Process in a state water

right proceeding before California’s State Water Resources

Control Board initiated on the joint petition of California’s

Department of Water Resources and the United States

Bureau of Reclamation, when an interested party with

vested water rights is denied judicial review of the pro-

ceeding in state court due to the federal government's

assertion of its sovereign immunity, and the state govern-

ment’s assertion of its Eleventh Amendment immunity in

the United States courts, so as to avoid review in the

courts of both the state and the United States?

VI. Are the courts of the United States and the state

without jurisdiction to provide complete review of an

adjudicatory proceeding of a state administrative body -

concerning appropriative water right permits of a federal

agency acting under the direction of Section 8 of the

Reclamation Act of 1902, and a state agency, which jointly

initiate proceedings before the body to modify their

respective permits?

ea eel

iii

PARTIES TO THE PROCEEDING BELOW

The Petitioners County of San Joaquin, Stockton East

Water District, Central San Joaquin Water Conservation

District, Central Delta Water Agency, South Delta Water

Agency, and Reclamation District No. 2072 are political

subdivisions of the State of California. R.C. Farms, Inc. is

a California corporation without parent, subsidiary, or

affiliate companies, and Alexander Hildebrand is an indi-

vidual resident of the State of California.

Respondent State Water Resources Control Board is

an administrative body of the State of California, and

Respondents John P. Caffrey, Marc Del Piero, James M.

Stubchaer, Mary Jane Forster, and John W. Brown, sit as

members of the Board.

Real Parties In Interest and Respondents are the

United States of America, acting by and through the

Department of the Interior, Bureau of Reclamation, and

the State of California, acting by and through the

Resources Agency and its Department of Water

Resources.

Intervenors and Respondents are Westlands Water

District, San Luis Water District, Panoche Water District,

Kern County Water Agency, Santa Clara Valley Water

District, Metropolitan Water District of Southern Califor-

nia, and State Water Contractors.

TABLE OF CONTENTS

Page

Opinions And Decisions Below .................... 1

Wg S02 805s 6c 0s baa cak lok n bis cee 2

Constitutional And Statutory Provisions Involved... 2

5. CE Se ee RE ow IN 5

Fas “FE CINE ov 5 ac oc vases ncibeccense 5

B. Procedural Statement oo... siccsceseccvacs 10

Il. Reasons Relied On For Allowance Of The Writ.. 20

Pix. ROOIOOIA 6.ni's aha ves bk Ghee 20

B. The Circumstances Of This Water Rights

Case And The Federal Government's Partici-

pation Are So Compelling As To Warrant

The Exercise Of Discretion To Provide ;

NS oss cin kei cake contest ae 22

C. Review Should Be Allowed To Consider The

Weight To Be Accorded Constitutional, Com-

mon Law, And Statutory Concerns When Rule .

19(b) Determinations Are Made............. 25

D. Review Should Be Allowed In Order To

Resolve Conflict Among The Circuits As To

The Standard Of Review In Rule 19(b)

EE ona ook wind Cebn eb chedie sis 28

ees Ce 5 eRe ee ee 29

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Burka v. Aetna Life Ins. Co., 87 F.3d 478 (D.C. Cir.

4 kA nia 4h Cha dens hehe co 5b ho hes cars 19, 29

California v. United States, 438 U.S. 645, 98 S.Ct.

2985, 57 L.Ed.2d 1018 (1978)...... Dy Fé Eke By Boe Ot

Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S.

226, 17 S.Ct. 581, 41 L.Ed. 979 (1897)... .......... 26

Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10

eR Re REO dnd hans pie ou 5 sph cu lie bh Pad 5, 6

Keweenaw Bay Indian Community v. Michigan, 11

Rie, TOGA AE CAE, POG sk iu scks kev ves ceas'sc 19, 28

Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31

SE GE SRUT ABs os 5650s re pak ae cu eka aes bas 26

Provident Bank & Trust Co. v. Patterson, 390 U.S.

102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968)........... 27

Sindia Expedition, Inc. v. Wrecked and Abandoned

Vessel Known as the Sindia, 895 F.2d 116 (3d Cir.

| a cad ema an pi rayon Alene eey tenes deg 19, 29

Thunder Basin Coal Co. v. Southwestern Public Ser-

vice Co., 104 F.3d 1205 (10th Cir. 1997)......... 19, 29

Walsh v. Centeio, 692 F.2d 1239 (9th Cir. 1982) ....19, 29

Unitep STATES CONSTITUTION

Fourteenth Amendment, Section 1................. a 20

Due Process Clause............. 16, 20, 21, 26, 27, 29

Equal Protection Clause............. 20, 21, 26, 27, 29

Bleventh Amendment... 52. 6.066 6c os ci icc be 22, 24

TABLE OF AUTHORITIES - Continued

Page

FEDERAL STATUTES AND RULES

16 U.S.C. § 1531-1544 -—- Endangered Species

RRR a ET OP ee ee Poe ee ye My 8, 21, 22

es ee ry eee Ee ery Oe ty 16

Oe Rhein a BRE hh ae Wadvedendavos paca cacewene cauen 2

33 U.S.C. § 1313 - Clean Water Act.......... 16, 21, 22

GS UBA Beek i cika tev wenss hen isis chia es 2

Central Valley Project Improvement Act, Title 34

of Public Law 102-675 (1992) .....0...0605 owesies 8, 21, 22

Public Law 99-546, § 103 (October 27, 1986).......... 7

Reclamation Act of 1902, 32 Stat. 390, Section 8

se bkeed sinh kweeb Gates bien > oh) Ble Be ale ae

Federal Rules of Civil Procedure, Rule 19....... passim

Rules of the Supreme Court of the United States,

RU SS occ ot awa ch cean ane Wake taku es Chane hae 2

CALIFORNIA CASES

County of San Joaquin v. State Water Resources Con-

trol Bd., 54 Cal.App.4th 1144 (1997)................ 6

United States v. State Water Resources Control Bd.,

SEE CP Ge CASO oes cp svevsvvedeusss 6, 7, 28

CALIFORNIA STATUTES

Code of Civil Procedure § 389................ 4, 18, 29

Codt of Civll Poncemure § 21060) iis. (ieee oie 13

Code of Civil Procedure § 1085............ccceeeees 13

Vii

TABLE OF AUTHORITIES - Continued

Page

Code of Civil Procedure § 1094.5................... 13

Public Resources Code §§ 21000, et seq. — Califor-

nia Environmental Quality Act.................... 13

PON SE EN ss Co cub bn ae oi ok AO. es | 23

Water Code § 1360 (currently Water Code § 1126) ..13, 24

etter pen Cag UOT TILT: PRIME REE TS ae Neate a ae 10

ne I oe ee Partie a ae 13

Water Code §§ 12220, et WI Pia 5a Siais ok vals Sas 13

Water Code §§ 12230, et Mb a4 chu wkubacdk ewes seca. 13

Water Code §§ 13140, et WON AS Aa eed Cows aha vad 23

merce o

OPINIONS AND DECISIONS BELOW

The Order of the Supreme Court of the State of

California, denying the Petition for Review in that Court,

is printed as Appendix 1 hereto at App.1, and is unre-

ported docket number $062126.

The Opinion of the Court of Appeal of the State of

California, Third Appellate District, affirming the Judg-

ment of Dismissal of the Superior Court, is printed as

Appendix 2 hereto at App.2, and is reported at 54

Cal.App.4th 1144.

The Ruling on Submitted Matter made by the Supe-

rior Court of the State of California, County of Sacra-

mento, wherein the Superior Court determined that the

United States Bureau of Reclamation was an indispens-

able party and that because the Bureau refused to waive

its sovereign immunity, the action would be dismissed, is

printed as Appendix 3 hereto at App.22, and is unre-

ported docket number 95 CS 01642.

The water rights decision of the State Water

Resources Control Board of the State of California enti-

tled “Order Denying Petitions For Reconsideration Of

Order WR 95-6, Which Approved Changes In The Water

Rights Of The California Department Of Water Resources

And The United States Bureau Of Reclamation Affecting

The Bay-Delta Estuary” is printed as Appendix 4 hereto

at App.27, and is unreported Order: WR 95-14.

The water rights decision of the State Water

Resources Control Board of the State of California enti-

tled “Order Regarding Petition For Changes In Water

Rights That Authorize Diversion And Use Of Waters

Affecting The San Francisco Bay /Sacramento-San Joaquin

Delta Estuary” is printed as Appendix 5 hereto at App.70,

and is unreported Order: WR 95-6.

The Judgment of Dismissal of the Superior Court of

the State of California, County of Sacramento, is printed

as Appendix 6 hereto at App.151, and is unreported

docket number 95 CS 01642.

JURISDICTION

The jurisdiction of this Court is invoked under Title

28, Section 1257(a) of the United States Code. The judg-

ment of the Superior Court was entered on February 21,

1996. (App.151.) The Decision of the Court of Appeal of

the State of California made on May 6, 1997, which peti-

tioners seek to have reviewed was rendered by the high-

est court of the State of California to which review could

be had. (App.2.) Discretionary review on the Petition for

Review by the California Supreme Court, the state court

of last resort, was denied on July 30, 1997. (App.1.) This

petition is timely filed under Rule 13 of the Rules of the

Supreme Court of the United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment of the Con-

stitution of the United States:

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Section 8 of the Reclamation Act of 1902, 32 Stat. 390,

codified in pertinent part at Title 43 United States Code

section 383 provides:

Nothing in this Act shall be construed as

affecting or intended to affect or to in any way

interfere with the laws of any State or Territory

relating to the control, appropriation, use, or

distribution of water used in irrigation, or any

iii

| vested right acquired thereunder, and the Secre-

| tary of the Interior, in carrying out the provi-

sions of this Act, shall proceed in conformity

with such laws, and nothing herein shall in any

| way affect any right of any State or of the Fed-

| eral Government or of any landowner, appro-

| priator, or user of water in, to, or from any

: interstate stream or the waters thereof.

| Rule 19 of the Federal Rules of Civil Procedure pro-

vides:

(a) Persons to be Joined if Feasible. A

person who is subject to service of process and

whose joinder will not deprive the court of juris-

diction over the subject matter of the action

shall be joined as a party in the action if (1) in

the person’s absence complete relief cannot be

accorded among those already parties, or (2) the

person claims an interest relating to the subject

of the action and is so situated that the disposi-

tion of the action in the person's absence may (i)

as a practical matter impair or impede the per-

son’s ability to protect that interest or (ii) leave

any of the persons already parties subject to a

substantial risk of incurring double, multiple, or

otherwise inconsistent obligations by reason of

the claimed interest. If the person has not been

So joined, the court shall order that the person

be made a party. If the person should join as a

plaintiff but refuses to do so, the person may be

made a defendant, or, in a proper case, an invol-

untary plaintiff. If the joined party objects to

venue and joinder of that party would render

the venue of the action improper, that party

shall be dismissed from the action.

(b) Determination by Court Whenever

Joinder not Feasible. If a person as described in

subdivision (a)(1)-(2) hereof cannot be made a

party, the court shall determine whether in

equity and good conscience the action should

proceed among the parties before it, or should

be dismissed, the absent person being thus

regarded as indispensable. The factors to be

considered by the court include: first, to what

extent a judgment rendered in the person’s

absence might be prejudicial to the person or

those already parties; second, the extent to

which, by protective provisions in the judgment,

by the shaping of relief, or other measures, the

prejudice can be lessened or avoided; third,

whether a judgment rendered in the person’s

absence will be adequate; fourth, whether the

plaintiff will have an adequate remedy if the

action is dismissed for nonjoinder.

pleading asserting a claim for relief shall state

the names, if known to the pleader, of any per-

sons as prescribed in subdivision (a)(1)-(2)

hereof who are not joined, and the reasons why

they are not joined.

(d) Exception of Class Actions. This rule

is subject to the provisions of Rule 23.

California Code of Civil Procedure Section 389 pro-

vides:

(a) A person who is subject to service of

process and whose joinder will not deprive the

court of jurisdiction over the subject matter of

the action shall be joined as a party in the action

if (1) in his absence complete relief cannot be

accorded among those already parties or (2) he

claims an interest relating to the subject of the

action and is so situated that the disposition of

the action in his absence may (i) as a practical

matter impair or impede his ability to protect

that interest or (ii) leave any of the persons

already parties subject to a substantial risk of

ernie

incurring double, multiple, or otherwise incon-

sistent obligations by reason of his claimed

interest. If he has not been so joined, the court

shall order that he be made a party.

(b) If a person as described in paragraph

(1) or (2) of subdivision (a) cannot be made a

party, the court shall determine whether in

equity and good conscience the action should

proceed among the parties before it, or should

be dismissed without Prejudice, the absent per-

son being thus regarded as indispensable. The

factors to be considered by the court include: (1)

to what extent a judgment rendered in the per-

son’s absence might be prejudicial to him or

those already parties; (2) the extent to which, by

protective provisions in the judgment, by the

shaping of relief, or other measures, the preju-

dice can be lessened or avoided; (3) whether a

judgment rendered in the person’s absence will

be adequate; (4) whether the plaintiff or cross-

complainant will have an adequate remedy if

the action is dismissed for nonjoinder.

state the names, if known to the pleader, of any

persons as described in paragraph (1) or (2) of

subdivision (a) who are not joined, and the rea-

sons why they are not joined.

(d) Nothing in this section affects the law

applicable to class actions.

I. STATEMENT OF THE CASE

A. FACTUAL STATEMENT

Many of the basic facts underlying this case have

been visited by this Court in Dugan v. Rank, 372 U.S. 609,

83 S.Ct. 999, 10 L.Ed.2d 15 (1963), and California v. United

States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978).

California’s great Central Valley Basin includes the Sacra-

mento Valley in the north, containing the Sacramento

River. The basin also includes the San Joaquin Valley, in

the south, which includes the San Joaquin River. (Dugan,

372 U.S. 612.) Due to heavier rainfall in the north, the

Sacramento River has a “surplus” of water, but its valley

has little available tillable soil. (Ibid.) The San Joaquin

River, however, “is in the contrary situation.” (Id.) The

San Joaquin River joins the Sacramento River in the Sac-

ramento-San Joaquin Delta (hereinafter “Delta”), before

the Sacramento River empties into San Francisco Bay and

the Pacific Ocean. (Id.) The region including the San

Francisco Bay is known as the Bay-Delta Estuary.

California has two massive water projects, the Cen-

tral Valley Project (hereinafter “CVP”) operated by the

United States Bureau of Reclamation (hereinafter

“Bureau”), and the State of California’s State Water Pro-

ject (hereinafter “SWP”) operated by the state’s Depart-

ment of Water Resources (hereinafter “DWR”). (United

States v. State Water Resources Control Bd., 182 Cal.App.3d

82, 97 (1986); see also County of San Joaquin v. State Water

Resources Control Bd., 54 Cal.App.4th 1144, 1147 (1997)

App.4-5.) The appropriative water permits necessary for

these projects are issued by California’s State Water

Resources Control Board (hereinafter “Water Board”),

and the Bureau’s CVP is the Jargest reclamation project in

the United States. The Delta provides a conduit for the

transfer of water by these two projects, which store water

in reservoirs and divert water from rivers flowing into

the Delta. (United States v. State Water Resources Control

Bd., 182 Cal.App.3d 97.) Pumps at the southern edge of

the Delta are utilized to lift water into canals for trans-

port south to farmers in the Central Valley and to munici-

palities in Southern California. (Ibid.) The Bureau and the

DWR have a combined total of some 34 permits for

various units of the CVP and SWP authorizing the diver-

sion and use of the Delta’s waters. (Id.)

Petitioner County of San Joaquin is located partly in

the Delta, the San Joaquin River traversing the southern

part of the county before it joins the Sacramento River

just west of the county. Stockton East Water District

(hereinafter “SEWD”) is a local water district formed

pursuant to a special act of the State of California, and

Central San Joaquin Water Conservation District (“CS]-

WCD”) is a water conservation district formed under

state law. SEWD and CSJWCD are located in San Joaquin

County, and have contracts with the Bureau for the sup-

ply of water from New Melones Dam, the component of

the CVP involved in California v. United States, 438 U.S.

645. Petitioners Central Delta Water Agency and South

Delta Water Agency are political subdivisions of the state

representing the interests of riparian water right holders

and others in the Delta area. Reclamation District No.

2072 is an appropriative water right holder in the Delta

area, and R.C. Farms, Inc. and Alexander Hildebrand are

riparian water right holders in the Delta area.

Water quality degradation in the southern region of

the Delta is caused not by ocean water intrusion, but

instead “mainly by upstream depletions of the San Joa-

quin River and salt infusion from irrigation waste — water

runoff carried by the San Joaquin River.” (United States v.

State Water Resources Control Bd., 182 Cal.App.3d 121.)

The project operations of DWR and the Bureau “are inex-

tricably interrelated”, and as early as 1960 the Bureau and

DWR entered into a preliminary agreement for the coor-

dinated operation of the projects. (Ibid., 182 Cal.App.3d

131-132.) In 1986, Congress authorized and directed the

Secretary of the Interior to execute and implement the

“Agreement Between the United States of America and

the Department of Water Resources of the State of Cali-

fornia for Coordinated Operation of the Central Valley

Project and the State Water Project” dated May 20, 1985.

