CALIFORNIA WATER RESOURCESASSIGNMENT 07

The Restoration of Mono Lake and the San Joaquin River:Section 5937 of the Fish and Game Code

Rivers grow small. And splendid gardensshow what we did not see there before: crippled leaves and dust.

When for the first time I swam across the lakeit seemed immense, had I gone there these days

it would have been a shaving bowlbetween post-glacial rocks and junipers.

The forest near the village of Halina once was for me primevalsmelling of the last but recently killed bear,

though a ploughed field was visible through the pines.What was individual becomes a variety of a general pattern.

Consciousness even in my sleep changes primary colors.The features of my face melt like a wax doll in the fire.

And who can consent to see in the mirror the mere face of man?

Czeslaw Milosz, Selected Poems (1980)

Reading:

NRDC v. Patterson

Notes and Questions

1. As described in the last assignment, several environmental organizations, led by Califor-nia Trout and the Mono Lake Committee, filed suit under section 5937 of the California Fish and Game Code to require Los Angeles to release water from its dams into the tributaries of Mono Lake in order to support the trout fisheries of the streams. Section 5937 provides:

The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.

The plaintiffs brought this litigation against the State Water Resources Control Board, asking the court to issue a writ of mandate to compel the Board to rescind Los Angeles' licenses to appropriate water from the Mono Basin. The legal basis for the writ was Fish and Game Code section 5946, which prohibits the Board from granting a license to appropriate water in Mono and Inyo Counties after September 9, 1953, unless the license is "conditioned upon full compli-ance with Section 5937."

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Although the Board granted Los Angeles its licenses in 1974, the city constructed the dams on the Mono Lake tributary streams before the effective date of sections 5937 and 5946. For this reason, the Sacramento County Superior Court denied the writ of mandate. This deci-sion was reversed on appeal in California Trout, Inc. v. State Water Resources Control Board, 207 Cal. App. 3d 585 (3d Dist. 1989). The Court of Appeal held that the terms of section 5946 explicitly apply to the granting of licenses after September 9, 1953, even though the project for which the license is issued was constructed, and the permits on which the license is based were granted, before the effective date of the statute.

On remand, the trial court granted the Board's motion to delay compliance with Section 5946 until the Board has completed its review of the public trust claims in the Audubon litiga-tion. The Court of Appeal again reversed. In California Trout, Inc. v. Superior Court, 218 Cal. App. 3d 187 (1990), the Court of Appeal directed the Superior Court promptly to set interim flow standards for the four steams from which Los Angeles diverts water.

This time on remand, the case was transferred to the El Dorado Superior Court and as-signed to Judge Finney, who had recently completed the preliminary injunction hearings in the Audubon litigation. In October 1991, Judge Finney heard testimony on the flows needed to pro-tect the fisheries in Rush, Lee Vining, Parker, and Walker Creeks. On November 2, 1991, the Court entered a stipulated judgment establishing permanent minimum flows for the four streams in accordance with Fish and Game Code sections 5937 and 5946.

2. The California Trout litigation is interesting not only as an example of the Fish and Game Code provisions that protect stream flows below dams. In its first opinion in the case, the Court of Appeal also analyzed an important legal question—whether the Legislature may cate-gorically allocate water to instream uses or whether the courts must have final authority to decide whether the instream use complies with the constitutional requirement of reasonable use. Ac-cording to the Court:

The remaining argument advanced by L.A. Water and Power is that if section 5946 were construed as requiring a minimum instream flow preservation of fish it would be unconstitutional by virtue of California Constitution, article X, section 2. * * * L.A. Water and Power argues that the Legislature may not impose a categorical priority for one use of water because reasonableness of use requires comparison of contending alter-native uses which is an adjudicative question that cannot be constrained by a statutory rule. Indeed, L.A. Water and Power submits that use of minimal stream flows for preser-vation of fish in these circumstances is an unreasonable use in view of its need to use the water for domestic consumption. These arguments are unpersuasive. We find no preclu-sion in article X, section 2, of legislative power to make rules concerning what uses of water are reasonable, at least so long as those rules are not themselves unreasonable. We cannot say that section 5946 is unreasonable in requiring a minimal instream flow for preservation of fish in the areas it affects.

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We note at the outset that it is an open question whether the test of unreasonable use under article X, section 2 refers only to inordinate and wasteful use of water or ap-plies comparatively to preclude any use less than the optimum allocation of water. (See Audubon, supra, 33 Cal. 3d at p. 447, fn. 28.) Indeed, L.A. Water and Power was of the view in Audubon that a comparative application was inappropriate. (Ibid.) It apparently wished to rely on the Legislature's general rule in Water Code section 106, as between competing applications for appropriation of water, that use of water for domestic pur-poses is the highest use of water as establishing per se that such use is always a reason-able use. Yet here, it takes the opposite view concerning the comparative application of article X, section 2 and advances a legal theory that would sweep aside all legislative rules concerning reasonableness of water use. Setting aside these ironies, and assuming for the sake of argument that article X, section 2 applies comparatively, we find no ar-guable merit in the claim that section 5946 would conflict with that constitutional provi-sion because it calls for minimum instream flow for preservation of fish.

* * *

L.A. Water and Power relies on [Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 700-05,] for the assertion that the question of reasonableness cannot be constrained by statute. The last argument considered in Gin S. Chow was that the newly enacted constitutional amendment was fatally vague because the terms "reasonable" and "unreasonable" provided no adequate standards. The Supreme Court answered as fol-lows: "[W]hat is a useful and beneficial purpose and what is an unreasonable use is a ju-dicial question depending upon the facts in each case. Likewise, what is a reasonable or unreasonable use of water is a judicial question to be determined in the first instance by the trial court. There would seem to be no more difficulty in ascertaining what is a rea-sonable use of water than there is in determining probable cause, reasonable doubt, rea-sonable diligence, preponderance of evidence, a rate that is just and reasonable, public convenience and necessity, and numerous other problems which in their nature are not subject to precise definition but which tribunals exercising judicial functions must deter-mine." (217 Cal. at p. 706.)

L.A. Water and Power takes this as a rule that the question of reasonableness in-variably must be resolved ad hoc, adjudicatively, and there is no place for the legislative articulation of rules concerning reasonableness. That certainly is not the holding of Gin S. Chow, which did not consider such a question. The rule proffered is unsupported by apposite authority and insupportable in reason and legal doctrine.

All that the reasoning in Gin S. Chow connotes is that in the absence of an a pri-ori rule a court may ascertain whether a use of water is unreasonable from the facts and circumstances of particular cases. Hence, it is often asserted that "[w]hat constitutes a reasonable use or method of diversion is ordinarily a question of fact." (United States v. State Water Resources Control Board (1986) 182 Cal. App. 3d 82, 130, fn. 24.) Actu-ally, since what occurs is development of a standard of reasonableness on the facts of the case it should be described as a making of law for the particular case. (See Traynor, The Riddle of Harmless Error (1970) p. 71.) The typical example of such a process is case-by-case determination of the standard of reasonable care in the law of tort. However, the fact that, ordinarily, the standard of reasonableness is fixed ad hoc does not impel the

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view that the Legislature has no power to fashion rules concerning reasonableness, e.g., by enacting statutory safety obligations which become the basis of negligence per se.

* * *

Ordinarily, absent a plain constitutional mandate, a conflict in public policy be-tween the view of the judiciary and the Legislature must be resolved in favor of the latter. (See e.g., Gin S. Chow, supra, 217 Cal. at p. 698.) Where various alternative policy views reasonably might be held whether the use of water is reasonable within the mean-ing of article X, section 2, the view enacted by the Legislature is entitled to deference by the judiciary. An invitation to substitute the policy view of a court in this circumstance for a reasonable policy enacted in a statute is an invitation to return to the benighted days of substantive due process.

