# Petition for Writ of Certiorari — County of San Joaquin v. California Water Resources Control Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1651%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 522 U.S. 1048 ## Text “EL &O or 721 OCT 27 097 Orfict UF tHe CLERK In The Supreme Court of the United States October Term, 1997 e 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 \ \ i 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? il 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. iv 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 Vv 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 vi 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 1 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 3 | 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 4 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. (c) Pleading Reasons for Nonjoinder. A 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 5 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. (c) A complaint or cross-complaint shall 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). 6 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.) 7 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.) 8 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 9 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.) 10 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 11 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 12 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 13 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. 14 (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. (c) By allowing staff, including those 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.) 15 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 16 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 17 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 18 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 19 (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.) 20 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 21 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). 22 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 23 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 24 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, 25 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. 26 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 27 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 28 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 29 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 30 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 ii 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., ee 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, eo 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 | j | | : 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 is less than compelling authority in this regard. 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.® t ; | 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. / Ce 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 i 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 LEE } : 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 . : rate ag Ra ica ratte Pa ein TAO TAT EO Oe on eA RE ooh yas ae Nin saa ae ae SF ET in eel ade - s hae So ee hati aia i > . Poe 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 listen to the parties go through their list of agreed points. During the negotiations, no staff member supported a particular interest, although staff did at times provide input on procedural matters and reported Pe eee rete t etn ~ f FORME App. 63 on discussions between the staffs of the SWRCB and the U.S. Environmental Protection Agency on related issues that were not the subject of negotiations. Although San Joaquin implies that staff contacts with the negotiations were not disclosed prior to the water right hearing that led to Order WR 95-6, the Chairman of the SWRCB in fact disclosed the existence of the staff contacts at the begin- ning of the hearing on April 18, 1995. Additionally, it was announced during the public workshops held in the fall of 1994 that the staff would maintain contact with any parties who sought to negotiate agreements. San Joa- quin’s members participated in the workshops and could have raised their objections when this was announced or at any time after it was announced. Further, there is no legal prohibition against the staff contacts since the staff did not make the decision in Order WR 95-6 and did not communicate the substance of the information received to the members of the SWRCB. The Board members were not involved, even indirectly, in the negotiations. At the hearing, the Chairman of the SWRCB also pointed out that no member of the SWRCB had attended any meeting in which the Principles for Agreement was nego- tiated. The members of the SWRCB are the sole decision- makers with respect to Order WR 95-6. San Joaquin nevertheless now assumes and argues that members of the SWRCB engaged in ex parte contacts. The SWRCB through its attorneys has provided CDWA, a member of San Joaquin, access to all nonprivileged public documents in the possession of SWRCB staff that relate to negotiation of the Principles for Agreement. CDWA’s attorney viewed these documents on May 31, 1995 and requested copies of some. These documents are in the App. 64 files of the SWRCB, and the SWRCB’s staff entered the files in evidence at the start of the hearing. SWRCB’s attorney provided the copies to CDWA’s attorney by let- ter dated June 6, 1995. CDWA’s 2 «rney distributed copies of the documents to all parties by letter dated June 7, 1995 and distributed copies to participants at the Board meeting