(Act of Congress approved October 27, 1986, Public Law

99-546, section 103, amending Act of August 26, 1937, 50

Stat. 850.)

Due to the alarm of the water exporters generated by

regional impacts of the federal Endangered Species Act,

16 U.S.C. sections 1531-1544 (1973) and the Central Valley

Project Improvement Act, Title 34 of Public Law 102-575

(1992), urban and agricultural water suppliers incredu-

lous about the threats the two acts posed to their Delta

exports, began a series of private meetings with represen-

tatives of federal and state agencies, including represen-

tatives of the Water Board, the adjudicatory body that

would be required to rule impartially in the proceedings

that would come. (CT 7.)! The San Joaquin County and

Delta interests, including those petitioners representing

riparian senior water right holders, were excluded from

these meetings. (CT 7.) These meetings resulted in the

execution of a contract referred to as the “Principles for

Agreement on Bay-Delta Standards” (hereinafter “Princi-

ples Agreement”). (Ibid; App.154; AR Box B, item 50.)

The admitted reasoning behind the Principles Agree-

ment was to meet the environmental needs of the Bay-

Delta Estuary while avoiding reduction in exports.

(App.156, paragraph 1.) In other words, the purpose was

to make sure that the water required by the Endangered

Species Act and most of the water required by the Central

Valley Project Improvement Act for environmental pur-

poses, to correct some of the problems created by the

exports, came from somewhere other than the junior

exporters. Indeed, the Principles Agreement specifically

provides:

[I]t is understood that protection of these

species [threatened and endangered] shall result

in no additional water cost [a mandated reduc-

tion of project supply] relative to the Bay-Delta

protections embodied in the Plan. . . . (App.158,

para 2(b).)

1 References to the record are cited in the following

manner: “CT” for Clerk’s Transcript; “RT” for Reporter's

Transcript; and “AR” for Administrative Record.

ae 8 UT

Moreover, the Principles Agreement dictated the

action to be taken by the state’s Water Board, the very

adjudicatory body to which the parties petitioned for the

necessary changes in their permits:

Consistent with the Framework Agreement,

the SWRCB will finalize the Plan and imme-

diately thereafter initiate water right proceed-

ings to implement the adopted Plan. (App.159,

para. 4(b).)

The Principles Agreement further sought to specify

the action to be taken by the Water Board:

Not later than three years following adop-

tion of this Plan, the SWRCB shall assign

responsibility for the following flows, together

with other measures in the watershed sufficient

to meet the narrative criteria, in the San Joaquin

River at Vernalis among the water right holders

in the watershed. (App.163, para. 1.)

and

This process will be under the sponsorship

of CUWA/AG, which commits to an open and

collaborative approach involving CALFED and

the environmental community, It is agreed that

detailed implementation for these Principles

will be finalized before publication of the final

SWRCB standards, which is currently planned

by March 31, 1995. (App.166, para. 6.2)

Consistent with the Principles Agreement, the Water

Board did initiate the water right proceedings and essen-

tially adopt the operative terms thereof. (App.132-137,)

* CUWA/AG is an abbreviation of California Urban Water

Agency/Agricultural Water Users, and CALFED is an

abbreviation of California Water Policy Council and Federal

Ecosystem Directorate, (App. 154.)

B. PROCEDURAL STATEMENT

This matter arises from the Bureau and DWR’s joint

petition to the Water Board for changes in the permits of

the Bureau and DWR in order to implement the Princi-

ples Agreement, and the Water Board’s adoption of its

Order Regarding Petition For Changes lL. Water Rights

That Authorize Diversion And Use Of Water Affecting

The San Francisco Bay/Sacramento-San Joaquin Estuary,

being Water Rights Order 95-6 (“WR 95-6”; App.70). WR

95-6 approved changes in the water right permits for the

SWP and the CVP, authorizing the diversion and use of

water affecting the San Francisco Bay/Sacramento-San

Joaquin Delta Estuary. (App.132-140; CT 715-780.)

On February 28, 1995, the state’s DWR filed with the

Water Board a joint petition (hereinafter “Petition for

Change”) on behalf of itself and the Bureau as operator of

the CVP pursuant to California Water Code Section 1702,

requesting changes in their existing, junior appropriative

water rights permits (“permits”) for the SWP and CVP.

(CT 546-550.) The Petition for Change requested that

some thirty-nine (39) permits, all junior to the water

rights of riparians and earlier appropriators, be modified.

The Petition requested authority for a significant change

in operations of the projects by implementation of a “joint

point of diversion” allowing the Bureau and DWR to

utilize each other’s export pumping facilities when the

other has reached its export limitation contained in their

respective water right permits. The petition further

sought relief from specified water export limitations pre-

viously mandated by the Water Board during the months

of April and May, and sought to further modify the

permits so as to parallel a Draft Water Quality Control

Plan for San Francisco Bay/Sacramento-San Joaquin

Delta Estuary (Bay-Delta Plan), incorporating the ele-

ments of the Principles Agreement. (App.77.) Coinciden-

tally, the draft Bay-Delta Plan was also released by the

ers

ie a

Water Board on December 15, 1994, the date of the Princi-

ples Agreement. (App.76.)

On April 18, 19, and 20, 1995, the Water Board held

public hearings on the Petition for Change. All peti-

tioners herein appeared at those hearings and objected to

the approval of the Petition for Change. At the public

hearings, DWR and the Bureau featured the Petition for

Change as their joint project, and the state’s DWR

assumed the lead role in the presentation of their joint

interests. (CT 1316-1342.)

The federal questions of concern in this matter were

raised as they appeared. The first issue to arise pertains

to Due Process in the adjudicatory proceedings before the

Water Board, raised in the written Central Delta Water

Agency, et al. Statement of Issues:

The subject petition and hearing is a water

right proceeding involving vested property and

contract rights of numerous parties. These rights

involve economic values of hundreds of millions

of dollars. The SWRCB is expected to preside as

an impartial adjudicator in these water right

matters. When the State and United States are at

the forefront of exporting water from the areas

and watersheds of origin and are parties to this

Proceeding, the need for SWRCB impartiality is

essential.

Without SWRCB impartiality, the parties to

water rights proceedings are deprived of due

Process of law.

The task of maintaining impartiality is

made even more difficult when the very same

people through whom the appointments to the

SWRCB are processed become involved in the

matters coming before the SWRCB. The involve-

ment of the Secretary, California Resources

Agency and the Secretary for Environmental

Protection, California Environmental Protection

Agency, in the “principles for agreement” is evi-

denced by their signature to the agreement.

Demand is hereby made that prior to com-

mencement of the April 18, 1995, hearing, the

SWRCB members and its staff make a full writ-

ten disclosure to each of the parties filing notice

of intent to appear as to the following:

1) All contacts with any of the parties to

the “Principles For Agreement on Bay-Delta

Standards Between the State of California and

the Federal Government” dated December 15,

1994, pertaining to such agreement and the

negotiations leading to such agreement.

2) A general description of the nature of

each such contact...

3) As to any such contacts which involved

notes, recordings or written communications,

the location and times when inspection will be

allowed.

4) If any such contact involved any agree-

ment, commitment or concession as to the time,

nature or disposition of any SWRCB proceeding,

a written statement signed by the SWRCB mem-

ber or staff person setting forth the specifics

should be provided to each party.

If after such disclosure it appears that the

impartiality of any SWRCB member or staff per-

son has been compromised, then disqualifica-

tion should be addressed. (AR Box E, item 314,

pages 2-3.)

On June 8, 1995, the Water Board made its adjudica-

tory wate: rights decision, admitting the attendance of its

staft at meetings for negotiation of the Principles Agree-

ment, but rejecting the challenge to its impartiality and

adopting Order WR 95-6 (App.91). The Water Board

essentially granted the Petition for Change requested by

the Bureau and DWR, and authorized the joint points of

diversion. (CT 127-191; App.132-137.)

On July 7, 1995, petitioners timely filed a Petition for

Writ of Mandate in the Superior Court of California in

Sacramento County, pursuant to California Code of Civil]

Procedure sections 1094.5, 1085, and 1060, and California

Water Code section 1360 (currently Water Code section

1126). The Petition For Writ Of Mandate sought review of

WR 95-6 on the grounds that the Water Board was violat-

ing various California statutes, including the California

Environmental Quality Act (California Public Resources

Code sections 21000, et seq.). (CT 16-35, 40-42.) Entirely

independent of the challenge to the Water Board’s action

in adopting WR 95-6, petitioners sought a declaration by

the trial court that the Water Board had an independent

obligation to enforce the requirements of California Water

Code Sections 11460, 12220, et seq., and 12230, et seq. (CT

48-49.)

The Thirteenth Cause of Action of the Petition For

Writ Of Mandate raised the issue of the denial of Due

Process in the proceeding in the Superior Court of Cali-

forn.a seeking to review the action of the Water Board:

143. Respondent SWRCB has deprived

PETITIONERS of due Process of law as follows:

(a) By allowing staff, including those

with direct responsibility on water right matters

pertaining to WR 95-6 to Participate in

numerous private meetings with the water

exporters and their attorneys where water

allocations to meet Delta standards were dis-

cussed and where no notice was given to inter-

ested parties (including PETITIONERS) or the

public.

(b) By allowing SWRCB members to

receive communications pertaining to such pri-

vate meetings without notice to interested par-

ties (including PETITIONERS) or the public.

with direct responsibility on water right mat-

ters, to participate in meetings where water

allocations to meet Delta standards were dis-

cussed without such meetings being duly

noticed and open to the public.

(d) By failing to disclose and allow the

inspection of all board and staff communica-

tions pertaining to the Principles for Agreement

by all interested parties prior to the close of the

evidentiary hearing on WR 95-6.

(e) By failing to allow inspection of

the November 29, 1994, “Confidential” mem-

orandum pertaining to “Delta Protection Stan-

dards” from the Chairman of the Water Policy

Council to the Governor.

(f) By failing to allow for cross-exam-

ination of those staff and board members shown

by the documents disclosed by the SWRCB to

have participated in meetings and negotiations

pertaining to said Principles for Agreement.

(g) By failing to allow for a hearing

prior to decision WR 95-6 dealing with whether

or not the impartiality of the SWRCB and/or

staff had been compromised by the “ex parte”

communications with the water exporters relat-

ing to said Principles for Agreement.

(h) Because the order, an adjudicatory

action and an administrative decision, autho-

rizes changes in terms so vague that Petitioners

must guess at its meaning in order to protect

their due process rights, WR 95-6 violates Arti-

cle I, Section 7(a) of the California Constitution.

(CT 46-48.)

On October 6, 1995, a stipulation for intervention was

filed with the Superior Court naming Kern County Water

Agency, Metropolitan Water District of Southern Califor-

nia, Santa Clara Valley Water District, Westlands Water

District, and the State Water Contractors (a joint powers

authority comprised of public agencies) as intervenors in

the litigation. (CT 249-254.)

In the Superior Court the Bureau made a special

appearance and elected not to waive its sovereign immu-

nity. (CT 664-672; App.23.) The Water Board brought a

motion for judgment on the pleadings requesting that the

trial court dismiss the action on the ground that the

Bureau was an indispensable party, and that in the

absence of the Bureau the case should not continue and

should be dismissed. (App.23; CT 688-710, 1204-1215,

1251-1261.) Petitioners then raised their concerns respect-

ing the denial of any opportunity for review of the WR

95-6 proceedings, in the context of their Memorandum Of

Points And Authorities In Opposition To Respondent's

Motion To Dismiss:

Probably the most important factor facing

the Court is that if the United States is deemed

an indispensable party, Petitioners will be com-

pletely denied any remedy in state or federal

court on the issues raised in this case. (CT 1303.)

On January 26, 1996, the trial court heard oral argu-

ments from the parties and the respondents argued two

points. (RT 4.) First, respondents claimed that petiticners

had an alternate remedy in an action pending in federal

court to which some of the petitioners were parties,

claiming that petitioners could pursue their state law

substantive claims in the pending federal court action

initiated previous to WR 95-6. (RT 4-7.) Petitioners Cen-

tral Delta Water Agency, South Delta Water Agency, Rec-

lamation District No. 2072, R.C. Farms, Inc. and

Alexander Hildebrand were not parties to the federal

court action and such action did not in any way review

the subject Water Board Order WR 95-6. (CT 389.) Sec-

ondly, the respondents claimed that they would suffer

prejudice because of the potential for conflicting judg-

ments should the case proceed without the United States

being a party. (RT 7-9.) On February 6, 1996, the trial

court granted the motion, finding the Bureau to be an

indispensable party, and dismissed the action. (App.25;

CT 1863-1867.) Thus, the trial court never reached the

substantive issues raised in the Petition For Writ of Man-

date, including the Due Process claim raised in the Thir-

teenth Cause of Action. The trial court did, however,

determine that petitioners had an adequate remedy in the

pending federal action to which the several petitioners

were not even parties. (App.24; CT 1865.) Judgment dis-

missing the action was then entered on February 21, 1996.

(App.151; CT 1868-1872.)

On April 18, 1996, petitioners filed a timely notice of

appeal to the Third Appellate District of the Court of

Appeal of the State of California. (CT 1885-1887.) The lack

of any remedy and Due Process issues were raised in the

Court of Appeal of the State of California, in Appellant's

Reply Brief:

Only in the rare occasion when the federal

government elects to consent to jurisdiction,

(historically when the federal and state govern-

ments are at odds) will a California State court

be allowed to review such a decision. To illus-

trate the potential damages of sustaining this

decision, if the SWRCB were to act in collusion

with the federal government or in a corrupted

manner, without regard to the due process

rights of an individual, there would be no

method by which a party could challenge such

an action. The checks and balances afforded by

our concept of due process would be eliminated.

(Reply Brief, 2.)

and

As such, sustaining the trial court’s decision

effectively slams the judicial door on any other

party who may be injured, eliminating their

Statutory right to challenge actions of the

SWRCB in State court, and any due process

review of decisions involving property rights.”

(Reply Brief, 4.)

and

A vital portion of this State regulatory

scheme provides affected parties with an oppor-

tunity for judicial review of SWRCB actions in

order to protect the property and due process

tights of those individuals which may be

affected by decisions of the SWRCB. (Water

Code Sections 1360, 1705.5, 1730 and 1840) This

fundamental right to judicial review cannot be

merged into and subsumed by a distinct dispute

with the federal government over project opera-

tions. (Reply Brief, 8.)

and

The Appellants’ claims against the SWRCB

rise above the dispute of some of the Appellants

with the federal government. The mere exis-

tence of this separate, albeit important, legal

dispute with the United States in federal court is

being used by the SWRCB as both a shield to

provide absolute immunity for their own actions

and a sword to deprive Appellants of access to

the judicial system. (Reply Brief, 8.)

and

Such a result would appoint the United

States gatekeeper to State court review. In order

to obtain the statutory and due process right to

review, a property rights holder would have to

obtain approval of the United States as well. The

gatekeeper would have to determine if, in that

instance, it wished to waive or enforce its sover-

eign immunity. Affording the federal govern-

ment such de facto veto over a State court’s

jurisdiction to review and protect fundamental

property rights undermines the practical and

legal meaning of such rights. (Reply Brief, 31.)

The decision of the Court of Appeal of the State of

California affirming the trial court’s decision filed on

May 6, 1997 (App.2.), did not specifically address the Due

Process claim, but did address the lack of a remedy. The

Court of Appeal determined that the lack of any remedy

was but one of the factors to be considered in determin-

ing if the action should be dismissed, that it was not an

outcome determinative factor, and that the Court was not

convinced that petitioners did not have an adequate rem-

edy in the federal proceeding to which some of the peti-

tioners were parties. (App.16-18.) The Court of Appeal

held:

There is sufficient similarity in the general

types of relief sought in the federal and state

actions to support the trial court’s conclusion

appellants have an adequate remedy in the

pending federal action. [footnote omitted]

(App.18.)

In order to determine the standard of review of the

trial court’s determination to dismiss, due to the virtual

identity of Rule 19 of the Federal Rules of Civil Pro-

cedure, and the California statute modeled after Rule 19,

Code of Civil Procedure section 389, the Court of Appeal

looked at the decisions of the United States Court of

Appeals, and found that the standard of review was for

an abuse of discretion.

The state Court of Appeal found as follows:

In the federal courts “[a] district court’s

determination of indispensability under [Fed-

eral Rule of Civil Procedure] 19(b) is reviewed

for an abuse of discretion.” [footnote omitted]

bc eeiciaiaeaicniiiaiiiiiiaiiiaiiiaiiiiail

(Thunder Basin Coal Co. v. Southwestern Public

Service Co. (10th Cir. 1997) 104 F.3d 1205, 1210;

see also Burka v. Aetna Life Ins. Co. (D.C. Cir.

1996) 87 F.3d 478, 483; Sindia Expedition, Inc. v.

Wrecked and Abandoned Vessel Known as the Sindia

(3d Cir. 1990) 895 F.2d 116, 121; Walsh v. Centeio

(9th Cir. 1982) 692 F.2d 1239, 1242.) (App.

12-13.)

In a portion of the footnote omitted from the above,

the state Court of Appeal alluded to the conflict among

the circuits, by virtue of the Sixth Circuit’s decision that

Rule 19(b) determinations are reviewed de novo citing

Keweenaw Bay Indian Community v. Michigan (6th Cir.