It is yet another irony that the claim to such authority is founded on article X, section 2, an amendment enacted to vest the "right" in the Legislature, over the judicial objection in Herminghaus, to determine the useful and beneficial purposes of water use. Article X, section 2, explicitly assigns to the Legislature the right and obligation to enact laws in furtherance of its policy. "This authorization discloses that the framers of article X, section 2, recognized that the promotion of its salutary policies would require granting the Legislature broad flexibility in determining the appropriate means for protecting scarce water resources." (In re Waters of Long Valley Creek Stream System (1979) 25 Cal. 3d 339, 351-352 fn. omitted.) That is to say, there is "broad legislative authority for the conservation and regulation of scarce water resources. . . ." (Id., at p. 352, fn. 6.) That authority is sufficient to authorize the Legislature to enact statutes which determine the reasonable uses of water. (See generally, Audubon, supra, 33 Cal. 3d at pp. 443 and 447-48, fn. 30.)

Of course, the Legislature's broad authority is not unlimited. If a statute sanc-tioned a manifestly unreasonable use of water, it would transgress the constitution. That is not the case here. The Legislature's policy choice of the values served by a rule forbid-ding the complete drying up of fishing streams in Inyo and Mono Counties in favor of the values served by permitting such conduct as a convenient, albeit not the only feasible, means of providing more water for L.A. Water and Power, is manifestly not unreason-able. Accordingly, we have no warrant to override the Legislature's rule in section 5946 concerning that balance.

California Trout, Inc. v. State Water Resources Control Board, 207 Cal. App. 3d 585, 622-25 (3d Dist. 1989).

3. This aspect of Cal Trout is relevant to other statutes in which the Legislature has declared particular types of uses to be reasonable and beneficial. For example, section 1010(a)(1) of the Water Code declares:

The cessation of, or reduction in, the use of water under any existing right regard-less of the basis of right, as the result of the use of recycled water, desalinated wa-ter, or water polluted by waste to a degree which unreasonably affects the water

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for other beneficial uses, is deemed equivalent to, and for purposes of maintaining any right shall be construed to constitute, a reasonable beneficial use of water to the extent and in the amount that the recycled, desalinated, or polluted water is be-ing used not exceeding, however, the amount of such reduction.

Similarly, section 1011(a)(1) provides:

When any person entitled to the use of water under an appropriative right fails to use all or any part of the water because of water conservation efforts, any cessa-tion or reduction in the use of the appropriated water shall be deemed equivalent to a reasonable beneficial use of water to the extent of the cessation or reduction in use. No forfeiture of the appropriative right to the water conserved shall occur upon the lapse of the forfeiture period applicable to water appropriated pursuant to the Water Commission Actor this code or the forfeiture period applicable to water appropriated prior to December 19, 1914.

The Legislature has made analogous pronouncements with respect to instream flows. For example, section 1243 of the Water Code states that “[t]he use of water for recreation and preser-vation and enhancement of fish and wildlife resources is a beneficial use of water.” And, the California Wild and Scenic Rivers Act, Cal. Pub. Res. Code § 5093.50, declares:

It is the policy of the State of California that certain rivers which possess extraor-dinary scenic, recreational, fishery, or wildlife values shall be preserved in their free-flowing state, together with their immediate environments, for the benefit and enjoyment of the people of the state. The Legislature declares that such use of these rivers is the highest and most beneficial use and is a reasonable and benefi-cial use of water within the meaning of Section 2 of Article X of the California Constitution.

According to Cal Trout, are the courts required to defer to these legislative determina-tions of reasonable and beneficial use in all cases?

4. Occasionally, an environmental controversy has a happy ending—in fact, as well as in law. The following article summarizes the state of Mono Lake seven years after Judge Finney’s final judgment:

Jane Kay, Mono Lake: It’s Rising and HealthyS.F. Chronicle, July 29, 2006

Thirty years ago, a dozen students from Stanford University, UC Davis and elsewhere camped at ancient Mono Lake for more than two months, conducting the first ecological survey of California's largest lake, which was dying as a result of massive water diversions to Los Ange-les. This month, the same group—now college professors, government scientists, an inventor, a physician and high school teachers, all in their early 50s—returned for a historic reunion at the

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million-year-old lake that once inspired Californians to slap "Save Mono Lake'' bumper stickers on their '70s vans. Today the lake is saved—rising and healthy.

The group's 1976 study of birds, insects, phytoplankton, salinity and hydrology has been recognized as the scientific underpinning of the California Supreme Court's 1983 ruling that the state must protect natural resources such as Mono Lake under the state Constitution's public trust doctrine. That decision ultimately saved the lake from the kind of water grab that in the 1920s turned Southern California's Owens Lake into a 110-square-mile salt flat. "Everything we did was later repeated with more rigor,'' said Jeff Burch, an engineer and inventor for Agilent Tech-nologies in Palo Alto, who came to the reunion at Mono Lake County Park. "But we pointed to the direction that policy needed to change or otherwise you'd have this train wreck, with the Mono Lake ecosystem collapsing.''

It had been 30 years since Burch saw Connie Lovejoy, then a UC Davis student and now a biology professor at LaVal University in Quebec City, Quebec. Back then, she was command-ing him to pull up algae samples as they teetered in a small boat rocking on the lake amid its fa-mous limestone towers. Lovejoy, with her college colleague Gayle Dana, now a hydrology pro-fessor at the Desert Research Institute in Reno, conducted the water chemistry and biology stud-ies of the lake. David Winkler, now a biology professor at Cornell University, hadn't seen Bob Loeffler since Winkler was counting birds in the sagebrush 30 years ago and Loeffler strode by on his way to complete calculations on groundwater levels around the Mono Lake Basin. Win-kler edited the final report of the 1976 research, for which he directed the bird study. Loeffler, then at Stanford and now director of the mining, land and water division in the Alaska Depart-ment of Natural Resources, measured groundwater, river flow and evaporation.

Two weeks ago, the group returned to celebrate saving the world wonder. They found a thriving 60-square-mile lake freshened by a record amount of winter and spring runoff from the tributary creeks. The lake is teeming with brine shrimp and alkali flies that feed the birds. Bright green native grasses grow right down to the lake, now large enough to cover the once-exposed lake bottom. The surging waters cover the old land bridges that had allowed coyotes to eat gull eggs and baby birds. Freshwater springs bubble up from the lake's bottom, growing a new crop of tufa crystals that will eventually form new underwater towers of calcium carbonate, a type of limestone.

The tributaries of Lee Vining and Rush creeks are gushing mountain streams filled with brown trout, and willows flourish on the edges along with the resurgence of Jeffrey pines. Sprout-ing up are buffalo berry bushes and Woods' roses, prized by the willow flycatcher. The songbird known as "the ivory-billed woodpecker of Mono Lake'' disappeared, then suddenly reappeared as waters returned to dry creeks.

The Dying Lake

For 35 years before the students arrived at Mono Lake, state and federal regulators had all but ignored the environmental fate of the lake, sister to Great Salt Lake. When the budding scien-tists showed up, the lake had dropped by 42 feet, lost half its volume of water and shrunk in sur-face size by nearly a third.

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The Los Angeles Department of Water and Power had been legally taking water since 1941 from four of the lake's tributary creeks. The water moved through an 11-mile tunnel to the upper Owens River and Lake Crowley, a reservoir that sends water through three hydroelectric power plants before the flow hits aqueducts aimed at faucets in Los Angeles. Because of those freshwater diversions, the lake—naturally a mix of table salt, baking soda, Epsom salt and a dose of lye—had become unnaturally saline. Instead of its natural 50 parts per thousand of salt, the lake contained 92 parts per thousand—about 2 1/2 times saltier than seawater. One-inch-long brine shrimp and alkali flies were reaching their salt-tolerance limits.