on June 8, 1995. CDWA’s attorney additionally commented on the documents at the June 8, 1995 Board meeting. The members of the SWRCB pointed out at the Board meeting when they adopted Order WR 95-6 that none of them had any ex parte contacts regarding the Principles for Agreement. While CDWA’s attorney pointed out that a few documents related to the negotiations apparently were directed to the Chairman during the negotiations, the Chairman specifically pointed out at the Board meet- ing that he did not read the documents. Other Board members likewise pointed out that they were isolated from the negotiations on the Principles for Agreement. Finally, San Joaquin says that at the Board meeting for adoption of Order WR 95-6, one of its members requested a hearing on the impartiality of the SWRCB members and staff, and was denied. The request at the Board meeting was untimely. With diligence, San Joaquin’s member, CDWA, could have obtained all of the information on this subject before the Board’s hearing which commenced on April 18, 1995. CDWA could then have presented this material as evidence and have received a ruling based on the evidence. Also, only certain staff had contacts with the negotiations, and since there is no legal impediment to the staff having the limited contacts that they had, a App. 65 hearing on their involvement would not show any bias in the decisionmaking. 5.5 Allegations of Vagueness Lastly, San Joaquin suggests that it has been denied due process because of vagueness in Order WR 95-6. San Joaquin’s contention is based on SEWD’s apparent confu- sion during the hearing over the parameters of the change in points of diversion requested by DWR and USBR and the effects of the proposed change. The diffi- culties arose when expert witnesses explained the effects of the proposed change and variations of the change. Even though SEWD may have had difficulty understand- ing the evidence, the SWRCB, which is required to judge the evidence, has expertise in this area and understands both the request and the evidence that was provided. As a result of reviewing the evidence and the effects of the change, the SWRCB prepared a change which, while it is within the scope of the requested change, is considerably narrower. Based on the data and the analytical methods presented in the hearing, the SWRCB determined that the approved change could not adversely affect the environ- ment or harm other legal users of water. At the Board meeting, SEWD made further protestations of noncomprehension and now alleges confusion regard- ing the approved change stemming from comments at the Board meeting. Apparently SEWD’s confusion arose because the findings in Order WR 95-6 point out that the petition, if approved as filed, would have allowed an increase in export yield from the southern Delta. Because the petition could have allowed an increase in export App. 66 yield, the SWRCB only partially approved the petition, narrowing its approval to the point that there can be no increased yield as a result of Order WR 95-6. In fact, the change in point of diversion is simply a change in the language of Term 3 of D-1485 to update it to the current standards. This is in effect a denial of this part of the change petition. SEWD ignores this. At the Board meet- ing, SEWD asked for further explanation and the SWRCB’s staff explained again that the order would cause no change in water supply. The meaning of the DWR’s and the USBR’s request is no longer an issue. 6.0 ISSUE RAISED BY PORGANS Porgans alleges that the order is not supported by sub- stantial evidence, but he does not specify what part of the order lacks factual support. Nor does he specify the part or parts of Order WR 95-6 to which he objects. Because of its lack of specificity, Porgans’ petition is denied. Nev- ertheless, the following discussion is included in this order to clarify the order with respect to Porgans’ con- cerns. Porgans’ comments in Attachment B of his petition for reconsideration address effects on striped bass. The SWRCB assumes that Porgans is objecting to adverse effects he believes Order WR 95-6 will have on striped bass. Porgans’ concern apparently is based on Figures VIII-37 and 38 in the ER. The third and fourth bars in Figure VIII-38 show a lower striped bass population under the preferred alternative (580,000) than would occur if the SWRCB took no action to change D-1485 (620,000). This is the result of an error in preparing Figure App. 67 VIll-38. The third bar, showing the striped bass popula- tion if there were no action to change D-1485, should show 560,000 striped bass using the calculation method that was employed. This is consistent with the text and graphs, which together indicate that the preferred alter- native with a 1995 water supply demand level will pro- duce striped bass populations which are essentially the same as D-1485 with a 1995 water supply demand level. The method used for calculating the future change in striped bass population is the best method available to the SWRCB, but like all models this method cannot pre- dict the future population changes exactly. The calcula- tion methods are explained in the text on pages VIII-34 and 35. The ER is supported by the available evidence and sup- ports the changes in the water rights of the DWR and the USBR that were approved in Order WR 95-6. Porgans has not established any deficiency in the evidentiary support for Order WR 95-6. Apparently Porgans’ principal difficulty is with the com- parison of the preferred alternative to the 1984 through 1992 reference period. The ER compares modeled condi- tions under the p [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1651%3A1. Public record. Not legal advice.