1993) 11 F.3d 1341 at 1346. (App.13.)

The issues were further raised in the California

Supreme Court in the Petition For Review:

The resulting iniquity and loss of peti-

tioners’ rights to the due process allowed by law

in obtaining review concerning their vested

water rights, directly resulting from the dis-

missal due to the lack of an indispensable party,

is not some isolated aberration limited to the

circumstances of this case. Nor is it unlikely to

repeat itself. (Petition for Review, 15.)

and

It should be noted that the riparian peti-

tioners’ water rights are vested water rights,

and there should be no opportunity for the

impairment or prejudice to such rights without

according petitioners the full measure of the

protections afforded by the processes estab-

lished by law. Otherwise, serious questions con-

cerning due process are raised. (Petition for

Review, 16.)

and

By elimination of the right of review, the

Bureau and DWR have virtually quashed the

due process of law. (Petition for Review, 19.)

The California Supreme Court denied the petition for

review without comment, so it did not specifically deal

with the issues. (App.1.)

II. REASONS RELIED ON FOR ALLOWANCE OF

THE WRIT

A. INTRODUCTION.

This case comes from the highest state court in which

review could be had and there do exist compelling rea-

sons for the Court to exercise its discretion to grant a writ

of certiorari. Review should be granted due to the unique

nature of the underlying controversy and the potential

impact of the dismissal. This case also provides the

opportunity to examine the factors and equitable consid-

erations involved when indispensable party determina-

tions are made, and the weight to be accorded

considerations of Due Process and Equal Protection. Fur-

ther, the state Court of Appeal looked to the decisions of

the United States Courts of Appeals for the standard of

review of a trial court’s dismissal due to the absence of an

indispensable party, which decisions are in conflict. The

state Court of Appeal thus determined the standard of

review of Rule 19(b) determinations, thereby deciding an

important federal question which this Court has not set-

tled, but should settle.

This case arises during a critical period in the histori-

cal development and application of law in California. It

concerns the location and operation of the world’s largest

reclamation project, which is operated by the federal

government, and the senior water rights of petitioners

who are riparians are implicated. Water is truly the most

precious but often abused and taken for granted resource.

ener

This case comes at a time when the state and federal

agencies devoted to developing and managing water

resources for export, and traditionally pitted against the

interests of the watersheds in which the water originates,

have been mandated by the Central Valley Project

Improvement Act of 1992 (Public Law 102-575, sections

3401-3412, 106 Stat. 4706-4731, hereinafter “CVPIA”), the

Clean Water Act (Title 33 United States Code section

1313), and the Endangered Species Act (Title 16 United

States Code section 1536, hereinafter “ESA”) to undo,

mitigate, and alleviate the environmental damage their

development and management has created. Due to the

dominant role played by the federal government in the

development of California’s water resources, the issue of

greatest concern embedded in this case is whether there

is to be any review of Water Board decisions when the

Bureau and the state are both interested parties. The

rulings below disallowing review are abhorrent to the

concepts of Due Process and Equal Protection founded on

traditional notions of fair play.

This case also brings into question the procedures to

be followed under state law, when the federal govern-

ment is involved, pursuant to Section 8 of the Reclama-

tion Act of 1902 and this Court’s decision in California v.

United States, 438 U.S. 645, 57 L.Ed.2d 1018, 98 S.Ct. 2985

(1978). While these questions arise in the context of the

standard of appellate rule in a determination under Rule

19(b) of the Federal Rules of Civil Procedure, the predom-

inant issue is the weight to be accorded constitutional

considerations conflicting with the application of sover-

eign immunity, when determining whether to dismiss

pursuant to Rule 19(b).

B. THE CIRCUMSTANCES OF THIS WATER

RIGHTS CASE AND THE FEDERAL GOV-

ERNMENT’S PARTICIPATION ARE SO COM-

PELLING AS TO WARRANT THE EXERCISE

OF DISCRETION TO PROVIDE REVIEW.

This case presents circumstances which are worthy of

this Court’s attention. If left to stand, the proceedings

below before the Water Board will be immune from

review, due solely to the federal government's refusal to

waive its sovereign immunity. In the world’s largest rec-

lamation project, the state and federal water exporters

will have as effectively avoided judicial review of the

Water Board proceedings, as if the administrative

branches of government had simply closed the doors of

the judicial branch, thus avoiding any checks and bal-

ances.

A truly dangerous precedent is established by allow-

ing judicial review in a water rights proceeding to be

entirely avoided by the federal government’s status as an

interested party, and its selective assertion of sovereign

immunity. It simply is not consistent with fair play to be

left to pursue only a part of an action in federal court,

where there the state enjoys the immunity of the Eleventh

Amendment of the United States Constitution and review

of the Water Board’s decision is not allowed. Such game-

smanship by the state and federal governments was cer-

tainly not what the framers had in mind at the

Constitutional Convention, and it is in conflict with the

determination by this Court that, pursuant to Section 8 of

the Reclamation Act of 1902, federal reclamation projects

must comply with state water laws except where such

laws are inconsistent with congressional directives. (Cali-

fornia v. United States, 438 U.S. 645, 664, 668, 673, 678-79,

98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978).)

The Principles Agreement which led to this matter

was, quite simply, the Bureau and DWR water exporters’

response to the environmental restraints imposed upon

them by the CVPIA, ESA, and the Clean Water Act, in

order to minimize any loss or reduction of their export

water. While the physical method of satisfying the envi-

ronmental demands for water without reducing exports is

of great concern to those such as petitioners within the

watershed or area of origin, what is of even greater

concern is the method employed to obtain the unreview-

able legal sanction of the Water Board.

California Water Code section 174 provides for the

establishment of the Water Board which is to exercise

adjudicatory and regulatory functions, combining the

water rights and the water pollution and water quality

functions of state government. The Principles Agreement

represents a blatant and audacious attempt by the Bureau

and DWR, as well as the other signatories thereto, to

predetermine and influence the outcome of the Water

Board’s adjudicatory and regulatory functions. The Prin-

ciples Agreement provides:

Consistent with the Framework Agreement,

the SWRCB will finalize the Plan and immediately

thereafter initiate water right proceedings to imple-

ment the adopted Plan. In implementing the Plan,

the SWRCB will act in compliance with all provi-

sions of law which may be applicable, including,

but not limited to, the water rights priority sys-

tem and the statutory protections for areas of

origin. (App.159, para 4(b), emphasis added; see

also other quotations from the Principles Agree-

ment previously set forth at pages 8-9.)

Thus, the Bureau and DWR, junior appropriative

water rights holders, and other signatories, sought to

influence and dictate the outcome of the Water Board’s

adjudicatory proceeding as well as its regulatory pro-

ceedings in the adoption of a Water Quality Control Plan

pursuant to California Water Code sections 13140, et seq.

While the significance of this event itself should not go

unnoticed, nor unremedied, it truly was only the prelude

to the alarming events which would unfold after the

Water Board made its subject Order: WR 95-6, almost

entirely implementing the Principles Agreement.

Despite the fact that petitioners filed a timely petition

for review of WR 95-6, as expressly provided for in Water

Code section 1360 (currently Water Code section 1126), this

action was dismissed only because it was determined that

the Bureau, one of the very parties petitioning for the result

of WR 95-6, was an indispensable party which would not

waive its sovereign immunity from suit in state court. It is

unclear whether it was by design or unwitting fortune, but

the two operators of the most massive water expe’ system

in the world who themselves asked the Water voard for

changes in their permits did so without risk of judicial

review of a favorable decision by the Water Board. Since the

two operators were both proper parties, and due to the

Eleventh Amendment immunity of the state in federal court

and the sovereign immunity of the federal government in

state court, review could only be obtained if the Bureau

would consent to suit in state court or the state would

consent to suit in federal court. In this manner, the two

operators effectively reduced those who have a right of

review pursuant to Water Code section 1360 (currently Water

Code section 1126) to only themselves.

The consequential loss of petitioners’ rights to pursue

the review process allowed by law to obtain review con-

cerning their vested water rights is, should DWR and the

Bureau so desire, likely to repeat itself. This is due to the

substantially coordinated and joint nature and operation

of the state and federal water projects which lends itself

to, if it does not require by definition, joint petition

whenever the state and federal governments desire to

modify a permit to suit their plan of export.

The issues of law involved in this case transcend the

local context and subject matter in which they arise,

particularly since the decision of the state Court of

Appeal is a published decision. Left alone, the decision of

the state Court of Appeal will usher in not merely a novel

method of avoiding judicial review in water right cases,

but in any case in which the federal government's partici-

pation is significant enough to make the federal govern-

ment a necessary party. Left alone this case will be

provocative of a selective avoidance of effective review,

and a total undermining of the process of review not

merely of proceedings before the Water Board, but also in

any other proceedings before a state administrative

agency performing an adjudicatory function wherein a

federal agency is an interested party. By asserting sover-

eign immunity, the federal government can avoid review

of state agency decisions in which the federal govern-

ment has prevailed. The joint Participation of the state

and federal governments in funding everything from

roads to schools may thus be completely immunized from

any review of administrative agency determinations. In

such event the public’s confidence in those processes is

placed at great risk and is in jeopardy of being lost.

Under the circumstances, it is respectfully submitted that

review is appropriate.

C. REVIEW SHOULD BE ALLOWED TO CON.-

SIDER THE WEIGHT TO BE ACCORDED

CONSTITUTIONAL, COMMON LAW, AND

STATUTORY CONCERNS WHEN RULE 19(b)

DETERMINATIONS ARE MADE.

This case exposes the need to reconcile conflict

among the requirements of the United States Constitu-

tion, the common law, the Federal Rules of Civil Pro-

cedure, and the Reclamation Act of 1902. The conflict

arises from the requirements of Due Process and Equal

Protection, sovereign immunity, indispensable party, Rule

19(b) determinations, and the Section 8 requirement, as

determined by this Court, that makes “it abundantly clear

that Congress intended to defer to the substance, as well

as the form, of state water law.” California v. United States,

438 U.S. 645, at 675, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978).

Review is appropriate to resolve the weight and priorities

to be accorded such requirements when they compete.

It should be noted that the riparian petitioners’ water

rights are vested water rights, and there should be no

opportunity for the impairment or prejudice to such

rights without according petitioners the full measure of

the protections afforded by the processes established by

law. Otherwise, petitioners are not provided with Due

Process or Equal Protection of the established law.

Review should be permitted because the determination to

dismiss the action below due to the assertion of sovereign

immunity by the United States results in an unwarranted

preference for the archaic common law concept of sover-

eign immunity, as against the requirements of Due Pro-

cess and Equal Protection set forth in the Fourteenth

Amendment protecting the fundamental rights of peti-

tioners. The common law concept of sovereign immunity

is a rule derived from the concept that the king can do no

wrong. But it is that very concept which provided the

fodder for the American Revolution, and provided the

impetus for the Declaration of Independence and the

United States Constitution. When sovereign immunity

collides with the Due Process and Equal Protection

clauses of the Fourteenth Amendment, sovereign immu-

nity should give way.

Although the proceedings below may have provided

petitioners with due process in form, the proceedings did

not provide petitioners with the substance of Due Pro-

cess, and this Court has indicated that “In determining

what is due process of law, regard must be had to sub-

stance, not to form.” (Chicago, B. & Q. R. Co. v. City of

Chicago, 166 U.S. 226, 235, 17 S.Ct. 581, 41 L.Ed. 979

(1897).) Although the Due Process Clause may not require

appellate review after a “full and fair trial on the merits”,

which is what petitioners should have obtained before

the Water Board, “When an appeal is afforded, however,

it cannot be granted to some litigants and capriciously or

arbitrarily denied to others without violating the Equal

Protection Clause.” Lindsey v. Normet, 405 U.S. 56 at 77, 92

S.Ct. 862, 31 L.Ed. 2d 36 (1972). Allowing sovereign

premenenatseseeine cianlciesnae i ariel ae nee

immunity to dictate the dismissal in this case denied

petitioners the right to appeal the Water Board’s decision,

providing the right only to the Bureau.

In Provident Bank & Trust Co. v. Patterson, 390 U.S.

102, 118-119, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), this

Court recognized that some factors in a Rule 19(b) deter-

mination of whether to dismiss may be so compelling by

themselves as to individually dictate a result:

The decision whether to dismiss (i.e., the

decision whether the person missing is “indis-

pensable”) must be based on factors varying

with the different cases, some such factors being

substantive, some procedural, some compelling by

themselves, and some subject to balancing

against opposing interests. (Emphasis added.)

The interests of Due Process and Equal Protection are

certainly more compelling than the interest of sovereign

immunity, particularly in this case where the Bureau uses

sovereign immunity merely to thwart judicial review of a

state’s administrative proceeding initiated by the Bureau

itself. Here it can be fairly stated that the use of sovereign

immunity has allowed the government to abuse its

power, employing the indispensable party determination

as an instrument of oppression engendering distrust.

The assertion and application of sovereign immunity

in this case further conflict with the express Congres-

sional directive in Section 8 of the Reclamation Act of

1902 requiring the federal government to acquire water

rights in conformity with state law, and this Court's

holding in California v. United States, 438 U.S. 635. The

concept that control of the waters should remain subject

to state law is substantially diluted, if it does not neces-

sarily provide a directive to the federal government to

comply with the full measure of controls imposed by

state law, including the basic component of allowing a

right of judicial review of the adjudicatory action taken

by the Water Board at the behest of the Bureau. To allow

judicial review to be avoided by a party initiating a

proceeding through the use of sovereign immunity by

that same party is inequitable and undesirable. If Rule

19(b) is a rule of equity and good conscience, the dis-

missal in this case must not be allowed to stand.

In its proper perspective, this is not a case in which

sovereign immunity was asserted during the preiiminary

stages at the trial court level, which was the adjudicatory

proceeding before the Water Board. (United States v. State

Water Resources Control Bd., 182 Cal.App.3d 82, 113

(1986).) In reality, the Bureau acting in accordance with

Section 8 of the Reclamation Act and the state’s DWR

themselves initiated the action to modify their permits,

and the filing in the Superior Court was merely a first

level appeal challenging the adjudicatory determination

of the state’s Water Board in WR 95-6. The Bureau thus

did not assert sovereign immunity until at the stage

reviewing the very matter it had joined in initiating

before the Water Board.

When in Rule 19(b) determinations, either constitu-

tional concerns or congressional directives are in conflict

with sovereign immunity, a singular compelling circum-

stance is present and should weigh in favor of the

requirements of the Constitution, and the directives of

Congress. This case presents an opportunity to clarify the

weight to be accorded various concerns when considering

dismissal in a Rule 19(b) case.

D. REVIEW SHOULD BE ALLOWED IN ORDER

TO RESOLVE CONFLICT AMONG THE CIR-

CUITS AS TO THE STANDARD OF REVIEW

iN RULE 19(b) DETERMINATIONS.

The state Court of Appeal determined that the Sixth

Circuit of the federal Court of Appeals has “explicitly

subjected Rule 19(b) determinations to a de novo stan-

dard” in Keweenaw Bay Indian Community v. State, 11 F.3d

1341, at 1346 (6th Cir. 1993). (App.13.) The District of

Columbia, Third, Ninth and Tenth Circuits, as noted by

the state Court of Appeal, have taken a contrary position,

reviewing for an abuse of discretion. (Thunder Basin Coal

Co. v. Southwestern Public Service Co., 104 F.3d 1205, 1210

(10th Cir. 1997); Burka v. Aetna Life Ins. Co., 87 F.3d 478,

483 (D.C. Cir. 1996); Sindia Expedition, Inc. v. Wrecked and

Abandoned Vessel Known as the Sindia, 895 F.2d 116, 121 (3d

Cir. 1990); Walsh v. Centeio, 692 F.2d 1239, 1242 (9th Cir.

1982).) (App. 12-13.)

The standard of review when a Rule 19(b) determina-

tion has been made is an important question of federal

law in need of settlement, since the circuits are in dis-

agreement. Consequently, and particularly in the circum-

stances of this case, it is respectfully submitted that

review should be ordered.

Ill. CONCLUSION

The weight to be accorded constitutional and statu-

tory concerns as against sovereign immunity concerns,

and the standard of review to be applied on review of an

indispensable party determination under Rule 19 of the

Federal Rules of Civil Procedure, and California Code of

Civil Procedure section 389, are of substantial import and

adequate to warrant, if not compel, review under the

circumstances of this case. Here the two primary

exporters of water in the State of California have been

permitted to manipulate the procedural process for

obtaining and modifying their junior appropriative water

rights permits, using their sovereign immunities so as to

deprive interested parties of the right of review and

redress after the adjudicatory proceedings before the

Water Board. If this is to be permitted, particularly when

the compromise of the underlying proceeding is in issue,

a serious flaw in our system of jurisprudence has been

exposed. By elimination of the right of review, the Bureau

and DWR have virtually quashed the Due Process of law

and denied petitioners Equal Protection. If this result is to

be sanctioned, it should be only after the scrutiny of this

Court. For all of the reasons set forth above, it is respect-

fully submitted that review on a writ of certiorari should

be granted.