Survival of these creatures was crucial because they fed more than 80 species of migra-tory birds stopping at Mono Lake, including thousands of Wilson's and red-necked phalaropes and eared grebes. Snowy plovers and the state's largest breeding colony of California gulls were at risk.

Tributary creeks were dry. The lake's tufa towers looked like a boneyard as the limestone eroded. There were few fresh calcium-rich springs to bond to the carbonates in the water and build new tufas. And the lake was shrinking, leaving an alkali dust ring that caused unhealthy air pollution that filled the sky hundreds of miles away.

The ragtag group of science-minded friends of friends, later known as the Mono Basin Research Group, shared a love of the natural world, and they wanted to discover scientific ways to measure the lake's health and save it. They set up a camp on the principles of women's equal-ity, the health of organic foods and a philosophy of science for the people. "There was zero com-petition and an unbelievably positive and supportive atmosphere,'' recalled Jamie Grodsky, who periodically camped with the group and is now an environmental law professor at George Wash-ington University.

Bird expert Winkler, nicknamed "Wink,'' later persuaded the late David Gaines to found the Mono Lake Committee, which since 1978 has served as an advocate for the lake. The com-mittee would print the ubiquitous bumper stickers that spread the conservation word. In 1979, the National Audubon Society, the Mono Lake Committee and other groups sued Los Angeles, the first in a series of lawsuits that alleged the water diversions violated the public trust doctrine. Four years later, the state Supreme Court ruled that the state had an obligation to protect such places as Mono Lake "as far as feasible'' even if it meant reconsidering past allocations. Eleven years after that, the state Water Resources Control Board re-examined Los Angeles' water rights and set minimum stream flow requirements. The agency ordered 18 vertical feet of fresh water returned to the lake.

Los Angeles originally was prohibited from taking any water from the Mono Basin until the lake's level reached an elevation of 6,377 feet above sea level. Los Angeles today is allowed to take 16,500 acre-feet of water a year—or 16 percent of its original diversion, a restriction that will remain until the lake reaches an elevation of 6,392 feet.

The Saved Lake

Last week, the lake reached the 6,385-foot level. In eight more years, it's expected to rise 7 more feet to reach the target level. "It's only been 10 years, but you can see how it's all begin-ning to come back,'' said Geoffrey McQuilkin, co-executive director of the Mono Lake Commit-

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tee. The return of the endangered willow flycatchers that had been long gone from the Mono Basin is a great sign, he said. "That tells us we've gone from a dry wasteland to a recovering streamside forest,'' he said.

The once-diverted, now-restored creeks are supporting 49 species of breeding birds, ac-cording to PRBO Conservation Science, the nonprofit research group formerly known as Point Reyes Bird Observatory. That number is in addition to the 80 species of migrating and resident birds living off the alkali flies and brine shrimp in the lake. PRBO biologist Chris McCreedy spied the first willow flycatcher's nest in 2002.

As water filled the creeks, back came the shrubby vegetation, followed by the willow fly-catcher that nests there, said Sacha Heath, PRBO eastern Sierra program director. The yellow warbler also returned. But birds that nest in tree holes and on top branches—such as the Ameri-can kestrel and the mountain chickadee—are fewer because the trees haven't yet grown tall. "In 10 years, I'd expect we see an increase in the canopy and the cavity nesters,'' she said.

PRBO researchers have been watching the gulls as far back as 1983, the year of the state Supreme Court decision. The gulls make nests and lay eggs on three islands in Mono Lake. In the 1970s, the water level had sunk so low that bridges of land jutted above the surface of the lake, connecting the islands to the shore. Coyotes trotted onto the island and ate the gull eggs and the chicks. For several years, the gulls abandoned nests on black volcanic Negit Island, in the middle of the lake, then recolonized. The populations have grown steadily between 1999 and 2004. "The lake's up now, and there's not much chance of the coyotes getting out there,'' said Dave Shuford, a PRBO biologist. The colony has remained at about 45,000 gulls. But if the di-versions hadn't been cut, the numbers of gulls would be way down, he said.

As the lake rises and becomes less saline, the flies are expected to grow in numbers and provide food for even more birds. Dave Herbst, a member of the original core of a dozen in 1976, is now a UC Santa Barbara researcher based at the Sierra Nevada Aquatic Research Labo-ratory 30 miles south of Mono Lake. He continued to study the lake until his research funds dried up a couple of years ago. Thirty years ago, his lab studies showed that the flies would die if salinity kept increasing. Since then, he has published peer-reviewed experiments on the flies' re-sponse to changing habitat and salinity.

A higher lake has a greater area of shallows around the edges, places where larvae and pupae thrive because temperatures are warmer and algae is more abundant, Herbst found. As the water covers the tufas, they transform into habitat for aquatic life, "like the rocky headlands of the intertidal zone,'' he said, providing surfaces protected from wave action on which the algae and pupae can attach. And declining salinity favors growth of algae that feed the flies, helping them grow faster and larger, Herbst said.

Robert Jellison, also a research biologist at UC Santa Barbara who works out of the same Sierra Nevada lab as Herbst, has monitored Mono Lake for 24 years. "Mono Lake is one of the real success stories worldwide in saving the ecological and public trust values of a salt lake. Salt lakes throughout the world are desiccated, and Mono Lake is the exception,'' Jellison said.Water diversions have shrunk the Salton Sea, Nevada's Walker Lake and the Aral Sea in Uzbek-istan and Kazakhstan.

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Ironically, under the 1994 state water-diversion order, Mono Lake will never reach its cli-matic equilibrium or natural size. Once the lake fills to the target elevation, Los Angeles can in-crease its diversions as long as the lake doesn't fall below the elevation. Ultimately, it lost 45 feet. It's only getting about 18 feet back.

Starting the Study

The work behind the recovery happened much by happenstance, all set in motion by a high school science teacher, Fred Savage, now in his 43rd year of teaching in the Orlando, Fla., area. Savage received notice of a National Science Foundation grant program for original student research and promptly tossed it. Later, he reconsidered, pulled it from the wastebasket and sent it to Burch and his brother, Elliot, then a UC Santa Cruz student. Jeff Burch immediately thought of Winkler, a UC Davis student Burch had met while counting birds at the Farallon Islands. They had talked about doing a project together. The grant possibility opened the way.

Burch also recalled passionate urgings for a Mono Lake study from biologist Gaines, the founder of the Mono Lake Committee. Burch and Winkler decided to seek the Mono Lake grant and won it. At the reunion, David DeSanti, a former Stanford teacher of several members of the group, praised Gaines as "an amazing person'' who feared for the "loss of the glory of Mono Lake.'' Gaines died in a car crash in 1988.

DeSanti, now director of the Institute for Bird Populations in Point Reyes Station, said: "These strong young minds, who were really in love with the Earth, were stimulated by David Gaines and maybe to change some course of events.'' Herbst recalled the summer as "one of those moments from where you can trace the change in your life.'' "We were all pretty green. We had to rely on our classroom information and intuition,'' said Herbst. "We discovered what it was like to be a scientist, to find our own way.''

The lake also changed. Now just swimming in the lake demonstrates the difference over three decades, Jeff Burch said. "The fresh water lies on top of the lake water. You feel six inches of icy cold Sierra snowmelt at the chest. Below it's warm. The underwater tufas are really com-ing back to life. Every tufa tower is bubbling and burping as fresh water is coming in. "It was all worth it.''

5. While it was engaged in the Mono Lake litigation, Los Angeles also had to defend its ap-propriation of surface and ground water from the Owens Valley. The following newspaper arti-cles describe this controversy, which has been fought over water rights, water pollution, and air quality:

Daniel B. Wood, Los Angeles Changes Water Policy, Christian Science Monitor, Sept. 5, 1991

Hydrologist Randy Jackson exits his dust-covered Jeep near a remote chain-link fence here. While a mammoth pump locked inside the fence disgorges groundwater into an adjacent channel—water headed for kitchens and swimming pools 250 miles south in Los Angeles—Mr. Jackson straps a computer device to extruding pipes. An ultrasonic gauge tells him how much water is being sucked from the ground and at what speed. This simple new procedure is being

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heralded as a historic turning point in the long, confrontational water-wars of the drought-scorched West. "This is an outstanding scientific solution to something that is going to be a long-range problem throughout the West and the world for many years to come," says Bishop Mayor Jane Fisher.

For 75 years, this tiny town in the heart of the 100-mile-long Owens Valley has watched its streams and farmland leeched dry to support the growth of the nation's second-largest metrop-olis. But after 20 years of litigation, Los Angeles has agreed to limit the water it takes from the valley in accord with closely-monitored environmental constraints. "For the first time," says Greg James, director of the Inyo County Water Department (ICWD), "a major, urban area which has gone out and taken a resource from a much poorer, less politically potent area . . . has finally decided to manage the way they take that water (other than) solely on the needs of the city alone."

Several observers note that the water-management arrangement is already serving as a model for unfolding water disputes in cities such as Reno and Las Vegas, Nevada; Phoenix, Ari-zona; and El Paso, Texas. Localities in Colorado, New York, and Japan face similar disputes. "We are the pioneering element that everyone is watching closely," says ICWD's Paula Villa. "There are so many large and growing cities that can benefit from our model."

A long battle

The history of the Owens Valley water dispute is legend across the West. Using legal but questionable means, Los Angeles officials bought up most of the land here in the early 1900s and diverted the water into a city aqueduct. After a second aqueduct was opened during the 1970s, surface and groundwater levels were so depleted that valley residents feared the vast basin would become a permanent dust bowl. Two decades of court battles began in 1972, when Inyo County officials sued Los Angeles in accordance with the California Environmental Quality Act. Wary of further, costly court battles with uncertain outcomes, officials from both communities worked out the new agreement two years ago.

The plan is set to be formalized into law in coming months, after state courts rule on the legitimacy of an environmental impact document. "For 60 years LADWP (Los Angeles Depart-ment of Water and Power) ruled with the ham-handed efficiency of the Soviet Union," says Anto-nio Rossman, counsel to Inyo County. New L.A. water board appointments by an environmen-tally conscious Mayor Tom Bradley have eased the situation, Mr. Rossman says. So has the need for L.A. officials to salvage their own image after five years of drought. "Searching for new wa-ter sources across the West in time of drought, they can't afford the image they [once] presented in the Owens Valley," says Rossman.

While keeping a reliable supply of water for export to Los Angeles, the plan's goal is to limit future environmental change in the valley and mitigate damage already done. Planners have divided the valley into management areas and sub zones with monitoring sites for various kinds of wildlife and vegetation. There are provisions for the automatic turn off of wells if such moni-toring indicates adverse impacts from pumping. Several "enhancement/mitigation" sites will re-sult in irrigation and re-greening—most notably a 60-mile re-watering of a dry river bed. "Nowhere in the West can you find a project of this magnitude," says David Groeneveld, the

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ecologist who will head the Lower Owens River program. "The pattern has been to de-water such areas, (whereas) these 60 miles will be put back."

Though the agreement is not yet law, it has already suspended years of enmity and charges of paternalism. Both sides anticipate benefits from more sensitive water management. "This is historic in that two warring parties have been able to compromise out of the courts," says LADWP's Gerald Gewe, engineer of water resources planning. "Traditionally in California, all water rights issues have been decided in litigation." Whereas "before the relationship was adver-sarial, we are now equal partners," says Jackson.

Watching the pumps

The hydrologist's ultra-sound device is a means of ensuring that LADWP is indeed taking only what it says it is. The amount to be taken is decided jointly by committee each March. For the rest of the year, night or day, Jackson and others may monitor any of 96 pump sites across the valley—without permission of LADWP. By shutting off pumps in one locale, officials have raised the groundwater table two feet. "To be actually in a recovery during drought has never happened in California," says Jackson.

Though a solid core of town officials and outside environmental organizations are behind the new agreement, a vocal minority of locals is not. "If the people of Inyo County could vote against it, they would," says Don Marcelin, a 65-year resident and retiree. He says the water is sold too cheaply—a fraction of what LADWP must pay for water from northern California or Colorado. But others feel the agreement has set the stage for more that can benefit the Owens Valley. Last spring, for instance, LADWP agreed to restore some of the flow of the upper Owens River in neighboring Mono County. That "would not have happened without our agreement," says Ms. Villa of ICWD.

Todd S. Purdum, This Time, Los Angeles May Lose Water War, N.Y. Times, June 15, 1998

"It's not that you can't breathe," said Mark McCall, with gallows humor befitting a pre-maturely grizzled 49-year-old resident of this dusty village in the Owens Valley. "You just don't want to." Mr. McCall's backyard abuts the dry bed of Owens Lake, a crusty lunar landscape of brackish pools and flaky salts and toxins that is the worst source of airborne pollution in the United States. The parched patch of 110 square miles is all that is left in the center of a once-fer-tile farming and mining community. Even the talc mill where Mr. McCall once worked is closed, and he is unemployed.

There is no mystery about where the water went: For 85 years, gravity has pulled it through a 223-mile man-made aqueduct to build and sustain the artificially verdant sprawl of Los Angeles, and today it still supplies just over half the water for the nation's second-largest city. But for the first time in the longest-running water war in the West, Los Angeles, under intense pressure from state and Federal regulators, may be forced to put some of the water back to help control dust storms that can carry 20 times the particle pollution allowed by Federal law. That

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would be a precedent-shattering concession of complicity in one of the most celebrated water grabs of all time.

"We think that this is sort of David and Goliath meets 'Chinatown,'" said Ellen Harde-beck, air pollution control officer of the Great Basin Unified Air Pollution Control District, the state-chartered agency here that last year ordered Los Angeles to cover about one-third of the lake bed, partly with water, partly with four inches of gravel, and partly with vegetation, in an effort to hold down the dust. In fact, the struggle is the stuff of legend, and Ms. Hardebeck was referring to the classic 1974 movie. "Chinatown" was inspired by the stealthy—though legal—efforts of Los Angeles city fathers to buy up land and water rights here early in the century so the city could expand into land that they were buying outside Los Angeles. When William Mulholland, the vi-sionary Los Angeles water czar who saw the potential of the Owens River's mountain runoff, of-ficially opened the Los Angeles Aqueduct in 1913, he watched the water gush down into the San Fernando Valley, then on the far northern outskirts of his fledgling city, and proclaimed in what remain fighting words here to this day: "There it is. Take it."

By the mid-1920's, Los Angeles was taking so much water that the lake dried up, and the city has resisted giving the water back. In December, it offered a counterproposal to do less than half of what the Owens Valley wants, and when officials here rejected that, the city appealed to the state Air Resources Board, which has the final say because the state owns the lake bed. The board took no action at its meeting last month and gave negotiators for the valley and city until the next board meeting, on June 25, to try to reach a compromise. If a state-approved plan is not in place by fall 1999, the Federal Environmental Protection Agency has vowed to impose its own plan for bringing pollution within acceptable levels. "Clearly, we have a responsibility to deal with the problem," said Gerald Gewe, executive assistant to the director of water services for the Los Angeles Department of Water and Power. "But it's not a problem that was created overnight or that's going to be solved overnight."

Officials from both sides spent the end of this week in secret negotiations, and the out-come is hard to predict. But their last public positions were far apart, and the staff of the State Air Resources Board has recommended a ruling in favor of Los Angeles. "The staff did not feel that Great Basin's modeling work in tests for the plan was really sufficient," said Allan Hirsch, a board spokesman. The staff members questioned whether there was enough proof that the plan would reduce pollution.