Dated: October 24, 1997

Respectfully submitted,

Nome.unt, Gritu & McDANieEL

PROFESSIONAL _LAw CORPORATIONS

Dante JOHN NOMELLINI

APPENDIX TABLE OF CONTENTS

Page

Order of the Supreme Court of the State of Cali-

fornia, unreported docket number S062126,

PY Sie WOOF a bes Sisco eteadusce cee: App. 1

The Opinion of the Court of Appeal of the State of

California, Third Appellate District, County of

San Joaquin v. State Water Resources Control

Board, 54 Cal.App.4th 1144, filed May 6,

de oe RTP IER a App. 2

Ruling on Submitted Matter made by the Superior

Court of the State of California, County of Sac-

ramento, unreported docket number 95 CS

01642, filed February 6, 1996 ................ App. 22

Order Denying Petitions For Reconsideration Of

Order WR 95-6, Which A Me Changes In

The Water Rights Of The California Department

Of Water Resources And The United States

Bureau Of Reclamation Affecting The Bay-Delta

Estuary made by the State Water Resources

Control Board of the State of California, unre-

ported Order: WR 95-14, adopted September 6,

PP SAR AS Gob GRR SrETTVAsAceubb ed tienen coco. App. 27

Order Regarding Petition For Changes In Water

Rights That Authorize Diversion And Use Of

Waters Affecting The San Francisco Bay /Sacra-

mento-San Joaquin Delta Estuary made by the

State Water Resources Control Board of the

State of California, unreported Order: WR 95-6,

Rr IE Wt oko kr ies ass ce eevenuas App. 70

Judgment of Dismissal of the Superior Court of

the State of California, County of Sacramento,

County of San Joaquin v. State Water Resources

Control Board, filed February 21, 1996, unre-

ported docket number 95 CS 01642......... App. 151

APPENDIX TABLE OF CONTENTS - Continued

Page

Principles For Agreement On Bay-Delta Standards

Between The State of California And The Federal

Government, dated December 15, 1994........ App. 154

App. 1

APPENDIX 1

Third Appellate District No. C023548

$062126

IN THE SUPREME COURT OF CALIFORNIA

(Filed Jul. 30, 1997)

COUNTY OF SAN JOAQUIN Et Al., Appellants

Vv.

STATE WATER RESOURCES CONTROL BOARD Et Al.,

Respondents

Appellants’ petition for review DENIED.

Baxter, J., did not participate.

GEORGE

Chief Justice

App. 2

APPENDIX 2

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

COUNTY OF SAN JOAQUIN et C023548

al, (Super. Ct. No.

Plaintiffs and Appellants, 95CS01642)

Vv. (Filed

May 6, 1997)

STATE WATER RESOURCES

CONTROL BOARD et al.,

Defendants and Respondents,

UNITED STATES OF AMERICA,

Blt... Ot Oi

Real Parties in Interest

and Respondents

WESTLANDS WATER DISTRICT

et al.,

Interveners and Respondents.

APPEAL from a judgment of the Superior Court of

Sacramento County. Thomas Cecil, Judge. Affirmed.

Jeanne M. Zolezzi, Steven A. Herum, Karna E. Har-

rigfeld, Neumiller & Beardslee, John Herrick, Brewer,

Patridge, Gerlomes & Herrick, Thomas M. Zuckerman,

Reid Roberts, Roberts & Roberts, Dante John Nomellini,

App. 3

Daniel A. McDaniel, and Nomellini, Grilli & McDaniel,

for Plaintiffs and Appellants, County of San Joaquin et al.

Daniel E. Lungren, Attorney General, Roderick E.

Walston, Chief Assistant Attorney General, Charles W.

Getz IV, Assistant Attorney General, Clifford T. Lee and

Linus Masouredis, Deputy Attorneys General, and Bar-

bara Leidigh, for Defendants and Respondents, State

Water Resources Control Board et al.

Maria A. liuzuka, for Real Party in Interest and

Respondent, United States of America, etc.

Susan N. Weber, David B. Anderson, David A. Sand-

ino, Daniel J. O'Hanlon, and Beveridge & Diamond, for

Real Party in Interest and Respondent, Department of

Water Resources.

Thomas W. Birmingham, William T. Chisum, and

Kronick, Moskovitz, Tiedemann & Girard, for Intervener

and Respondent, Westlands Water District.

Eric Garner, Best, Best & Krieger, and James Roberts,

for Intervener and Respondent, Metropolitan Water Dis-

trict.

Diane V. Rathmann, and Linneman, Burgess, Telles,

Van Atta & Vierra, for Interveners and Respondents, San

Luis Water District and Panoche Water District.

Kevin Haroff and Morrison & Foerster, for Intervener

and Respondent, Santa Clara Water District.

In this dispute, established water users challenge

restrictions imposed under new federal standards for

water quality and wildlife protection. The trial court

found the United States Bureau of Reclamation was an

App. 4

indispensable party and dismissed the action after the

Bureau refused to waive its sovereign immunity. The

plaintiffs appeal on equitable grounds; we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The United States Bureau of Reclamation (Bureau)

operates the Central Valley Project, the country’s largest

water reclamation project. “The Sacramento Valley, con-

taining the Sacramento River, lies in the northern portion

of the Central Valley, and the San Joaquin Valley, contain-

ing the San Joaquin River, lies in the southern portion.

The Sacramento River has a surplus of water because of

heavier rainfall in the northern region. . . . The San

Joaquin River, in contrast, does not supply sufficient

water for the extensive amount of tillable soil in its valley.

The [Central Valley Project] transports some of the Sacra-

mento River’s surplus water to the San Joaquin Valley

and permits the waters of the San Joaquin River to be

diverted for irrigation and other purposes to new areas

where water is scarce.” (South Delta Water Agency v.

Department of Interior (9th Cir. 1985) 767 F.2d 531, 534.)

The Bureau operates the Central Valley Project under

water rights permits from the California State Water

Resources Control Board.

California’s Department of Water Resources operates

the State Water Project. The principal facilities of this

project include the Oroville Dam, the Delta Pumping

Plant, and the California Aqueduct. (Wat. Code, §§ 12930

et seq.) The State Water Project also releases previously

stored water to the Delta and rediverts it. The Depart-

ment of Water Resources, like the Bureau, operates this

App. 5

project under permits from the State Water Resources

Control Board.

This action concerns the allocation of water

impounded by the Bureau at the New Melones Dam on

the Stanislaus River, which is part of the Central Valley

Project. (See California v. United States (1978) 438 U.S. 645,

651 [57 L.Ed.2d 1018, 1024].) The Bureau uses this water

to provide fish and wildlife restoration flows on the San

Joaquin River, and control water quality standards.

On June 8, 1995, the State Water Resources Control

Board adopted Water Rights Order 95-6 (WR 95-6), which

approved changes in the water rights permits for both the

State Water Project and the Central Valley Project.! On

July 7, 1995, the County of San Joaquin, Stockton East

Water District, Central San Joaquin Water Conservation

District, Central Delta Water Agency, South Delta Water

Agency, Reclamation District No. 2072, R.C. Farms, Inc.,

and Alexander Hildebrand (collectively, “appellants”),

filed a petition for writ of mandate, contending the use of

New Melones water for fish and wildlife restoration and

water quality violates California water laws and denies

the appellants their priority rights. Some appellants hold

' These changes modified the water quality standards for

striped bass spawning, the Suisun Marsh, export rates, and

operations of the Delta Cross Channel facilities. The changes

also permit the Bureau and the Department of Water Resources

to use each other’s pumping facilities when one has reached its

export limitation in order to improve fish protection. WR 95-6

also modified requirements for operating the New Melones

Reservoir with respect to the salinity water quality standard for

Vernalis, which is the point at which the San Joaquin River

enters the Delta.

App. 6

water supply contracts with the Bureau for New Melones

water; other appellants otherwise claim riparian rights on

the San Joaquin River or the Sacramento-San Joaquin

River Delta. The petition for writ of mandate contained

14 causes of action, all of which challenged WR 95-6 and

sought to modify the Bureau’s Central Valley Project

operations? The petition asserted violations of the Cali-

fornia Environmental Quality Act and the California

Water Code.

Appellants’ petition named as respondents the State

Water Resources Control Board and the five individual

Board members, and named, as real parties in interest,

the United States through the Bureau and the State of

California through the Resources Agency and the Depart-

ment of Water Resources. Subsequently, the Kern County

Water Agency, the Metropolitan Water District of South-

ern California, Santa Clara Valley Water District, West-

lands Water District, and the State Water Contractors

intervened as respondents.

The State Water Resources Control Board moved for

judgment on the pleadings arguing the Bureau was an

indispensable party, which required dismissal of the

action. At the hearing on this motion, the Bureau spe-

cially appeared and elected not to waive its sovereign

2 Appellants sought (1) to “set aside, vacate, and rescind”

WR 95-6; (2) priority of their interests to water stored in and

delivered from the Central Valley Project’s New Melones

Reservoir over others’ interests in the water; (3) to limit the

export of Central Valley Project water; and (4) to impose

additional environmental mitigation requirements on the

Central Valley Project.

App. 7

immunity. In a detailed ruling, the trial court found the

Bureau was an indispensable party and thus dismissed

the action without prejudice.

DISCUSSION

The sole issue presented in this appeal is whether the

trial court erred in finding the Bureau was an indispens-

able party, thereby necessitating dismissal of this action.

Contrary to appellants’ assertion, we review the trial

court’s determination pursuant to Code of Civil Pro-

cedure section 389, subdivision (b), for an abuse of discre-

tion, and find no basis for reversal.3

Section 389 provides: “(a) A person who is subject to

service of process and whose joinder will not deprive the

court of jurisdiction over the subject matter of the action

shall be joined as a party in the action if (1) in his absence

complete relief cannot be accorded among those already

parties or (2) he claims an interest relating to the subject

of the action and is so situated that the disposition of the

action in his absence may (i) as a practical matter impair

or impede his ability to protect that interest or (ii) leave

any of the persons already parties subject to a substantial

risk of incurring double, multiple, or otherwise inconsis-

tent obligations by reason of his claimed interest. If he

has not been so joined, the court shall order that he be

made a party. [{] (b) If a person as described in para-

graph (1) or (2) of subdivision (a) cannot be made a party,

the court shall determine whether in equity and good

° All further undesignated statutory references are to the

Code of Civil Procedure.

App. 8

conscience the action should proceed among the parties

before it, or should be dismissed without prejudice, the

absent person being thus regarded as indispensable. The

factors to be considered by the court include: (1) to what

extent a judgment rendered in the person’s absence might

be prejudicial to him or those already parties; (2) the

extent to which, by protective provisions in the judgment,

by the shaping of relief, or other measures, the prejudice

can be lessened or avoided; (3) whether a judgment ren-

dered in the person’s absence will be adequate; (4)

whether the plaintiff or cross-complainant will have an

adequate remedy if the action is dismissed for non-

joinder.”

Section 389 first sets out, in subdivision (a), a defini-

tion of persons who ought to be joined if possible (some-

times referred to as “necessary” parties). Then,

subdivision (b) sets forth the factors to follow if such a

person cannot be made a party in order to determine

“whether in equity and good conscience the action

should proceed among the parties before it, or should be

dismissed without prejudice, the absent person being

thus regarded as indispensable.” (Italics added.) The sub-

division (b) factors “are not arranged in a hierarchical

order, and no factor is determinative or necessarily more

important than another.” (See 4 J. Moore, Moore’s Federal

Practice J19.05[1][a] (3d ed. 1997).)

Here, no one disputes the United States is a party

which should be joined if possible under section 389.

subdivision (a). Therefore, the case turns on whether the

trial court properly applied the factors set forth in section

389, subdivision (b). The trial court expressly found all

App. 9

four factors indicated this action should not proceed with-

out the United States. As the trial court's ruling noted: “It

is clear that the Bureau, named as a Real Party in Interest,

falls within the purview of paragraph (2) of section

389(a). It is also clear that the Bureau is not amenable to

this Court’s jurisdiction and has refused to waive its

sovereign immunity. This Court must therefore apply the

four factors listed in subdivision (b) of section 389 to

determine whether, in equity and good conscience, the

action should proceed without the Bureau. [J] The four

factors listed in section 389(b) were briefed and argued at

length by the parties. The Court finds as follows: []] 1.

Petitioners’ requested relief would substantially prejudice

the Bureau’s rights. The water rights order which peti-

tioners seek to vacate (WR 95-6) modifies the Bureau’s

existing water right permits for the Central Valley Project

(“CVP”). To set aside that order would strip the Bureau of

many of its current permit rights and impede the

Bureau’s CVP operations; [{] 2. The Court concurs with

respondents that Sierra Club, Inc. v. California Coastal Com-

mission [citation] is controlling [because “set[ting] aside,

vacat[ing], and rescind[ing]” the Bureau’s permit “would

directly affect, and undoubtedly injure,” the Bureau's

interests]; [{¥] 3. The Court cannot grant petitioners’

prayer and then tailor it in such a fashion to protect

against prejudice to the Bureau. Contrary to petitioners’

claim, the impact upon the Bureau would not be ‘minor’

and would, in fact, seriously disrupt its operations; [{] 4.

A judgment rendered in the Bureau’s absence would not

be adequate. Three of the petitioners have filed suit

against the Bureau in federal court. That action involves

App. 10

some of the same issues raised in the instant case. Given

the overlapping issues in the two courts, a judgment in

this case, without the Bureau’s presence, could result in

contradictory legal obligations and generate further liti-

gation among the parties and/or real parties in interest;

[{] 5. Petitioners have an adequate remedy in the pend-

ing federal action. While not all issues will be addressed,

the Court concurs with respondents’ analysis in terms of

the focus of the relief requested by petitioners. In that

vein, the federal action can remedy the alleged miscon-

duct; and [{] 6. Given the nature of the rights and respon-

sibilities involved, the Bureau’s interests cannot be

adequately represented by the State of California. The

Bureau and the State have different water rights, own and

operate different project facilities, and are governed by

different laws and regulations. Moreover, WR 95-6 mod-

ifies the water right permits of the Bureau and State in

different respects. Consequently, each entity is affected

differently by that order. . . . [The court therefore] rule[s]

that the United States Bureau of Reclamation is an indis-

pensable party to this litigation under Code of Civil

Procedure section 389 which cannot be joined in this

action because of the sovereign immunity of the United

States. . . . This action shall be, and hereby is, dismissed

without prejudice... . ”

Since the trial court reviewed the propriety of the

United States’ participation in this action pursuant to the

factors and considerations set forth in section 389, appel-

lants attempt a “second bite at the apple” by claiming the

law is “well-settled” we must review this determination

de novo, citing Save Our Bay, Inc. v. San Diego Unified Port

App. 11

Dist. (1996) 42 Cal.App.4th 686.4 Save Our Bry indeed

subjects such a determination to de novo review, which

we find contrary to the available authority.

We first note the language of subdivision (b), section

389, refers to a determination “in equity and good con-

science.” “[T]he decision whether to proceed with the

action in the absence of a particular party is one within the

court's discretion, as governed by the various factors enu-

merated in subdivision (b) of section 389, Code of Civil

Procedure.” (Sierra Club, Inc. v. California Coastal Com.

(1979) 95 Cal.App.3d 495, 500, italics added; see also

Serrano v. Priest (1976) 18 Cal.3d 728, 753 (“in dealing

with the doctrine of indispensable . . . parties we should

... be careful to avoid converting a discretionary power or

a rule of fairness in procedure into an arbitrary and

burdensome requirement which may thwart rather than

accomplish justice” ], italics added, citations, internal quo-

tation marks, and fn. omitted; Kraus v. Willow Park Public

Golf Course (1977) 73 Cal.App.3d 354, 368 [“[i]t is for

discretionary and equitable reasons, not for any want of

jurisdiction, that the court may decline to proceed with-

out the absent party”], italics added.) It makes no sense

to grant the trial court an expressly discretionary power

to balance the equities, then reject the court’s evaluation

out of hand and balance the equities anew.

* Appellants also cite Cox v. County of San Diego (1991) 233

Cal.App.3d 300, 306, probably because this was the authority

cited by Save Our Bay. (Save Our Bay, Inc. v. San Diego Unified

Port District, supra, 42 Cal.App.4th at p. 692.) However, Cox did

not address section 389 or indispensable parties; Cox involved a

grant of summary judgment.

App. 12

We additionally note the California Legislature

amended section 389 in 1971 to conform to rule 19 of the

Federal Rules of Civil Procedure. (Law Revision Com.

comment, Code Civ. Proc., § 389 [“[s]ection 389 is revised

to substitute practically in its entirety Rule 19 of the

Federal Rules of Civil Procedure for former Section 389.

The words ‘without prejudice’ have been added to the

language of the Federal Rule in subdivision (b) of Section

389 merely to avoid any contrary implication that might

be created by the omission of the somewhat similar provi-

sion formerly found in Section 389. . . . Accordingly, the

explanatory note prepared by the Advisory Committee in

conjunction with the amendment of Rule 19 in 1966 is

particularly helpful in describing the nature and effect of

Section 389”]; see also Serrano v. Priest, supra, 18 Cal.3d at

p- 753, fn. 27 [section 389 was “enacted in 1971 to con-

form ours to the federal practice. .. . ”].

Due to the amendment of section 389 to conform to

Federal Rule 19, the California courts have noted the

propriety of using federal precedents “as a guide to

application of the statute.” (See Kraus v. Willow Park Pub-

lic Golf Course, supra, 73 Cal.App.3d at p. 368, fn. 9,

citation and internal quotations omitted; Conrad v. Unem-

ployment Ins. Appeals Bd. (1975) 47 Cal.App.3d 237, 241.)

In the federal courts, “[a] district court’s determination of

indispensability under [Federal Rule of Civil Procedure]

19(b) is reviewed for an abuse of discretion.”5 (Thunder

> The instant case implicates the standard of review only as

to subdivision (b) of section 389, and by analogy, Rule 19(b) of

the Federal Rules of Civil Procedure. This case does not raise,

and we do not address, the appropriate standard of review for

App. 13

Basin Coal Co. v. Southwestern Public Service Co. (10th Cir.

1997) 104 F.3d 1205, 1210; see also Burka v. Aetna Life Ins.

Co. (D.C. Cir. 1996) 87 F.3d 478, 483; Sindia Expedition, Inc.

v. Wrecked and Abandoned Vessel Known as the Sindia (3d

Cir. 1990) 895 F.2d 116, 121; Walsh v. Centeio (9th Cir. 1982)

692 F.2d 1239, 1242.)

The determinations under subdivision (b) “must be

based on fact-specific considerations. [Citation.] These

determinations are anything but pure legal conclu-

sions. . . . [T]hey involve the balancing of competing

interests and must be steeped in ‘pragmatic consider-

ations.” ” (Travelers Indemn. Co. v. Dingwell, supra, 884 F.2d

at p. 635.) The latitude inherent in subdivision (b) renders

the determination “more in the arena of a factual deter-

mination than a legal one.” (Envirotech Corp. v. Bethlehem

Steel Corp. (2d Cir. 1984) 729 F.2d 70, 75.) “The rule calls

for a pragmatic decision based on practical consider-

ations in the context of a particular litigation. . . . [T]he

district court has substantial discretion in considering

which factors to weigh and how heavily to emphasize

certain considerations in deciding whether the action

should go forward.” (Kickapoo Tribe of Indians v. Babbitt

determinations under subdivision (a) of section 389. (See

Travelers Indemn. Co. v. Dingwell (1st Cir. 1989) 884 F.2d 629, 635

[some courts have questioned whether Rule 19(a)

determinations are reviewed de novo, but “[n]o Circuit has

explicitly decided to review Rule 19(b) determinations under a

de novo standard of review”].) Since the Dingwell decision, it

appears only the Sixth Circuit, which Dingwell characterized as

indicating “no preference” as to the appropriate standard of

review, has explicitly subjected Rule 19(b) determinations to a

de novo standard. (See Keweenaw Bay Indian Community v.

Michigan (6th Cir. 1993) 11 F.3d 1341, 1346.)

App. 14

(D.C. Cir. 1995) 43 F.3d 1491, 1495, internal quotation

marks omitted.) The trial judge, who is “closer to the

arena,” is usually better situated than an appellate panel

“to survey the practicalities involved in the litigation.”

(Walsh v. Centeno, supra, 692 F.2d at p. 1242.) “ ‘The [dis-

trict] court’s trial management “should not be impeded

by second guessing at the appellate level except in those

rare instances when a clear abuse of discretion is firmly

shown.” ’ ” (Interspiro USA, Inc. v. Figgie Intern., Inc. (Fed.

Cir. 1994) 18 F.3d 927, 932, citations omitted.)

Accordingly, we review the trial court’s determina-

tion for an abuse of discretion, and find none. Appellants,

at least implicitly, acknowledge the trial court evaluated

the section 389, subdivision (b), factors. However, appel-

lants attempt to “retry” their case on appeal, asking us to

reweigh subdivision (b)’s discretionary factors in order to

yield a different result. In essence, appellants’ brief

explains how the discretionary factors could be balanced

to permit their lawsuit to proceed, but have not demon-

strated why these factors must be balanced in this fash-

ion. Appellants have not shown why the trial court, by

balancing the requisite factors and reaching a different

result, i.e. concluding the action should not proceed,

thereby abused its discretion.

By their own characterization, appellants deem as

“the most important fact” the potential denial of a rem-

edy. However, in reading appellants’ arguments closely,

appellants do not claim they are otherwise “without a

remedy,” but merely fear they could be without a remedy

should challenges to the federal proceedings prevail. Cit-

ing Vanoni v. County of Sonoma (1974) 40 Cal.App.3d 743,

appellants attempt to recast the case law to render the

Tera

a.»

eee ee ae ee eee

App. 15

remedy factor dispositive, stating the “inadequacy of a

remedy in state court alone is sufficient justification for a

court to hold that in ‘equity and good conscience’ the

action should proceed without the United States.”®

(Italics in original.) However, appellants fail to note a

trial court’s determination whether in “equity and good

conscience” an action should proceed or should be dis-

missed is based on the particular facts posed in a particu-

lar case after evaluating all of the subdivision (b) factors.

Depending on the particular case, a trial court might well

decide although three factors favor dismissing the action,

the strength of a fourth factor indicates the action should

proceed - or vice versa. This, however, is not such a case.

Section 389, subdivision (b), leaves the judge “with

substantial discretion in considering which factors to

weigh and how heavily to emphasize certain consider-

ations in deciding whether the action should go forward

in the absence of someone needed for a complete adjudi-

cation of the dispute.” (See 7 C. Wright, A. Miller & M.

Kane, Federal Practice and Procedure (2d ed. 1986)

§ 1604, p. 66.) Under appellants’ interpretation, the

unavailability (or in appellants’ instance, the possible

unavailability) of an alternative forum would always be

Vanoni’s analysis, in its entirety, reads as follows: “[A]ppellants

here would be left with no remedy in the state courts if their

action were dismissed for nonjoinder of the United States.

Because section 389 of the Code of Civil Procedure directs that

one factor to be considered by the court is whether the plaintiff

will have an adequate remedy if the action is dismissed for

nonjoinder, ‘equity and good conscience’ suggest that the action

should proceed.” (Id. at p. 747.)

App. 16

determinative, outweighing the other three statutory con-

siderations. This is not the law. (See Quileute Indian Tribe

v. Babbitt (9th Cir. 1994) 18 F.3d 1456, 1460 [“although

there exists no alternative forum... ., that factor alone

does not outweigh the other three factors”] ; Shermoen v.

United States (9th Cir. 1992) 982 F.2d 1312, 1319 [accord];

Confederated Tribes of Chehalis Indian Reservation v. Lujan

(9th Cir. 1991) 928 F.2d 1496, 1500 [“lack of an alternative

forum does not automatically prevent dismissal of a

suit” ].)

The availability of an “adequate remedy” is one, but

only one, factor which the trial court evaluates in making

its determination. Each case turns on its facts. To deem

the unavailability of an alternative forum a conclusive

factor in ail cases and circumstances would, in effect,

rewrite the statute, because the statute directs the court to

consider all four factors in making this determination.

(Cf. Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 249-250

[70 L.Ed.2d 419] [discussing the factors considered for

forum non conveniens and concluding, “[w]e [will] not

lay down a rigid rule to govern discretion. . . . If central

emphasis were placed on any one factor, the . . . doctrine

would lose much of the very flexibility that makes it so

valuable”] .)

Moreover, in this case, we are not convinced appel-

lants lack an alternative forum.” The trial court found:

7 Appellants complain they may lack an alternative forum

because they cannot bring precisely the same claims in the

federal court. This is not the standard. As the trial court’s ruling

acknowledges, appellants cannot bring all of the same claims in

the federal case. However, the standard is whether appellants

App. 17

“Three of the petitioners have filed suit against the

Bureau in federal court. That action involves some of the

same issues raised in the instant case. . . . Petitioners have

an adequate remedy in the pending federal action. While

not all issues will be addressed, the Court concurs with

respondents’ analysis in terms of the focus of the relief

requested by petitioners. In that vein, the federal action

can remedy the alleged misconduct.”

The record contains the complaint filed in the federal

action. This complaint alleges the Bureau “reallocate[d]

200,000 acre feet from the New Melones Unit, directly

taking the water from users on the Stanislaus River in

favor of uses and purposes in the California Central

Valley,” “did not require any releases or bypass flows

from other CVP projects capable of releasing water to the

San Joaquin River and continued to export water for uses

in the Central Valley during the period of reallocation

from the New Melones Project. [The Bureau] ignored and

failed and refused to consider allocating water from other

CVP projects capable of releasing water to reach the San

Joaquin River and the Sacramento/San Joaquin Bay-Delta

Estuary.” The complaint also alleges the Bureau “real-

located] . . . approximately 127,000 acre-feet from the

New Melones Unit for the purpose of benefitting fish and

wildlife and for the use of this water outside of the place

of use provided for in the permits issued for the New

have an “adequate remedy,” not whether all issues are identical.

As discussed herein, the federal case challenges the Bureau’s

Central Valley Project operations and seeks to change the

Bureau’s operations of New Melones and the Central Valley

Project to make more water available to appellants, which is the

same general type of relief sought in the instant case.

App. 18

Melones Unit. ...” Among the fourteen remedies sought

in the prayer for relief are temporary, preliminary, and

permanent injunctions prohibiting the BUREAU from

depriving [plaintiffs] of their vested rights to a supply of

water and “prohibiting . . . the BUREAU from reallocating

water from the New Melones Project under the CVPIA to

any purpose of use or place of use outside of the purpose

or place authorized by the permits issued by the California

State Water Resources Control Board and to prohibit [the

Bureau] from storing or refusing to release water [for any

use] not authorized by the current purpose of use or

outside the place of use authorized by said permits. ... ”

(Italics added.)

There is sufficient similarity in the general types of

relief sought in the federal and state actions to support

the trial court’s conclusion appellants must have an ade-

quate remedy in the pending federal action.®

;

8 Referring to matters outside the record, appellants argue

they lack an adequate remedy in the federal court action

because the State subsequently asserted Eleventh Amendment

immunity against new complaints filed by appellants both in

that federal court action and in a new federal court lawsuit.

Appellants filed these new complaints after the trial court

dismissed the instant action. The trial judge is not

Nostradamus, nor is the trial judge expected to monitor the

various federal court actions and reevaluate indispensable |

party determinations to guarantee appellants a perfect

alternative forum. The trial court evaluates the four factors as

they exist at a particular point; there are no ironclad assurances,

nor could there be. An alternative forum could fail to provide a

remedy for any number of substantive or procedural reasons.

This is not to say the lack of an “adequate remedy” in federal

court is insignificant; indeed in some instances the state trial

court may conclude the lack of an alternative forum outweighs

App. 19

In appellants’ two remaining arguments, they again

attempt to “retry” their case: Appellants contend the

Bureau need not be joined because “an adverse judgment

will not prejudice the United States,” the other defen-

dants can “ably argue in the interests of the [Bureau],

because the affect [sic] of the relief would be the same on

both parties,”1° and “relief may be shaped to avoid any

the other three factors set forth in section 389, subdivision (b).

However, as explained above, the trial court’s determination

pursuant to section 389, subdivision (b), involves the balancing

of competing considerations at a particular point in time. No

one factor is conclusive under all circumstances, and the

determination is not revisited in light of subsequent events.

9 As part of this argument, appellants contend: “The trial

court incorrectly concluded that should the Appellants[ ]

receive the requested relief, vacating WR 95-6, it would result in

stripping the Bureau of many of its current permit rights and

impede the Bureau[’s] CVP operation.” Appellants characterize

the trial court’s error as failing to recognize “[w]ithout the

modifications to the permit, the operations of the CVP and SWP

would continue, unchanged.” If appellants lost, thereby leaving

WR 95-6 intact, the Bureau’s operations would continue

unchanged. However, if appellants prevailed, thereby

rescinding WR 95-6, the Bureau would lose certain rights under

the permits. We cannot deem the loss of current rights as

nonprejudicial simply because the Bureau would not lose all

water rights but would instead revert back to the rights it held

previously.

10 Appellants point to various similarities regarding the

application of particular provisions in WR 95-6 to the Bureau

and the State, and similarities in export pumping restrictions.

Appellants also note: “While the parties operate separately

owned facilities, they also jointly own facilities which are

operated according to a formal written coordinated operating

agreement.” However, the trial court expressly found: “The

Bureau and the State have different water rights, own and

App. 20

prejudice caused to the United States.”!! The trial court

conscientiously examined these factors, and reached

exactly the opposite conclusions. Appellants’ argumenta-

tive contentions are simply inadequate bases for reversal

of the trial court’s reasoned balancing of the discretionary

factors. 1

operate different project facilities, and are governed by different

laws and regulations. Moreover, WR 95-6 modifies the water

right permits of the Bureau and State in different respects.

Consequently, each entity is affected differently by that order.”

The trial court clearly found the differences outweighed the

similarities, and we defer to this finding.

11 In this argument, appellants contend the Bureau “will be

able to protect its ‘direct’ interest in the permits in any

subsequent hearing on the Petition for Change.” This has no

bearing on the ability of the Bureau to protect its interests in the

instant litigation. If appellants were to prevail, the Bureau

would suffer a restriction on now-existing rights. The fact it

might regain those rights after subsequent hearings is not a

manner in which the trial court can tailor relief, i.e. upholding

or rescinding WR 95-6. Appellants sought relief directly against the

Bureau. The petition prayed for preliminary and permanent

injunctions “restraining . . . Real Parties in Interest.” By seeking

to invalidate WR 95-6, appellants sought to take away changes

to the Bureau’s water rights permits, which directly affect the

operations of the Central Valley Project. Appellants’ assertions

an adverse judgment would not prejudice the Bureau are

preposterous.

12 Two additional arguments posed in appellants’ opening

brief require brief mention. Appellants assert the Bureau “holds

only legal title to the water” and “has no substantial interest in

the water,” emphasizing the Bureau “uses no water.” The

argument is highly misleading: the fact the Bureau does not

consume water is not synonymous with having no substantial

interest in the water. The Bureau has appropriative water rights

in the Central Valley Project. (United States v. State Water

Resources Control Bd. (1986) 182 Cal.App.3d 82, 106.) The Bureau

a ae a ee Ore eee ee CE eee ee,

App. 21

DISPOSITION

The judgment is affirmed. Respondents shall recover

their costs on appeal. (CERTIFIED FOR PUBLICATION.)

NICHOLSON, J.

We concur:

SPARKS, Acting P.J.

MORRISON, J.

owns the CVP facilities, has operational control and

responsibilities relating to flood control, water supply, power

generation, and fish and wildlife mitigation. The Bureau has

substantial property rights in its water rights permits, whereby

the Bureau diverts, transports, and stores water. The Bureau

clearly has a substantial interest in this litigation.

Appellants also essentially seek to create a new,

determinative, factor. They argue: “In instances where the

[indispensable party] rule has been applied [to dismiss an

action], plaintiffs have typically failed to provide an acceptable

excuse for slow and negligent conduct in naming the defendants or

real parties in interest. Here, in contrast, the Appellants timely

named the United States. ...” (Italics added.) The only case

cited for this proposition is Sierra Club, Inc. v. California Coastal

Com., supra, 95 Cal.App.3d 495. Sierra Club did not employ

timeliness as an additional factor. Rather, timeliness was an

issue in Sierra Club because the plaintiff failed to join a

particular individual before the statute of limitations ran, and

thus the individual “could not be made a party” to the action.

(Id. at p. 502: sce § 389, subd. (b) [“[i]f a person as described in

paragraph (1) or (2) of subdivision (a) cannot be made a party,

the court shall determine whether in equity and good

conscience. ... ”].)

App. 22

APPENDIX 3

COUNTY OF SAN JOAQUIN, No. 95 CS 01642

STOCKTON EAST WATER

DISTRICT, CENTRAL SAN Pi ni tn

JOAQUIN WATER

CONSERVATION DISTRICT,

CENTRAL DELTA WATER

AGENCY, SOUTH DELTA WATER

AGENCY, RECLAMATION

DISTRICT NO. 2072, R.C. FARMS,

INC. and ALEXANDER

HILDEBRAND,

Petitioners,

vs.

STATE WATER RESOURCES

CONTROL BOARD; JOHN P.

CAFFREY; MARC DEL PIERO;

JAMES M. STUBCHAER; MARY

JANE FORSTER; JOHN W.

BROWN; AND DOES 1 through

10, inclusive,

Respondents.

UNITED STATES OF AMERICA,

acting by and through the

DEPARTMENT OF THE

INTERIOR, BUREAU OF

RECLAMATION; STATE OF

CALIFORNIA, acting by and

through the RESOURCES

AGENCY, DEPARTMENT OF

WATER RESOURCES; and DOES

11 THROUGH 300.

Real Parties In Interest.

App. 23

This matter came on regularly for hearing on Respon-

dents’ Motion for Judgment on the pleadings on January

26, 1996, in Department 7 of the Sacramento Superior

Court, the Honorable Thomas M. Cecil presiding. Follow-

ing arguments from counsel, the Court deemed the mat-

ter submitted.

The underlying issues pending before this Court are

significant. Respondents’ present motion, however, only

concerns whether the United States Bureau of Reclama-

tion (“Bureau”) is an indispensable party to this litigation

under Code of Civil Procedure section 389, thereby neces-

sitating dismissal of the action.

It is clear that the Bureau, named as a Real Party in

Interest, falls within the purview of paragraph (2) of

section 389(a). It is also clear that the bureau is not

amenable to this Court’s jurisdiction and has refused to

waive its sovereign immunity. This Court must therefore

apply the four factors listed in subdivision (b) of section

389 to determine whether, in equity and good conscience,

the action should proceed without the Bureau.