The basic problem is not in dispute. On most days, the air here is splendidly clear, with breathtaking views across the valley to Mount Whitney, at 14,496 feet the highest point in the contiguous 48 states, and in summer, the lake bed is as hard and dry as concrete. But on some two dozen days a year, mostly in spring and fall, residual moisture makes the lake's crust churn into crystals that become a whirlwind—of fine clay particles, salts, arsenic and other substances deposited over geologic time—covering cars, seeping through windows and threatening the lungs of perhaps 40,000 area residents. The rough grass that fills Mr. McCall's yard is so sharp, he said, "it's like razor wire."

The trouble has come in agreeing on a solution. A 1983 law requires Los Angeles to take "reasonable" measures, but city and valley officials have distinctly different views of what that means. In its order, Great Basin proposed treating the worst 35 square miles of the lake with the

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mix of gravel, vegetation and water, which it estimated would take 50,000 acre-feet of water a year, or about 15 percent of what the city takes from the valley each year.

After six months of negotiations, Los Angeles countered last December with an offer to work on 9 square miles, requiring about 20,000 acre-feet of water, with a promise to assess its progress and make adjustments after three years. The city says the valley's proposal would cost it $58 million a year to replace Owens Valley water from other sources, probably the Sacramento Delta in the north, and to finance operations at the lake, along with $25 million annual debt ser-vice on the capital improvements that would be needed to put the plan in place.

Mr. Gewe of the Los Angeles water agency said that would mean a total cost of $75 mil-lion to $80 million a year out of the agency's overall revenues of about $400 million, and he warned that such increases would have to be passed on to customers in Los Angeles. "That's a pretty significant hit," Mr. Gewe said. "But my concern is that it has not been demonstrated that these measures will work, and then we've got to spend even more money trying to find a solu-tion."

Great Basin officials here contend that they are proposing simple measures, ones that mimic natural geologic processes. They say they have tested and rejected everything from spray-ing chemicals (environmentally unsound) to rigging sprinklers (the dust clogs them) to building low walls of sand as windbreaks (wind patterns are hard to predict). "We've tested a lot of things out there, and some of them were pretty pie in the sky," said Theodore Schade, the engineer who is the Owens Lake project manager for Great Basin. "The lake has been dry since the mid-20's, and in that time, there are some limited areas that are starting to repair themselves, and generally by the mechanisms we're proposing, through some natural revegetation over time, for example."

Mr. Schade acknowledged that the sheer scale of the problem made it daunting. "It's the size and the money," he said. "If this was somebody's vacant lot, they would just go out and fix it." Mr. Gewe, the Los Angeles official, suggests one possible area of compromise by noting that substantial nondrinkable groundwater may be percolating below the lake and could be pumped up to help carry out some of the valley's proposed solutions. "We want to go forward in a phased ap-proach that doesn't write a blank check," he said. But Ms. Hardebeck of Great Basin is impatient with such talk. "The district and the city have been jointly studying this problem since 1979, so when they say, 'We don't know enough,' or 'We need to study some more,' how long is long enough?"

Residents here remain skeptical that big changes will come. After all, even their ances-tors' early efforts to dynamite the aqueduct could not keep the water from flowing away to serve a city of millions. "That lake has been dry for almost 100 years," said Geizel Rice, the postmaster in Keeler, where the roadside sign says the population is 50 but she says it is actually a bit more. "Do you think they're going to really put it back? I don't think they ever will. I think it's too late."

Marla Cone, Accord Ends Bitter Owens Valley Dispute: But Will Dust Settle? L.A. Times, Aug. 18, 1999

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It is by all accounts an uneasy alliance. But this morning, standing together on a barren lake bed, leaders from the Owens Valley and Los Angeles will celebrate the signing of a historic plan to end giant dust storms that have plagued the valley for most of the century. After decades of conflict, today's scheduled signing by a top official of the federal Environmental Protection Agency marks passage of the final hurdle for the Owens Lake recovery plan.

The plan is expected to cost Los Angeles more than $100 million and use large quantities of water. The first phase will start in 2001, when 10 square miles of the lake bed will be flooded with several inches of water. Under the plan, Los Angeles has promised to do whatever it takes by 2006 to control the dust storms that have plagued people near the lake.

Its river diverted by a Los Angeles-bound aqueduct built in 1913, Owens Lake has sent immense, whirling clouds of fine dust into Inyo County and Ridgecrest on windy days for about 70 years. A single windstorm can whip up 11 tons of salty crust tainted with arsenic, cadmium and other toxic compounds. The storms cause asthma attacks and other respiratory problems and endanger about 40,000 people, including the Bishop Indian Tribes and military personnel and families at the China Lake Naval Air Station.

Where all the water will come from remains unresolved: The Los Angeles Department of Water and Power hopes to persuade Inyo County officials to give up some local ground water so the city won't have to divert water from its aqueduct. That issue remains a major point of con-tention between the Owens Valley and Los Angeles, which have waged a bitter battle over water rights for the past century.

The DWP and the Great Basin air pollution agency struggled for almost two decades to come up with a dust-control plan. “This is the final step,” said Ellen Hardebeck, air pollution control officer for the Great Basin Unified Air Pollution Control District. “We're satisfied with the agreement and we're hopeful that this will all work out. But we're not complacent, either.” DWP project manager Pete Westdal called the final plan “a very large step forward in what has been a very long process.” He said the DWP will pick a contractor by July, and construction of the shallow-flooding system will begin late next year.

Los Angeles has made "a clear commitment" that will ensure that the Owens Valley, which suffers the worst particle pollution in the nation, finally has healthful air, said EPA re-gional administrator Felicia Marcus. Marcus called the long-running Owens Lake battle a classic David versus Goliath struggle, saying the "real heroes" are officials of the tiny Great Basin pollu-tion agency who took on Los Angeles to protect Owens Valley residents from the dangerous, lung-clogging dust. "The thing that's exciting is that L.A. is finally doing the right thing," Marcus said. "Before, they were just trying to see what they could get away with. L.A. has now taken re-sponsibility, showing that it's a mature city, not just a bunch of whiners."

Not everyone is so bullish on the deal. Leaders of the Lone Pine Shoshone-Paiute Tribe considered suing to block the plan because they fear it is not aggressive enough in guaranteeing clean air for the region. "It's a celebration in the sense that we have a federally enforced order, but it doesn't mean we like the order all that well," said Dorothy Alther, an attorney with Califor-nia Indian Legal Services. "This isn't over yet, not by a longshot," she added.

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Flowing fresh from the Sierra Nevada, water from the Owens Valley is worth hundreds of millions of dollars to thirsty, arid Los Angeles. The city has fought vigorously to retain all of it. Over the years, however, the city has been forced under environmental laws to return water to Mono Lake, the Owens River and now, Owens Lake.

The project is considered a compromise. Originally, the Great Basin agency sought a plan that would have forced the city to restore 35 square miles of the lake in 2001. Los Angeles offi-cials said that plan was exorbitant and a violation of the city's water rights, and they threatened a lawsuit. According to those familiar with negotiations over the plan, the situation changed after S. David Freeman was hired as general manager of the DWP and decided that the agency should comply with the Clean Air Act rather than fight in court. The state's Air Resources Board also pushed both sides to negotiate a compromise, which was reached a year ago.

Under the terms of the agreement, the DWP must cover 10 square miles of the dry lake with water, gravel or vegetation by the end of 2001, then another 3.5 square miles in 2002 and three more square miles in 2003. A new plan will be developed in 2003, but in case more conflict erupts, the city has already agreed to keep treating two square miles a year until enough dust is eliminated to meet federal health standards.