The four factors listed in section 389(b) were briefed

and argued at length by the parties. The Court finds as

follows:

1. Petitioners’ requested relief would substantially

prejudice the Bureau’s rights. The water rights order

which petitioners seek to vacate (WR 95-6) modifies the

Bureau's existing water right permits for the Central Val-

ley project (“CVP”). To set aside that order would strip

the Bureau of many of its current permit rights and

impede the Bureau’s CVP operations;

App. 24

2. The Court concurs with respondents that Sierra

Club, Inc. v. California Coastal Commission (1979) 95

Cal.App.3d 495 is controlling;

3. The Court cannot grant petitioners’ prayer and

then tailor it in such a fashion to protect against prejudice

to the Bureau. Contrary to petitioners’ claim, the impact

upon the Bureau would not be “minor” and would, in

fact, seriously disrupt its operations;

4. A judgment rendered in the Bureau’s absence

would not be adequate. Three of the petitioners have

filed suit against the bureau in federal court. That action

involves some of the same issues raised in the instant

case. Given the overlapping issues in the two courts, a

judgment in this case, without the Bureau’s presence,

could result in contradictory legal obligations and gener-

ate further litigation among the parties and/or real par-

ties in interest;

5. Petitioners have an adequate remedy in the pend-

ing federal action. While not all issues will be addressed,

the Court concurs with respondents’ analysis in terms of

the focus of the relief requested by petitioners. In that

vein, the federal action can remedy the alleged miscon-

duct; and

6. Given the nature of the rights and responsibilities

involved, the Bureau’s interests cannot be adequately

represented by the State of California. The Bureau and

the State have different water rights, own and operate

different project facilities, and are governed by different

laws and regulations. Moreover, WR 95-6 modifies the

water right permits of the Bureau and State in different

GAS AE OT SE ae ape RSE RE SEN RE

5 oS? et Ce HY

App. 25

respects. Consequently, each entity is affected differently

by that order.

Accordingly, even after engaging in a balancing of

interests as urged by petitioners, the Motion for Judg-

ment on the Pleadings is granted. The matter is dismissed

without prejudice. Respondents are directed to prepare

an appropriate order, submit it to opposing counsel for

approval as to form, and file it with this Court.

Counsel for Petitioners are hereby notified that upon

the passage of 60 (sixty) days from the signing of this

order, the 18 (eighteen) cartons of administrative records

lodged with this Court on January 12, 1996, now in the

Court’s possession, be retrieved by counsel or they will

be destroyed by the Court.

/s/ Thomas M. Cecil

JUDGE OF THE

SUPERIOR COURT

Thomas M. Cecil

[seal]

CLIFFORD T. LEE, DEPUTY ATTORNEY GENERAL, 50

Fremont Street, Suite 300, San Francisco, CA 94105-2239

LINUS MASOUREDIS, DEPUTY ATTORNEY GENERAL,

2101 Webster Street, 12th Floor, Oakland, CA 94612-3049

THOMAS W. BIRMINGHAM, 400 Capitol Mall, 27th

Floor, Sacramento, CA 95814-4417

DAVID A. SANDINO, 1416 Ninth Street, Room 1118,

Sacramento, CA 95814

BARBARA LEIDIGH, STATE WATER RESOURCES CON-

TROL BOARD, 901 “P” STREET, Sacramento, CA

95812-0100

App. 26

MARIA A. ITIZUKA, U.S. DEPARTMENT OF JUSTICE,

ENVIRONMENT AND NATURAL RESOURCES DIVI-

SION, 650 Capitol Mall, Sacramento, CA 95814

GREGORY K. WILKINSON, 3750 University Ave, River-

side, CA 92502

OLIVE LEE THALER, MORRISON & FOERSTER, 345

California Street, San Francisco, CA 94104-2675

DANTE JOHN NOMELLINI, ESQ., 235 East Weber Ave-

nue, Stockton, CA 95201

JOHN HERRICK, ESQ., 2509 West March Lane, Suite 200,

Stockton, CA 95267

REID ROBERTS, ESQ., 311 East Main Street, Suite 202,

Stockton, CA 95202

THOMAS M. ZUCKERMAN, ESQ., 146-148 West Weber

Avenue, Stockton, CA 95202

JAMES F. ROBERTS, ESQ., METROPOLITAN WATER

DISTRICT OF SOUTHERN CALIFORNIA, 1111 Sunset

Blvd., Los Angeles, CA 90054-0153

KARNA E. HARRIGFELD, ESQ., JEANNE M. ZOLEZZI,

ESQ., 509 West Weber Avenue, Stockton, CA 95201-3020

ee ee Se ee ee en ae

App. 27

APPENDIX 4

STATE OF CALIFORNIA

STATE WATER RESOURCES CONTROL BOARD

In the Matter of Petition for

Changes in the Water Rights

Authorizing Diversion and

Use of Waters in the Watershed

of the Sacramento-San Joaquin

Delta, held by

CALIFORNIA DEPARTMENT

OF WATER RESOURCES and

UNITED STATES BUREAU

OF RECLAMATION

ORDER: WR 95-14

ORDER DENYING PETITIONS FOR

RECONSIDERATION OF ORDER WR 95-6,

WHICH APPROVED CHANGES IN THE WATER

RIGHTS OF THE CALIFORNIA DEPARTMENT

OF WATER RESOURCES AND THE UNITED STATES

BUREAU OF RECLAMATION AFFECTING

THE BAY-DELTA ESTUARY

1.0

2.0

3.0

4.0

5.0

App. 28

TABLE OF CONTENTS

PAGE

WORM OEE <cdocvahscbavivekentscnndbietel 1

GROUNDS FOR RECONSIDERATION........... 2

2h. RO EG GORD a kno s kedneccuktensdstentes 2

2.2 San Joaquin’s Grounds ..................... 3

SD. Tere! CH « os oon cc ctinkect sacks cae 3

DAL PRIOR 0 0:0 00 Kedikiabsnthig cb dseiecienck 3

ISSUE RAISED BY AREA FE ... ccc sccccccsccces 4

ISSUES RAISED BY SAN JOAQUIN............. 6

Sk CHR COGN 5 oc cr ci ce rivclipusceccceurs 6

5.1.1 The Statutory Basis for Using the ER as

an Environmental Document........... 6

5.1.2 The ER Meets All of the Requirements

for Use as a Programmatic Document .... 9

aa Water Cote Camtianets 6.60 2k ise sdeins 11

Dok GO ov nib nccnstscencet aeeenuas 12

5.2.2 Allegations that the USBR’s Permits

OE FD heres cease ‘sdsheuneaneent 13

5.2.3 Alleged Violation of San Joaquin River

TORII 6.0.5.0 vcicdsiisecssguasieess 16

5.2.4 Alleged Violation of Watershed of

Origin and County of Origin Acts ..... 16

5.2.5 Alleged Violation of Delta Protection

PED cae cctcnseyanses senkkdiansaun 18

5.2.6 Allegation Regarding Water Code

Sn Per ee 18

App. 29

5.3 Allegations of Injury to Legal Users of

OE Oe ee 19

5.3.1 Change in Points of Diversion ......... 19

5.3.2 Change in Export Rate Limits.......... 21

5.3.3 General Allegations of Harm........... 25

5.3.4 Changes for Striped Bass, Suisun Marsh,

Delta Cross Channel Operations, and

Southern Delta Agriculture ............ 25

5.4 Allegations of Conflicts of Interest ......... 27

5.5 Allegations of Vagueness................... 30

6.0 ISSUE RAISED BY PORGANS................... 31

SE ie a 32

EE 34

See nt a 34

STATE OF CALIFORNIA

STATE WATER RESOURCES CONTROL BOARD

In the Matter of Petition for

Changes in the Water Rights

Authorizing Diversion and

Use of Waters in the Watershed

of the Sacramento-San Joaquin

Delta, held by

)

CALIFORNIA DEPARTMENT

)

ORDER: WR 95-

OF WATER RESOURCES and

UNITED STATES BUREAU

OF RECLAMATION

App. 30

ORDER DENYING PETITIONS FOR

RECONSIDERATION OF ORDER WR 95-6,

WHICH APPROVED CHANGES IN THE WATER

RIGHTS OF THE CALIFORNIA DEPARTMENT

OF WATER RESOURCES AND THE UNITED STATES

BUREAU OF RECLAMATION AFFECTING

THE BAY-DELTA ESTUARY

BY THE BOARD:

1.0 INTRODUCTION

On June 8, 1995 the State Water Resources Control Board

(SWRCB) adopted Order WR 95-6. Order WR 95-6

approved, in part, a petition for changes filed by the

California Department of Water Resources (DWR) and the

United States Bureau of Reclamation (USBR). The

approved changes include changes in the standards to be

met by the DWR and the USBR for striped bass spawning

salinities, Suisun Marsh salinities, export rates in the

southern Delta, and operation of the Delta Cross Channel

Gate; a change in the salinity to be maintained by the

USBR at Vernalis on the San Joaquin River; and a limited

authorization for the USBR and the DWR to use each

other’s water diversion points in the southern Delta. In

the absence of a further order of the SWRCB, these

changes will expire on December 31, 1998.

On July 10, 1995, the SWRCB received three timely peti-

tions for reconsideration. A single petition was jointly

filed by several persons and entities located in San Joa-

quin County, including the County of San Joaquin

(County), Stockton East Water District (SEWD), Central

San Joaquin Water Conservation District (CSJWCD) Cen-

tral Delta Water Agency (CDWA), South Delta Water

App. 31

Agency (SDWA), Reclamation District No. 2072 (Reclama-

tion District), R.C. Farms, Inc. (R.C. Farms), and Alex-

ander Hildebrand (Hildebrand) (collectively, these parties

are referred to herein as San Joaquin). The other two

petitions were filed by Patrick J. Porgans (Porgans) and

by a group designated as Certain Area I Representatives

and Other Area I Landowners (Area I) within the West-

lands Water District.

2.0 GROUNDS FOR RECONSIDERATION

The SWRCB may order reconsideration on all or a part of

a decision or order adopted by the SWRCB upon petition

by affected persons. (Wat. Code § 1357.) The SWRCB’s

regulations (23 Cal. Code Regs. § 768) list the following

causes upon which an interested person may petition the

SWRCB for reconsideration:

a. Irregularity in the proceedings, or any ruling, or

abuse of discretion, by which the person was pre-

vented from having a fair hearing;

b. The decision or order is not supported by substantial

evidence;

c. There is relevant evidence which, in the exercise of

reasonable diligence, could not have been produced;

d. Error in law.

2.1 Area I’s Grounds

Area I alleges that the first full paragraph on page 13 of

Order WR 95-6 (in section 3.3.1) is subject to misin-

terpretation or misconstruction, which Area I argues

App. 32

could result in an error in law. This allegation is dis-

cussed in Part 4 below.

2.2 San Joaquin’s Grounds

San Joaquin alleges as grounds for reconsideration that

the SWRCB violated the California Environmental Qual-

ity Act (CEQA), that the SWRCB failed to consider and

apply certain statutes, that Order WR 95-6 is not sup-

ported by substantial evidence, that the SWRCB violated

San Joaquin’s due process rights through alleged bias in

the proceedings, and that the SWRCB violated San Joa-

quin’s rights through vagueness in WR 95-6. Thus, San

Joaquin alleges three of the above causes: (1) that there is

error in law, (2) that the order is not supported by sub-

stantial evidence, and (3) that there was irregularity in

the proceedings. As a remedy, San Joaquin requests that

the SWRCB set aside Order WR 95-6 and hold a hearing

on disqualification of SWRCB members and staff. San

Joaquin’s allegations are discussed in Part 5 below.

2.3 Porgans’ Grounds

Porgans alleges as grounds for reconsideration that Order

WR 95.6 is not supported by facts. This is in effect an

allegation that the order is not supported by substantial

evidence. Based on this allegation, Porgans requests that

the SWRCB rescind Order WR 95.6. Porgans’ petition is

discussed in Part 6 below.

Pe ee rT ee

App. 33

3.0 BACKGROUND

The SWRCB adopted Order WR 95-6 after holding a

three-day evidentiary hearing, receiving written closing

statements, and circulating the draft order to the inter-

ested parties in advance of the meeting at which the

SWRCB adopted Order WR 95-6. Order WR 95-6

approved some but not all of the changes that the DWR

and the USBR requested in their petition.

The SWRCB tightly conditioned its approval of the

selected changes to ensure that its action complied with

CEQA, with Water Code sections 1700 et seq., and with

all other applicable laws. The conditions include termina-

tion of the approved changes on or before December 31,

1998. The conditions also include restrictions on the joint

use of the export pumping facilities of the DWR and the

USBR in the southern Delta to ensure that there are no

increases in overall exports as a result of the authoriza-

tion and that the authorization can be used only in con-

nection with efforts to protect fish from entrainment by

the export pumps. Order WR 95.6 requires that, prior to

using the export pumps for these limited purposes, the

DWR and the USBR obtain the review of interested par-

ties to avoid any adverse effects. With these conditions,

Order WR 95-6 will not injure any legal user of the water

involved and will not unreasonably affect fish, wildlife,

or other instream beneficial uses.

4.0 ISSUE RAISED BY AREA I

Area I asserts that its members hold the rights to the

water delivered to its members by the USBR. Area I

further asserts that the USBR cannot reduce the allocation

—EEEEE—————E

App. 34

of water to Area I. Area I requests that the following

paragraph on page 13 of Order WR 95-6 be clarified to

avoid misinterpretation:

“Some contract holders who buy water from the

USBR also claim injury, but their rights to use

water are dependent on the USBR’s right to

divert and use the water. Where the USBR has

obligations either under its permits or under

other laws to limit the amount of water it

diverts and the times when it diverts the water,

the contract holders’ entitlements in the same

water are likewise limited. Additionally, the

USBR’s water right permits and licenses, while

they authorize the USBR to divert water for

beneficial uses, do not require the USBR to do

so. The permits and licenses set the maximum

amounts that the USBR can appropriate, but the

USBR can appropriate less than its permits

allow. Where the USBR decides to take less

water than it is allowed and supplies less water

to a contract holder than the contract holder

claims as an entitlement, the contract holder’s

dispute is with the USBR.”

Area I believes that this language could be misconstrued

or misinterpreted regarding the extent of an appropria-

tor’s water rights. Although the staff of the SWRCB

explained the meaning and basis of this statement by

letter dated June 26, 1995, Area I requests that the

SWRCB formally clarify the specified language.

Area I’s concern centers on the first two sentences of the

above paragraph. Area I urges the SWRCEB to clarify these

sentences by stating that an appropriator’s right to water

can be no greater than the SWRCB-issued water right

permit authorizing such appropriation. This is a correct

App. 35

statement. These sentences are based on the discussion

and holding in United States v. State Water Resources Con-

trol Board (1986) 182 Cal.App.3d 82, 145, 227 Cal.Rptr. 161,

197-198. These sentences point out that under state law

the rights of water users who buy water from the USBR

are no greater than the water rights of the USBR. For

example, where the USBR’s water right permit establishes

a maximum quantity of water that the USBR can appro-

priate, the purchasers of water from the USBR do not

have a right under the permit to obtain more water than

the USBR can appropriate under the permit. This point

also is supported by California v. United States (1978) 438

U.S. 645, 675-677, 98 S.Ct. 2985, 3001-3002.

The subject paragraph also points out that while SWRCB-

issued water right permits establish the upper limits on

water appropriations, they do not oblige a permit holder

to take the maximum amount of water to which it is

entitled. The paragraph further recognizes that regula-

tory agencies other than the SWRCB (including the U.S.

Fish and Wildlife Service and the National Marine Fish-

eries Service acting under the federal Endangered Species

Act) have the authority to issue orders that may have the

effect of reducing the amount of water a water right

holder such as the USBR feasibly can appropriate.

5.0 ISSUES RAISED BY SAN JOAQUIN

San Joaquin filed both a petition for reconsideration and a

petition for writ of mandate in the Sacramento County

Superior Court. The contents of the petition for writ of

mandate are similar to the petition for reconsideration,

but the allegations are organized differently.

App. 36

5.1 CEQA Compliance

San Joaquin argues that the SWRCB violated CEQA in

three ways: by using the Environmental Report (ER) as an

environmental document for Order WR 95-6; by using the

ER as a programmatic document under CEQA; and by

failing to address the impacts of Order WR 95-6 in the ER.

The use of an ER as an environmental document and the

ability to use an ER (i.e., a certified program analysis) as a

programmatic document are discussed together in Sec-

tions 5.1.1 and 5.1.2 of this order. Under the specific

circumstances of this action the ER was properly used

and is adequate to satisfy the requirements of CEQA.

5.1.1 The Statutory Basis for Using the ER as an Envi-

ronmental Document

The SWRCB used the ER as the environmental documen-

tation for the adoption of Order WR 95.6. The ER was

prepared under Public Resources Code section 21080.5 as

a certified program analysis of the environmental effects

of the 1995 Bay-Delta Plan. Order WR 95-6 temporarily

implements some of the objectives adopted in the 1995

Bay-Delta Plan. As a result of Order WR 95-6 and the

actions of other agencies, the 1995 Bay-Delta Plan will be

implemented in the short term.