Hardebeck said the DWP and the Owens Valley pollution agency now have a "grudging respect for each other. I think we can reestablish a peaceful relationship at least until 2003." Westdal said the DWP hopes to use vegetation to control dust on some sections of the lake be-cause that will use less water than flooding. The DWP also will experiment with fences. The ini-tial 10 square miles will be flooded, however, because vegetation takes too long to grow. The flooding will use about 25,000 acre-feet of water every year—enough to serve 50,000 house-holds. The entire project may take 40,000 acre-feet a year in perpetuity. An experimental project will flood one square mile perhaps in a few months, as soon as various permits are approved, Westdal said. Freeman has said the cost can probably be absorbed in current water rates.

Louis Sahagun, DWP Told to Restore Part of RiverL.A. Times, July 26, 2005

 A frustrated judge ordered Los Angeles water officials Monday to restore portions of a

once vibrant Inyo County river, or be barred from using an aqueduct that transports millions of gallons of water to Southern California each day. To compel the Los Angeles Department of Wa-ter and Power to act, Inyo County Superior Court Judge Lee E. Cooper imposed fines and limited the amount of water the agency can pump in the Owens Valley. The fines could reach millions of dollars, and the limits on pumping will force the agency to buy water elsewhere. DWP officials acknowledged that Monday's action will mean higher water rates, though it is impossible to pre-dict by how much.

Cooper imposed fines of $5,000 a day until the agency completes the long-delayed plan to restore a 62-mile stretch of the Lower Owens River. The fines will begin accruing Sept. 5. "No excuses will be accepted," Cooper said during a two-hour court hearing in Independence. Cooper said failure to abide by his ruling would result in a permanent ban against using the so-called Sec-ond Los Angeles Aqueduct, an $89-million facility that has been exporting water for domestic use in Los Angeles since 1970.

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The Lower Owens River Project was conceived in 1991 to mitigate excessive groundwa-ter pumping by the DWP that had destroyed 100 acres of habitat in the Owens Valley from 1970 to 1990. In a legal agreement, the DWP agreed in 1997 to create and sustain healthy and diverse habitat for fish, waterfowl and shorebirds, as well as stands of cottonwood and willows, by mid-2003. The failure of the DWP to meet that deadline is the latest in a series of delays by the agency in the Owens Valley, Cooper said. "DWP has been in violation of the California Environ-mental Quality Act since 1973; they are still in violation," Cooper said. "It's been more than 30 years. That's incredible."

In a prepared statement, DWP General Manager Ronald F. Deaton said his agency "will fully cooperate with today's ruling" and move forward with the river restoration project "as quickly as possible." Deaton said the court-ordered limits on groundwater pumping would have to be offset by purchases of water from the Metropolitan Water District, the principal water wholesaler for Southern California. Those costs will have to be passed on to consumers. Tom Erb, DWP director of water resources, said agency officials "are still trying to evaluate how much water we will have to make up for next year."

Cooper also ordered the agency to limit groundwater pumping in the Owens Valley to about 57,412 acre-feet annually — about 60% of what the agency planned to pump this year. In addition, the DWP will have to recharge the Owens Valley aquifer each year. The $5,000-a-day fines will continue until water is flowing in the river at a rate of 40 cubic feet a second. "This rul-ing is a huge hammer hanging over Los Angeles' head," said Don Mooney, an attorney involved with the lawsuit, which was brought two years ago by the California Department of Fish and Game, California State Lands Commission, Sierra Club and Owens Valley Committee.

The lawsuit accused the DWP of deliberately missing deadlines for implementing the river project, which would cost about $39 million to launch. The project — the largest river restoration effort ever attempted — is more than two years behind schedule. "America is getting a river — and a precedent," said Carla Schneidlinger, president of the Owens Valley Committee, a group dedicated to preserving the river. "Functioning river systems are becoming increasingly endangered throughout the American West as water is diverted for agriculture and cities," she said. "Right now, the Lower Owens is a ghost of what it once was."

The river was reduced to a trickle in 1913 when the Owens River Aqueduct began deliv-ering water to Los Angeles. The Second Los Angeles Aqueduct opened in 1970. Beginning just south of the Owens dry lakebed, and ending 200 miles to the south in the San Fernando Valley, it added 50% more capacity to the water system. The two Los Angeles aqueducts deliver about 430 million gallons a day to the city. Historically, about 70% of the city's water comes from the east-ern Sierra, the DWP said. Wells in the San Fernando Valley and other local groundwater basins supply 15%, and purchases from the Metropolitan Water District furnish 15%. The DWP's pledge to restore the river was followed by postponements due to circumstances that DWP offi-cials insisted were beyond their control.

Critics called the delays part of a legal tactic aimed at saving water and money for the city. "The city has missed at least 13 deadlines over the past five years," Mooney said. On Mon-day, Cooper ordered the appointment of a special water master to monitor DWP's compliance, and report to his court monthly. "I'm hoping this water fight is over, but you never know," said

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botanist and Sierra Club activist Mark Bagley. "By some calculations, the groundwater pumping reductions and penalties ordered by the judge are still going to leave the city with a net financial gain from their delays."

Randall C. Archibald, A Century Later, Los Angeles Atones for Water SinsN.Y. Times, Jan. 1, 2007

It may fall short of a feel-good sequel to “Chinatown,” the movie based on the notorious, somewhat shady water grab by Los Angeles that allowed the city to bloom from a semi-arid desert. But in one of the largest river restoration efforts in the West, water is again flowing along a 62-mile stretch of the Owens River after a dry spell of nearly a century.

That part of the river had been left mostly drained when upstream water, fed by snowmelt from the towering Sierra Nevada, was channeled 233 miles south to fill swimming pools and bathtubs throughout Los Angeles. The restored flow is among several long-awaited steps the city is taking to help make amends for the environmental consequences of its water maneuvering, most notably the drying up of Owens Lake, an area more than three times the size of Manhattan, here in the Owens Valley. Los Angeles agreed in December to expand efforts to control toxic dust storms that erupt from what is left of the lake, a 110-square-mile body that emptied when the river was diverted to Los Angeles through an aqueduct opened in 1913.

The lake’s salty, mineral-laced basin has been the largest single source of particulate pol-lution in the country. It looks so otherworldly that it doubled as a desolate planet in the movie “Star Trek V: The Final Frontier.”

To restore the river, Los Angeles built automated gates at the point where the river veers into the aqueduct. The gates steer some water into the original riverbed, setting the stage for the growth of cottonwood trees and other plants and the return of waterfowl and other animals. Much of the water eventually returns to the aqueduct, though some of it is being used for lake ir-rigation and other projects. Environmentalists here say they are keeping an eye on Los Angeles for backsliding, but they acknowledge that the new efforts will make a significant difference.

As winds whipped across Owens Lake on a recent afternoon, Mike Prather of the Owens Valley Committee, which along with the Sierra Club took Los Angeles to court over the environ-mental fallout of its water policies, marveled at sandpipers, American avocets and other birds frolicking in the shallow pools created by the irrigation. “This work will bring back more and more of them,” Mr. Prather said, savoring the twist in the battle that means water once intended for Los Angeles will feed the lake. “It’s Owens Valley’s turn to stick its straw in L.A.’s water,” he said.

Court rulings and the threat of legal action have largely forced Los Angeles’s hand in dealing with its past water moves, but city leaders say they are also intent on doing the right thing in keeping up a vital source of water while avoiding further damage to the Owens Valley. H. David Nahai, president of the board that oversees the Los Angeles Department of Water and Power, said Los Angeles was looking for less adversarial ways to resolve differences over the valley, which provides 40 percent to 60 percent of the city’s water supply, depending on the snowfall in the mountains. “We can’t change the past, but we can shape the future,” said Mr. Na-

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hai, one of five board members appointed by Mayor Antonio R. Villaraigosa, who promised a friendlier approach to the valley when he took office in July 2005.