Order WR 95-6 at pages 31.35 explains why the use of the

ER as the environmental documentation for Order WR

95-6 is appropriate. Primarily, the SWRCB relied upon the

opinion of the Deputy Secretary and General Counsel

(Resources Counsel) of the California Resources Agency

issued April 4, 1995. The Resources Counsel pointed out

that the rules that apply to the use of an EIR by a

App. 37

responsible agency also apply to the use of a certified

program analysis prepared under Public Resources Code

section 21080.5. (See 14 Cal. Code Regs. § 15253.) This

means that a responsible agency is required to use the

environmental analysis prepared pursuant to a certified

program in the same manner as reliance on an EIR or

negative declaration.

As the Resources Counsel further explained, a single EIR

can be used to support implementation of an entire pro-

gram without having to prepare additional EIRs or nega-

tive declarations. (14 Cal. Code Regs. § 15168(c)(5).) The

CEQA Guidelines, at section 15165, require that when

individual projects are, or a phased project is, to be

undertaken and where the total undertaking comprises a

project with significant environmental effect, the lead

agency shall prepare a single program EIR for the ulti-

mate project. (14 Cal. Code Regs. § 15165.) Where an

individual project is a necessary precedent for action on a

larger project, or commits the agency to a larger project,

with significant environmental effect, the EIR must

address itself to the scope of the larger project. (Id.) A

program EIR is used for actions that are logical parts in

the chain of contemplated actions. A program EIR must

address itself to the scope of the larger project as well as

providing an adequate analysis of the initial activity. (See

14 Cal. Code Regs. § 15168.) In preparing the ER, the

SWRCB intended to meet the substance of sections 15165

and 15168 in the ER notwithstanding that the ER is a

substitute for an EIR.

The Resources Counsel pointed out that to dispense with

additional EIRs or negative declarations for later projects,

the program EIR must be comprehensive and specific. (14

App. 38

Cal. Code Regs. § 15168(c)(5).) Subsequent activities that

are within the scope of the project described in the pro-

gram EIR require no further documentation. (Id.) If a

subsequent project would have significant impacts that are

not addressed in the program EIR, a subsequent or sup-

plemental EIR is required. (See 14 Cal. Code Regs.

§ 15168(c).) The program EIR can be used to simplify the

task of preparing any environmental documents that are

required for later parts of the program. (14 Cal. Code

Regs. § 15168(d).)

The Resources Counsel explained that, while not manda-

tory, a certified program’s analysis may be prepared in

the same manner as a program EIR. All provisions of

CEQA apply to the use of a certified program analysis in

the same manner as a regular EIR, except the provisions

that are specifically exempted. (EPIC v. Johnson (1985) 170

Cal.App.3d 604, 216 Cal.Rptr. 502.) Based on EPIC, it is

the opinion of the Resources Counsel that an environ-

mental analysis which is prepared programmatically may

serve as a basis for subsequent implementing actions

without the need to prepare additional environmental

review documents.

The SWRCB explained in Order WR 95-6 at page 33 a

second reason why an EIR substitute should be adequate

for a subsequent action on the same project when the lead

agency takes the subsequent action. That is, the CEQA

regulations require the use of an EIR substitute by a

responsible agency for a subsequent approval when the

EIR substitute meets the specified criteria. (14 Cal. Code

Regs. § 15253.) This regulation does not, however, discuss

the use of an EIR substitute by the same agency for a

subsequent approval. Apparently this is an oversight,

EL AIG LT I ae

TE WBE GF Sa tip NN MELE ts AIRE AES AT

App. 39

since most lead agencies do not need to take more than

one action to carry out a project. The SWRCB, however,

must take a second action under separate authority to

carry out the project described and analyzed in the ER. If

the SWRCB’s water right action were carried out by

another agency, all of the criteria in section 15253(b)

would be met, as is explained in Order WR 95-6.

5.1.2 The ER Meets All of the Requirements for Use as a

Programmatic Document

The project analyzed in the ER is the adoption and imple-

mentation of the 1995 Bay-Delta Plan. The 1995 Bay-Delta

Plan, however, is not self-implementing. If only the

effects of adopting the plan were analyzed, there would

be no need for an analysis because there would be no

immediate changes in the physical environment. A subse-

quent action to implement the plan was required before

the 1995 Bay-Delta Plan could have any physical effect.

The ER analyzes the effects of implementation because

the CEQA Guidelines direct an agency not to piecemeal

the analysis of the effects of a larger project where a

series of individual actions are required to complete the

project. The ER follows this directive to the extent possi-

ble, but does not reach the upstream effects of the future

allocations of responsibility to water right holders! who

' These parties have not yet been identified. Their

responsibilities will be quantified in a water right proceeding

which is currently commencing, but that proceeding will not be

completed for approximately three years. Subsequent

environmental documentation will cover the currently

unknown effects of requiring additional water right holders to

help meet the standards.

App. 40

do not currently have responsibility to meet Bay-Delta

water standards. The ER analyzes the effects of imple-

mentation on areas upstream of the Estuary using the

assumption that all of the implementation responsibility

will be carried out by the DWR and the USBR. The ER

also analyzes the effects of adopting and implementing

the 1995 Bay-Delta Plan on the environment in the Estu-

ary and in the areas that receive water exported from the

Estuary. The analyses for the Estuary and for the export

areas may not require future supplementation.

All of the environmental effects of currently implement-

ing the changes in the water quality standards through

the efforts of the DWR and the USBR are adequately

analyzed for CEQA purposes within the ER. Although

Order WR 95-6 does not require the DWR and the USBR

to implement all of the new standards, the DWR and the

USBR are currently required, as a result of Order WR 95-6

plus the actions of other regulatory agencies, to meet the

full set of new standards. San Joaquin nevertheless con-

tends that the ER does not adequately analyze the effects

of the SWRCB’s temporary (until the end of December

1998) action to complete current implementation of the

1995 Bay-Delta Plan through the DWR and the USBR. In

effect, San Joaquin is arguing that the SWRCB should

prepare an environmental document that ignores the net

effect of the several agencies’ actions (which is identical

to the effect of implementing the 1995 Bay-Delta Plan)

and instead dissects the effects of each standard as if it

had a separate effect. The standards interact, however,

and the effect of their interaction differs from the sum of

their individual effects. As a result, the dissection San

Joaquin argues for would produce a theoretical result,

App. 41

and it would not disclose the actual physical impacts that

are most likely to occur.

San Joaquin asserts incorrectly that the ER does not dis-

cuss its role as a “Program EIR”. In fact, the ER discusses

both the programmatic nature of its analysis and the

effects of implementation actions by the DWR and the

USBR. The programmatic nature of the ER and the imple-

mentation of the plan are specifically discussed in the ER

as follows. On page I-13, the ER points out that the

SWRCB will use it “in conjunction with subsequent imple-

mentation proceedings to modify D-1485 to eliminate incon-

sistencies between that decision and the plan.” On page

II-1, the project definition describes the project as includ-

ing review and amendment of both the objectives and the

program of implementation. The project definition says

that the program of implementation includes actions the

SWRCB will undertake. In sections VII, VIII, XII, and XIII

of the ER, the effects of implementation of the 1995 Bay-

Delta Plan are analyzed. At page VIII-l, paragraph 2, the

ER explains that because the objectives will not be imple-

mented until a later decision, the ER analyzes the effects

of implementation by using the USBR and the DWR as

surrogates for the entire set of water right holders who

ultimately may be responsible for meeting the objectives.

The SWRCB in Order WR 95-6 did not, as San Joaquin

suggests, conclude that the ER is a programmatic EIR.

The ER is a substitute for an EIR. Rather, the SWRCB

concluded that the ER meets the requirements for a pro-

grammatic EIR. (See Order WR 95-6, page 32, 3d para-

graph.)

App. 42

As discussed above and in the CEQA Guidelines, a pro-

gram EIR can be used to cover the first action in a series

and to (1) cover the effects of some or all later actions or

(2) simplify the task of preparing a subsequent EIR or

negative declaration for a later action. (14 Cal. Code Regs.

§ 15168(c),(d).) The ER so far has been used for the initial

action of adopting the 1995 Bay-Delta Plan and for the

short-term implementing action which is Order WR 95-6.

For future implementation of the 1995 Bay-Delta Plan, the

ER will be used as a tiering document to simplify the task

of preparing subsequent environmental documentation.

Any necessary subsequent environmental documentation

will be prepared for the future phases of implementation.

This is in part because a different analysis will be needed

when the SWRCB considers assigning responsibilities to

parties in addition to the DWR and the USBR. Where

implementation actions will not have any significant

adverse effects which were not analyzed in the ER, as is

the case for Order WR 95-6, subsequent or supplemental

documentation is not required.

5.2 Water Code Compliance

Next, San Joaquin contends that the SWRCB failed to

consider and apply a number of sections of California

water law in approving the change petition filed by DWR

and USBR. San Joaquin cites and copies numerous Water

Code sections which it claims Order WR 95-6 violates,

including sections from the Delta Protection Act (Wat.

Code § 12200 et seq.), the San Joaquin River protection

statute (Wat. Code § 12230 et seq.). the Watershed of

Origin Act (Wat. Code § 11460 et seq. and § 11128), and

the County of Origin Act (Wat. Code §§ 10505 and

App. 43

10505.5). San Joaquin does not, however, explain in its

petition for reconsideration why it believes these statutes

have been overlooked or violated by the adoption of

Order WR 95-6. Nor does San Joaquin explain why these

Statutes are material to a determination to approve a

change petition in which no new rights were accorded to

the USBR and the DWR. Notwithstanding San Joaquin’s

contention, Order WR 95-6 complies with all applicable

Water Code provisions.

5.2.1 Background

San Joaquin apparently contends that Order WR 95-6

authorizes the DWR and the USBR to deprive San Joa-

quin’s members of water supplies to which they are

legally entitled. San Joaquin’s members are situated in

San Joaquin County, and the USBR’s New Melones Reser-

voir is on the Stanislaus River upstream of San Joaquin’s

members. Apparently San Joaquin’s members are con-

cerned that in some way approval of Order WR 95-6

could reduce the amount of water from the Stanislaus

River available for their uses. Some of San Joaquin’s

members buy 0: would like to buy water from the USBR’s

New Melones Project. Others of San Joaquin’s members

claim that they have water rights in the Delta that are

senior to the rights of the USBR.

San Joaquin’s water buyer members apparently want the

SWRCB to order the USBR to deliver water to them. To

justify such an order, San Joaquin is attempting to estab-

lish that its water buyer members have a water right to

water the USBR has appropriated at New Melones Reser-

voir. The buyers have contracts with the USBR to buy

App. 44

water when water is available, and they apparently assert

that these contracts establish their water rights. In addi-

tion to seeking to establish a right under state law, SEWD

and CSJWCD have filed an action against the USBR in

federal court in an attempt to force the USBR to deliver

water to them in preference to fish releases. The U.S.

District Court for the Eastern District of California denied

their request for a preliminary injunction on March 17,

1995. (Stockton East Water District and Central San Joaquin

Water Conservation District v. United States of America et al.

No. CV-F-94-6103 OWW.)

San Joaquin’s water buyer members are not getting as

much water from New Melones Reservoir under their

contracts as they anticipated. At the time of the hearing,

the USBR in 1995 planned to deliver up to 37,000 acre-feet

(af) to CSJWCD, but no water to SEWD. SEWD and

CSJWCD recently completed the Goodwin Tunnel to

transport New Melones water to their service areas from

Goodwin Dam on the Stanislaus River. The tunnel cost

$65 million and their contracts with the USBR allow them

to buy up to 155,000 acre-feet per annum (afa) of water.

Their contracts to buy water from the USBR, however, are

prioritized behind earlier contractors. SEWD’s contract

provides only an interim water supply that can be

reduced as demands by other contractors, including CSJ-

WCD, increase. (SEWD 1, page 5.)

San Joaquin’s members who claim senior water rights for

agricultural use in the Delta want the USBR to release

water from New Melones Reservoir on a schedule that

will ensure that they will receive high quality water

throughout their summer irrigation season. They are con-

cerned that if more water than necessary is released for

App. 45

fishery protection early in the year, New Melones Reser-

voir will run out of water by the end of the summer.

5.2.2 Allegations that the USBR’s Permits are Violated

San Joaquin contends that Order WR 95-6 allows USBR to

release more water from New Melones Reservoir for fish-

ery protection than is necessary, and that the USBR is

exporting the water released for fish when the water

reaches the Delta. San Joaquin further alleges that the

export of water that originated in the Stanislaus River

and was controlled by the New Melones Project is a

violation of the New Melones water right permits. The

New Melones water right permits prohibit the USBR from

delivering water appropriated under these permits for

consumptive uses outside the counties of Stanislaus, Cal-

averas, Tuolumne, and San Joaquin. For the reasons dis-

cussed below, however, the USBR would not necessarily

violate its New Melones project permits even if it

exported the water when it reached the Delta pumps.

The flow releases San Joaquin apparently is most con-

cerned with do not fall within the scope of the SWRCB’s

current proceeding. The current proceeding addresses a

petition filed by the USBR and the DWR asking for

changes. San Joaquin has not followed the appropriate

procedures for requesting that the SWRCB take an

enforcement action against the USBR. San Joaquin could

file a complaint with the SWRCB under Title 23, Califor-

nia Code of Regulations, section 820 et seq.

App. 46

Nevertheless, San Joaquin’s issue merits some discussion

of whether and under what circumstances a permit viola-

tion could occur under the facts alleged by San Joaquin.

As is discussed above in Part 4.0, a water right permit

holder is not obliged by its permit to appropriate the

maximum amount of water to which it is entitled. Nor

does the permit prohibit the permittee from either aban-

doning the water or using the water for fewer than all of

the beneficial uses for which it was appropriated.?

Among other beneficial uses, the USBR’s New Melones

permits authorize appropriation of water for fish and

wildlife preservation and enhancement uses. During the

time since the New Melones permits were approved

under Water Right Decision 1422 in 1973, the USBR’s

water right permits have not limited the amount of water

the USBR can release for fishery protection. Order WR

95-6 did not change this. Consequently, the USBR can

release as much water as is necessary for fishery protec-

tion without violating its water right permits. The USBR

currently is using its New Melones permits to satisfy its

obligation under the federal Endangered Species Act to

minimize its take of Delta smelt incident to operation of

the Central Valley Project. New Melones is a component

of the Central Valley Project. The Biological Opinion for

Delta smelt establishes minimum flows at Vernalis that

are coupled with export limitations at both the USBR and

the DWR pumping plants to protect Delta smelt habitat in

the lower San Joaquin River. The San Joaquin River

2 A permit may, however, require that certain amounts be

released or bypassed for specified uses that are to be preserved,

including fishery uses or prior water rights.

App. 47

instream fish flow releases are like return flow from

irrigation; after the water has been put to the beneficial

use for which it was appropriated, it is abandoned. If

water has been abandoned, it can be appropriated again.

The export constraints in Order WR 95-6 and in the

Biological Opinion limit the amount of this water that can

be reappropriated.

Because of the limited places of use authorized in the

New Melones permits and because the permits do not

authorize a point of diversion or rediversion in the south-

ern Delta, the USBR would need changes in its permits

before it could use its New Melones water rights to

export water. However, the USBR has other permits that

allow appropriation from the channels of the Delta and

the USBR can appropriate any unappropriated water,

including abandoned water, in the Delta under these

permits. Thus, if the USBR releases water from New

Melones Reservoir for the beneficial use of fish and wild-

life preservation and enhancement, and this use is satis-

fied, the water remaining in the river becomes abandoned

water that the USBR could appropriate along with unap-

propriated water from other sources.

It is unlikely that the USBR intentionally would release

an unnecessarily large amount of water from New Mel-

ones in an attempt to export more water. If the USBR

were to do this and then reappropriate and export the

water, it could be argued that such a release constituted

an unreasonable use of water, which would be a violation

of its permits. Additionally, this water could be appropri-

ated between the point where it was abandoned (at Ver-

nalis) and the export pumps by other water right holders

with seniority over the USBR’s Delta permits. Since even

App. 48

new water appropriators (including San Joaquin’s mem-

bers) can obtain seniority over the USBR with respect to

water that otherwise would be exported for use outside

the watershed of origin, it is unlikely that the USBR could

export substantial amounts of abandoned water that orig-

inated in the San Joaquin River watershed. Further, if any

abandoned water reached the southern Delta pumps, the

DWR as well as the USBR would have the right to appro-

priate it. Thus, the USBR may not be able to recover

enough excess water abandoned from New Melones Res-

ervoir to make excess releases worthwhile. Finally, if the

USBR were to make releases in excess of the amounts

needed to protect fish, San Joaquin could request an

enforcement action.

5.2.3 Alleged Violation of San Joaquin River Protec-

tions

The sections that San Joaquin cites and quotes from the

San Joaquin River protections are discussed in Order WR

95-6 at pages 13 and 14. As the order explains, the San

Joaquin River protection statute (Wat. Code § 12230 et

seq.) does not apply to the permits amended by Order

WR 95-6 for New Melones Reservoir.