Susan Cash, the chairwoman of the Board of Supervisors of Inyo County, where the Owens Valley is located, said animosity toward Los Angeles had lessened since the early 20th century, when the water diversion was made possible by the purchase of much of the valley by less-than-forthcoming city operatives. The underhanded moves, as chronicled by historians, in-cluded city representatives posing as ranchers as they bought up property. The questionable land dealing provided the inspiration for “Chinatown,” the 1974 movie starring Jack Nicholson as a private detective who stumbles across corruption on a Los Angeles water project.

Water from the valley made possible the growth of what became the nation’s second-largest city. But people in the valley have long regarded the water dealings as a double-edged sword. Officials here have argued that the water diversion undercut the potential for growth. But others say that such prospects were dim anyway in such a dry and remote valley, and that Los Angeles’s keeping the water clean and the land relatively untouched has been a boon.

Los Angeles’s policy of allowing public access to much of its land and the fact that many people here have worked for the Los Angeles Department of Water and Power, one of the val-ley’s largest employers, or have friends or relatives there, have contributed to improved relations. The godfathers of Ms. Cash’s children worked for the department. “The fact is,” she said, “we are in a marriage with no annulment in the near future, so we have to find a way to work to-gether.”

Inyo officials said the city’s projects could inspire more tourism, the only real economic activity in this dry, high-desert valley. “We have recreational users now but not to the extent it can be once the river is flowing and there is sufficient water for fish and wildlife,” said Arlene Grider, president of the chamber of commerce here.

The long-promised river restoration is a $24 million project, compensation won from a lawsuit by environmental groups over excessive groundwater pumping. It came after delays that prompted a county judge in September 2005 to impose daily fines of $5,000 on Los Angeles. The penalty has so far cost the city $2.3 million and will continue until a large volume of water flows through the river in the coming months.

The work on the lake, scheduled to be completed by 2010, will irrigate or otherwise con-trol dust over 43 square miles. The improvements result from an agreement the city signed with the local air pollution control regulator in 1998 that sets a timetable to comply with federal re-quirements to control dust on the lake. The city has spent $400 million on dust control for just under 30 square miles of the worst pockets, and in December, through a mediator, it agreed to do 12.7 more square miles by 2010 at a cost of $105 million. A water department spokeswoman in Los Angeles, Carol Tucker, said ratepayers would see relatively modest increases in their monthly bills; the river restoration, for example, would amount to an increase of about 26 cents.

Los Angeles has one of the country’s more intensive conservation programs, allowing it to use roughly the same amount of water even as it has grown by 750,000 residents in the past two decades. But environmentalists say they doubt the city can grow much more without finding more water. Mr. Nahai said the Department of Water and Power was already studying other pos-

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sibilities, like using groundwater from within Los Angeles, buying water from other places and desalinating ocean water. But one thing is certain, he said: “Are we going to get to a place where we are going to pump all the water out? No.”

Still, most everyone suggests there could be rough going ahead. Ms. Cash, the Inyo County supervisor, said officials were only “cautiously optimistic” about a changed relationship with Los Angeles because they had heard nice words from the city before, only to end up in court. Mr. Nahai acknowledged that the litigious nature of the relationship would be difficult to break. “Nobody can guarantee there won’t be litigation in the future, and litigation has its uses,” he said. “There is no denying what the City of Los Angeles has done far too often has been because of court order.” He added, “It’s like what Mark Twain said: ‘Whiskey is for drinking, and water is for fighting over.’”

6. Section 5937 also has become an important feature of litigation brought by the Natural Resources Defense Council and other fishing and environmental organizations to require the United States Bureau of Reclamation to restore flows to the San Joaquin River below Friant Dam. The plaintiffs claim that section 5937 compels the Bureau to release water from the dam to support salmon and other fish in the San Joaquin River.

7. In Natural Resources Defense Council v. Houston, 146 F.3d 1118 (9th Cir. 1998), the Ninth Circuit held that the Bureau of Reclamation violated section 7 of the Endangered Species Act when it failed to consult with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service before it entered into long-term contract renewals for water service with con-tractors in the Friant Water Users Association, which receive their water from the San Joaquin River. The Court of Appeals also ruled that federal law does not categorically preempt the appli-cation of section 5937 to the Friant Unit of the Central Valley Project. The Court remanded the case to the District Court for trial on the plaintiffs’ ESA and section 5937 claims.

8. Do you agree with Judge Karlton that the application of section 5937 to require restora-tion of flows in the San Joaquin River below Friant Dam would not be inconsistent with either the authorizing legislation for the Friant Unit of the CVP or the Central Valley Project Improve-ment Act of 1992?

9. Are there limits to the authority of the court acting under state law to require the United States to release water from Friant Dam? For example, could Judge Karlton order the Bureau of Reclamation to bypass 50 percent of the flow of the San Joaquin River? What if such releases cause chronic shortages of water among the Friant Unit contractors? Is it appropriate to allow state laws such as section 5937 to govern the United States’ operation of the federal reclamation system?

10. In a later decision, Judge Karlton concluded that the biological opinions issued by the National Marine Fisheries Service and the Fish and Wildlife Service for the Bureau of Reclama-tion’s renewal of the water service contracts for the Friant Unit violated the consultation require-ments of section 7 of the Endangered Species Act. Natural Resources Defense Council v. Rodgers, 381 F. Supp. 2d 1212 (E.D. Cal. 2005). NRDC, the United States, and the Friant Water

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Users Association subsequently announced the terms of the final settlement agreement for restoration of the San Joaquin River:

Bettina Boxall, Settlement Will Provide Water for Parched RiverL.A. Times, Aug. 20, 2006

"Remember this, water is California's most valuable possession—we need every drop that falls on the mountains and on the plains." The speaker was Gov. Earl Warren. The year was 1949. The occasion was the opening of two giant valves at the base of Friant Dam, for the first time sending the cold, Sierra-fed waters of the San Joaquin River pouring into an irrigation canal big enough to float a destroyer. 

In few places in California was Warren's mandate taken to heart as conscientiously as at Friant, northeast of Fresno. By the time the 151-mile canal running to Bakersfield, the Friant-Kern, was inaugurated two years after Warren's speech with a fly-over of 100 planes and flotilla of bathing beauties in cruising power boats, one of California's greatest rivers was in its death throes, swallowed virtually whole by the nation's biggest irrigation project. About 60 miles of the San Joaquin, the state's second-longest river, shriveled to dust as its mountain waters were rerouted to a million acres of farmland up and down the arid eastern flanks of the San Joaquin Valley. A chinook salmon run of tens of thousands was wiped out. The lower stretch of the San Joaquin filled with runoff and farm drain water so tainted that it came to be known as the "lower colon of California."

Now, thanks to a settlement in a tortured, nearly two-decade-long court fight, the San Joaquin is about to get some of its water back. The agreement, in the final stages of approval, is designed to resurrect the salmon run and return year-round flows to the river for the first time since Harry Truman was president. "The San Joaquin was just killed," said Harrison "Hap" Dun-ning, a UC Davis emeritus law professor and authority on water law. "It's a monumental restora-tion."

It has not come easily. Kole Upton is a 63-year-old Chowchilla grower with a sharp sense of humor, an engineering degree from Stanford, and 1,200 acres of cotton, corn, almonds and wheat that would wither without water from the San Joaquin. He has been one of the leaders in years of off-and-on settlement negotiations involving growers, environmentalists and the fed-eral government, which operates the dam. He says he takes a lot of grief for dealing with envi-ronmentalists. Other growers tell him: "You're selling us out." But he said he thought there was no choice but to deal, and ultimately settle, after a series of unfavorable court decisions in a 1988 environmental lawsuit made it clear that if the growers didn't help decide how much water to put back in the river, a federal judge would do it for them. "We've been through this for 18 years," he said. "We spent a lot of money. We delayed as long as we could."