5.2.4 Alleged Violation of Watershed of Origin and

County of Origin Acts

The Watershed of Origin (Wat. Code §§ 11460 et seq. and

11128) and County of Origin acts (Wat. Code §§ 10505

and 10505.5) (Area of Origin laws) also do not support

a ee le eee oe ee

ye Oe Rg eee RN eee ee 3 Be wl ad =

App. 49

San Joaquin’s arguments. The Area of Origin laws? allow

prospective in-area water users to obtain permits that

have seniority over export water rights if (1) there is no

water available for appropriation within the area and (2)

water from the area is being exported to another area

under a permit or license that is subject to one of the

above statutes.

An exporter who knows that a prospective water buyer

could obtain a senior water right could choose to serve

the water in question within the area of origin instead of

in the export area. If the exporter did not agree to serve

the water within the area of origin, however, the in-area

user’s only recourse would be to pursue an application to

appropriate the exported water. (25 Ops.Cal.Atty.Gen. 8,

20-21 (1955).) Since the USBR does not have permission to

export water appropriated under its New Melones per-

mits, a new in-area water user such as San Joaquin’s

members could not get seniority over the USBR’s New

Melones water right permits under these statutes. In the

case of County of Origin applications, a new appropriator

could only appropriate the amount of water that is pro-

duced within the county; water produced upstream in

other counties would not be available to San Joaquin

under this statute. (See id. at 17.)

San Joaquin alleges that the USBR nevertheless is export-

ing water previously stored in New Melones Reservoir to

areas outside the area of origin. San Joaquin alleges that

releasing water for fish in the Delta is a use outside the

3 See, generally, 25 Ops.Cal.Atty.Gen. 8 (1955); 25 Ops.

Cal.Atty.Gen. 32 (1955); 28 Ops.Cal.Atty.Gen. 307 (1956); 29

Ops.Cal.Atty.Gen. 136 (1957).

Se erreeenmnnnnrnenennemmeniinameassill

App. 50

county or watershed of origin. The fish releases San Joa-

quin complains of, however, are not required by Order

WR 95-6. Even if Order WR 95-6 somehow caused

increased releases from New Melones Reservoir, this alle-

gation does not help San Joaquin. Because the water from

the Stanislaus River (New Melones) flows in its natural

course through the Estuary to the sea, the entire Estuary

is within the watershed. The Watershed of Origin Act

does not provide a basis for San Joaquin to obtain any

preference or priority over other uses, including instream

beneficial uses, that are in the watershed. The fish

releases also are beneficially used within the place of use

for New Melones water, since their purpose is to provide

flows in the lower San Joaquin River, within San Joaquin

County.

5.2.5 Alleged Violation of Delta Protection Statutes

Regarding San Joaquin’s allegation that the Delta protec-

tion statutes are violated, there is again no explanation of

how Order WR 95-6 will cause a violation of these sec-

tions. The Delta protection statutes (Wat. Code § 12200 et

seq.) are intended to require the DWR and the USBR to

provide salinity control and an adequate water supply for

users of water in the Delta, as a condition of exporting

water from the Delta. The purpose of Order WR 95-6 is to

protect Delta water quality, not to increase exports. The

changes approved in Order WR 95-6 and by other agen-

cies improve water quality protection. If any violation of

these sections by the DWR or the USBR exists, it is the

result of the actions of entities other than the SWRCB,

and not the result of adoption of Order WR 95-6. If San

ee ———— oS —Ee Se.

—————— ee

App. 51

Joaquin believes that a water right holder is violating its

water rights, San Joaquin could, as explained above, file a

complaint with the SWRCB. San Joaquin has not done so.

5.2.6 Allegation Regarding Water Code Section 12931

Finally, San Joaquin without explanation notes that Water

Code section 12931 deems the Delta to be within the

watershed of the Sacramento River. By its own terms, this

statement is true only for the purposes of the chapter in

which this section appears. That chapter addresses fund-

ing for construction of the State Water Project. It speci-

fically does not affect water rights. (See Wat. Code

§ 12931.) Therefore, this section adds nothing to San

Joaquin’s contentions.

5.3 Allegations of Injury to Legal Users of Water

San Joaquin contends that Order WR 95-6 is not sup-

ported by substantial evidence. San Joaquin bases this

contention on its assertion that there are no findings

under Water Code section 17024 that say that the changes

approved in Order WR 95-6 will not operate to the injury

of petitioners as legal users of the water. Order WR 95-6

complies with section 1702. The SWRCB gave substantial

attention to the potential effects of the changes on San

Joaquin’s members. To ensure there would be no injury to

San Joaquin’s members or others who claim to be legal

4 Water Code section 1702 requires the petitioner asking for a

change in an existing water right to establish to the satisfaction of the

SWRCB that the change will not operate to the injury of any legal

user of the water involved.

App. 52

users of the water involved, the SWRCB modified the

proposed changes. In other words, Order WR 95-6 as

adopted will not operate to the injury of any legal user of

the water involved; nor will it operate to the injury of San

Joaquin’s members.® This is not a finding, however, that

actions taken independently by other agencies including

the USBR will not affect the water supply of water users

who obtain water from the USBR.

5.3.1 Change in Points of Diversion

San Joaquin makes numerous allegations that it contends

show [sic] violation of section 1702. First, San Joaquin

rewords a finding on page 46 of Order WR 95-6 to imply

that the SWRCB did not examine the effect of a change in

the USBR’s point of diversion in the southern Delta on

other legal users of water. As reworded by San Joaquin, it

would say the SWRCB “does not presume that the USBR

will [implement the flows in a manner that will cause

harm to legal users].” In fact the finding simply rejected

an argument that if any change in point of diversion was

allowed, the USBR would use it for the purpose of violat-

ing existing restrictions in its permits. The SWRCB

refused to assume that the USBR would intentionally

violate its permits if the SWRCB approved a change

order.

Next, San Joaquin makes the bizarre contention that by

placing limitations on its approval of the joint points of

5 The SWRCB has not determined whether or not San Joaquin’s

members are legal users of the water involved within the meaning of

Water Code section 1702.

SR le Pate iy Ss A ain a

App. 53

diversion to prevent injury to legal users of water, the

SWRCB somehow violated section 1702. The very pur-

pose of these limitations was to ensure compliance with

section 1702 including avoiding any potential adverse

effects on the environment and to protect San Joaquin’s

members from any possible loss of water attributable to

Order WR 95-6.

The heart of San Joaquin’s argument is a claim that the

DWR and the USBR did not provide evidence to support

a finding that the requested changes would not harm any

legal user of water. This is simply incorrect. The DWR

and the USBR did provide evidence for this purpose, but

since the requested changes could have added as much as

30,000 af of water per year to the more than 6 million af

annual diversions in the southern Delta, the SWRCB

restricted its approval of the changes. San Joaquin, how-

ever, failed to rebut the evidence regarding lack of harm

or explain why the evidence was unpersuasive. San Joa-

quin instead chooses to accuse the SWRCB of improperly

shifting the burden of proof to the parties who claim to be

legal users of water. The SWRCB did not, however, shift

the burden of proof. It made its findings in accordance

with the weight of the evidence. These findings, of

course, are based on the changes approved by the

SWRCB. There is no requirement that the SWRCB find

that the changes as proposed by the DWR and the USBR

would not have caused injury to any legal user of water.

The changes as approved will not cause injury to any legal

user of water.

App. 54

5.3.2 Change in Export Rate Limits

Next, San Joaquin attacks the change in export rate lim-

itations in May, June and July. The export rate limitations

under D-1485 are 3,000 cfs in May and June and 4,600 cfs

in July at each of the two pumping plants. Under Order

WR 95-6 combined export rates are limited to 35 percent

of Delta inflow during February through June and 65

percent of Delta inflow during July through January.®

This change replaces a springtime export limit with all-

year limits. Apparently San Joaquin fears that this repre-

sents an increase in exports in the spring, and that an

increase in exports will mean a lack of water for its

members’ uses later in the summer. During wetter spring-

time periods more water will be exported and during

drier springtime periods less water will be exported than

previously. A higher export during wetter periods will

not harm other water users since more water generally is

available during these circumstances. On an average

annual basis, this change reduces the net quantity of

water that can be exported. It also shifts substantial quan-

tities of export diversions from springtime, when fish are

more susceptible to entrainment, to other times of year.

San Joaquin expresses particular concern about an export

limit in Order WR 95-6 which applies from about April 15

flows, exports, and fish entrainment in the export pumps. When flows

in the Delta are higher, exports have less of an effect on aquatic

resources.

A AERA ME SRA EE

App. 55

through May 15 for 31 days.” San Joaquin misunder-

stands this limit. Assuming that San Joaquin wants to

limit or reduce exports, this limit will benefit San Joaquin.

This new limit, set forth in Attachment B and in footnotes

10 and 11 of Attachment B, limits the combined export

rate to 1,500 cfs or 100 percent of the average San Joaquin

River flow at Vernalis, whichever is greater. This export

limit is further limited so that combined exports in any

event will not exceed the overall limit during February

through June of 35 percent of Delta inflow. San Joaquin

believes that this limit allows an increase in exports from

the southern Delta. To the contrary, this reduces exports

when it is in effect.

First, this is a new limit. Previously, the export rate could

exceed the rate of flow in the San Joaquin River at Vernal

is during this period. Figure 1 shows that during the

reference period of 1984 through 1992, the exports in the

southern Delta exceeded 100 percent of the Vernalis flow

during the April 15 to May 15 period in all except one

year, which was a wet year. Figure 1 shows that exports

regularly have exceeded 250 percent of San Joaquin River

inflow and in two years exceeded 400 percent. Further,

Figure 2 shows that under modeled conditions using the

1984 through 1992 hydrology and existing water supply

demands during April and May when the 100 percent

limitation is in place, exports under D-1485 would be

higher except in May of 1986 than they would be under

the new standards (preferred alternative) with the

increased Vernalis flows.

7 This is not a May-June limitation as San Joaquin states. It

applies roughly from April 15 through May 15.

App. 56

Second, some of the water that will be exported in the

southern Delta during this period will come from other

sources. For example, modeling studies indicated that

when Sacramento River flow is 15,000 cfs; San Joaquin

River flow is 5,000 cfs; and export pumping is 9,000 cfs

(180 percent of San Joaquin River flow), approximately 75

percent of the water exported originates in the San Joa-

quin River. (SWRCB-4, Item 142: Miller, Dr. William J.,

“Preliminary Analysis of Transport in the Sacramento-San

Joaquin Delta.”) Thus, the full flow of the San Joaquin

River would not be exported during this period in any

event. The 100 percent figure is merely a way of measur-

ing the exports to ensure that exports are not so high that

they will take too many young fish. San Joaquin appar-

ently assumes that, like water in a stream system, the

water at the export pumps is all from one source. Because

the export pumps are in a tidal estuary, however, the

waters from various sources are mixed at the pumps.

App. 57

FIGURE 1

Average Historical Exports as a Percent of Vernalis Flow

April 15 through May 15

Water Years 1984-1992

Percent

600

me aaa

se A

390 he

"sich ie ded betters il eR tie / nn 361- - Me

ot ts 7H

300 | | io

200 |

100 |---

1984 1985

1986

1987

1988 1989

Water Year

M® % Exports |

1990

Source: DAYFLOW

Percent exports is defined as the sum of SWP and CVP pumping divided by San Joaquin River flow at Vernalis, times 100

6 Rated aia ge i uy) de» tes ¢

App. 58

FIGURE 2

AVERAGE MODELED EXPORTS IN APRIL AND MAY

Water Years 1984-1992

Exports (TAF)

700 Be

600 a5 es vagina get ee ea oa se

500

‘]

400 + @ --------@--------- eRe <B-- ~--+-7B--------

| aE :

300 |- AE i. ae

i i

200 | BR-- - & i. Ae

: :

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Apr 84 Apr 85 Apr 86 Apr 87 Apr 88 Apr 89 Apr 90 Apr91 Apr 92

May 84 May 85 May 86 May 87 May 88 May 89 May 90 May 91 May 92

M@ Base Case @ Preferred Alternative §

Source: DWRSIM studies

Exports are defined as pumping at Banks and Tracy

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App. 59

5.3.3 General Allegations of Harm

Next, San Joaquin argues that consolidation of the points

of diversion and other changes will cause an increase in

rates of diversion resulting in adverse effects on the

quality of water used by San Joaquin’s members. San

Joaquin does not explain how this will occur; nor does it

cite any evidence in the record to this effect. The record

shows that the authorized changes will not have these

effects. It is possible, however, that changes instituted by

the USBR to comply with the Endangered Species Act

could have these effects. The SWRCB did not require, in

Order WR 95-6, the instream flows at Vernalis that USBR

independently is providing for fish. Apparently San Joa-

quin believes that these flows may deplete New Melones

Reservoir early in the year, leaving inadequate water for

salinity control later. As explained in Order WR 95-6, the

USBR is not excused from meeting the agricultural

salinity requirements at Vernalis. Consequently, if the

USBR fails to manage its New Melones water supply

adequately to ensure that the salinity requirements will

be met, San Joaquin’s members could file a complaint

with the SWRCB alleging permit violations.

5.3.4 Changes for Striped Bass, Suisun Marsh, Delta

Cross Channel Operations, and Southern Delta

Agriculture

Next, San Joaquin alleges that Order WR 95-6 replaced

the water quality standards for striped bass spawning

and for Suisun Marsh protections with higher standards

which San Joaquin apparently believes will put more

demand on the waters of the San Joaquin River. Actually,

App. 60

the new Suisun Marsh standards require less salinity

protection than the previous standards. Also, the water

that flows into Suisun Marsh at Montezuma Slough is

primarily from the Sacramento River, and the flows in the

San Joaquin River are not a significant source of salinity

control for the Suisun Marsh. The new striped bass stan-

dard requires a lower (better) salinity than previously,

but this standard almost always will be met by the agri-

cultural salinity standard for that time period.

Next, San Joaquin contends that the change in the stan-

dard for Delta Cross Channel gate operation will cause

deterioration in water quality at Vernalis. This is physi-

cally impossible. The Delta Cross Channel is in the north-

ern Delta, connecting the Sacramento River and the

Mokelumne River. Vernalis is on the San Joaquin River at

the point where it enters the southern Delta. San Joaquin

also repeats its contention at this point that the changes

in export limits will result in additional exports. As

explained above, this contention is incorrect.

Finally, San Joaquin contends that the change in the Ver-

nalis agricultural salinity standard from that in condition

5 of Water Right Decision 1422 will cause the release of

water from New Melones rather than taking this water

from exports, reducing the quantity of water available for

CSJWCD and SEWD to buy from the USBR. This conten-

tion is erroneous. The change merely improves the stan-

dard when improvement is needed for crops and reduces

it when better quality is not needed for crops. The net

water supply impact of this change is zero. Further, water

for salinity control has been provided from New Melones

Reservoir since New Melones Reservoir commenced

MRO OID ate pau a CS Natet Ni LOR IN SO BORG SK tyes

App. 61

operating. Consequently, this change causes no added

burden on New Melones Reservoir.

5.4 Allegations of Conflicts of Interest

San Joaquin contends that the SWRCB has denied it due

process by having ex parte contacts with the parties to the

Principles for Agreement which was executed December

15, 1994. The Principles for Agreement is a recommenda-

tion to the SWRCB for adoption of a particular set of

water quality objectives and implementation measures

for what became the 1995 Bay-Delta Plan. The Principles

for Agreement was considered as evidence in a hearing

on a draft of the 1995 Bay-Delta Plan, and the plan

incorporates many of the features of the Principles for

Agreement.

The Principles for Agreement also discusses changes in

water rights to implement the Principles for Agreement

or to implement the water quality control plan. San Joa-

quin’s members are concerned that the SWRCB may

believe that it is bound by the Principles for Agreement

because the California Secretary for Environmental Pro-

tection signed it, and the SWRCB is under the California

Environmental Protection Agency. This fear is

unfounded. The SWRCB’s members serve four-year terms

and can be removed from office only by the Legislature

and only for dereliction of duty, corruption, or incompe-

tency. Further, the SWRCB is an independent agency and

is not bound by law to follow the direction of the Secre-

tary for Environmental Protection.

The SWRCB in its water right hearing received evidence

regarding the Principles for Agreement along with other

App. 62

evidence. In adopting Order WR 95-6, the SWRCB was

not bound by the Principles for Agreement. For example,

the SWRCB selectively approved only those changes

which it found were appropriate and did not harm any

interests. Further, it approved the changes for only a

limited period.

While some of the wording in the Principles for Agree-

ment may appear to direct the substance of the SWRCB’s

actions, the SWRCB believes this is merely an unfortunate

choice of words. The parties to the Principles for Agree-

ment had no authority to control the actions of the

SWRCB. Also, most of the directive language in the Prin-

ciples for Agreement is procedural, and is copied from

the Framework Agreement which was executed in June

and July 1994. The Framework Agreement sets a schedule

for agency actions directed toward resolving Bay-Delta

problems. The SWRCB signed the Framework Agreement,

agreeing to proceed on a time schedule but not agreeing

to the outcome. SWRCB’s procedures in the Framework

Agreement are the same procedures the SWRCB routinely

uses.

Some staff of the SWRCB attended some of the negotia-

tions or meetings that led to the Principles for Agree-

ment. During the negotiations the Executive Director, the

Assistant Division Chief for the Division of Water Rights,

and the Chief of the Bay-Delta Unit attended a few meet-

ings and provided institutional information. At the end of

the negotiations, these staff members attended some

meetings to liste

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