Everywhere Upton drove that morning there was water from the San Joaquin. It bubbled up like a clear spring from underground irrigation pipes at the edge of a field of waist-high cotton plants dotted with white and pink blossoms. It glistened in the sun as it flowed down long, neat furrows. It dropped into a large concrete culvert at 1,600 gallons a minute, pumped from lateral No. 2, a feeder canal that runs from the 35-mile-long Madera Canal that snakes north from the dam. The pumping would continue round the clock for two days to draw enough water to irrigate

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one 80-acre cotton field. Twenty-four hours earlier the water had been in Millerton Lake, the 15-mile-long reservoir that backs up behind Friant.

Beyond Upton's fields, on the distant horizon, rose the hazy outlines of the Sierra peaks that give birth to the 350-mile-long San Joaquin River near Yosemite National Park. Asked if he ever looked at the river and thought of what it had been, he replied: "I'm part Indian. I think more about what they did to the Indians. "Congress in the 1930s decided to dry it up," Upton added. "We can argue whether they should or should not. But they did. And a lot of people based their lives on that water being available. And it worked," Upton said. Still, he's glad the case seems to be finally over. "If we can deal with people like the Red Chinese, why can't we get along on Cali-fornia water issues?"

On the other side of the negotiating table from Upton has been Hal Candee, a Natural Re-sources Defense Council senior attorney who helped file the San Joaquin lawsuit 18 years ago on behalf of a coalition of conservation and fishing groups. Candee, 53, has been involved ever since, driven by outrage that the federal government took a valuable public resource—water— and turned it over to a single constituency—agriculture. "It was handouts to a favored clientele with no regard to impacts downstream," Candee said.

For the slender, bespectacled Princeton graduate from New Jersey, the settlement is not just a victory for the San Joaquin. It is another step in a struggle to loosen Western agriculture's historic hold on massive amounts of cheap federal water and give some of it back to the environ-ment. "One reason that NRDC took on this case and focused so much time and energy on it over the years is because it was one of the most egregious examples of environmental harm caused by a federal water project," said Candee, a co-director of the organization's Western Water Project.

Friant Dam was a critical piece of the Central Valley Project, the Depression-era federal irrigation works that rearranged California's plumbing, capturing massive river flows from the Sierra and the wet north and shunting them to the state's fertile mid-section. The project, which turned the state into an agricultural giant, dammed and diverted many other rivers, including the Sacramento, the state's mightiest. But none was sacrificed to the degree of the San Joaquin.

The groups filed a lawsuit in U.S. District Court in 1988 after the U.S. Bureau of Recla-mation refused to review the project's environmental impact. "We knew it would be a difficult battle. We certainly did not expect it to last this many years," said Candee, who has devoted much of his NRDC career to the case. Talks began after a 1998 ruling in the NRDC's favor. A tentative settlement was struck but then fell apart in 2003, leading to the key decision the next year by U.S. District Judge Lawrence K. Karlton, who has presided over the case since its incep-tion. Karlton ruled that by wiping out the San Joaquin's fishery, the federal government had vio-lated a long-standing—and long-ignored—section of the California Fish and Game Code that re-quired dam owners to release enough water "to keep in good condition any fish that may be planted or exist below the dam."

The river's salmon runs had historically been among the most bountiful on the West Coast. Before farm diversions, logging and mining took their toll in the late 1800s, 200,000 to 300,000 chinook salmon migrated each spring up the San Joaquin and its tributaries. They were so plentiful that settlers were kept awake at night as the fish splashed across sand bars, struggling

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upstream to their spawning grounds. Ranchers trapped them and fed them to hogs. Even up to the early 1940s, the spring run numbered as many as 57,000.

But as Friant's two big canals were built and gulped more and more of the San Joaquin River, the stream shrank to lethally low levels. State fish and game crews mounted desperate ef-forts to save the fish. In 1948, they set up mesh weirs to catch the salmon, hoisted them in metal boxes into tank trucks and drove the fish upstream, around dry stretches, to gravel beds and pools below the dam. The salmon survived, only to run out of river the next year when the young tried to swim back to the ocean. "The trickle of water soon disappeared in the sand, stranding salmon migrants more than 100 miles from the sea," recounted George Warner, one of the rescuers, in a 1991 book on California salmon.

Fish and game lawyers also sought the release of more water for the salmon. But a rising political star, then-California Atty. Gen. Pat Brown, concluded in 1951 that the federal govern-ment was not required to release water to preserve fish below Friant under the fish and game code. In 1974, Brown's opinion was repudiated by one of his successors. And four years later, in another California case, the U.S. Supreme Court ruled that the federal government had to comply with state water law. The stage was set for the legal arguments that ultimately convinced Karl-ton.

Several years ago, when a round of negotiations was stalling, said Upton, he and Candee were asked what they wanted. He remembered Candee replying that he had a new baby daughter and in the years to come, wanted to be able to take her to the river to watch salmon swim up the San Joaquin.

The settlement won't return the San Joaquin to its long-lost pristine state. Most of the river will continue to flow into irrigation ditches crisscrossing the San Joaquin Valley's east side. Experts expect a restored spring run of 5,000 to 10,000 salmon—a fraction of the once-grand mi-grations. But it will be enough to fulfill Candee's wish.

The settlement agreement and other documents are available on the web pages of the Fri-ant Water Users Authority: http://www.fwua.org/sjr/sjr.htm.

11. Implementation of the settlement agreement was delayed almost two years while Con-gress debated whether and how to fund the United States’ share of the costs. Finally, on October 1, 2009, the Bureau of Reclamation began releasing water from Friant Dam to restore the river below:

Kelly Zito, Flows to Restore River Start TodayS.F. Chronicle, Oct. 1, 2009

More than a half century after a colossal federal dam built outside Fresno transformed 64 miles of the San Joaquin River into a dusty trench and annihilated native salmon populations, en-gineers will open the floodgates to begin a new era for California's second-longest river. Begin-ning today, operators will release small pulses of water from Friant Dam with an eye toward "rewetting" the parched riverbed and ultimately reintroducing salmon species beginning next

22

year. Sizable, year-round flows will not push water through the entire length of the 150-mile stretch of the river between the dam and its union with the Merced River until 2014.

Changes in the dam's operations are the first visible signs of a historic river restoration settlement between environmentalist and fishing groups, the federal government and agricultural interests. But the initial flows also highlight the contradictory pressures facing dams in modern California.

While this week brought a tentative agreement to remove four dams along the Klamath River in far northern California and southern Oregon to revive key salmon runs, Gov. Arnold Schwarzenegger has made it clear that a pending overhaul of the state's deteriorating water sys-tem will gain his signature only if it includes major new dam and reservoir projects.

Many involved in the protracted fight to restore the San Joaquin River say today's action represents a rare instance of sacrifice, cooperation and success. "This is truly momentous," said Monty Schmitt, senior scientist at the Natural Resources Defense Council. "When you look at the backdrop of water resource conflicts happening throughout the West, there are very few examples of problems being solved. No one got exactly what they wanted in this, but we've settled this and we're getting water in the river. That's huge."

The legal battle to revive the San Joaquin River, which carves a crescent-shaped, south-north route from the foothills east of Fresno to the sprawling Sacramento-San Joaquin River Delta east of the Bay Area, dates back to 1988. That year, the Natural Resources Defense Coun-cil and environmental groups sued the U.S. Bureau of Reclamation and other federal agencies to prevent them from renewing long-term water contracts with Friant-area irrigation districts that would have continued to siphon virtually all of the water from San Joaquin.

When Friant Dam was built in the 1940s to provide water to about 1 million acres of farmland, it slashed flows to a seasonal trickle and some experts came to describe the river as lit-tle more than an agricultural drainage ditch. Once-plentiful salmon runs—old timers told of scooping fish from the rivers to use as hog feed—disappeared by the early 1950s.

Nearly two decades after the legal wrangling began, in 2006, a federal judge sided with the environmental and fishing groups, ordering the reinstatement of flows and salmon. This past March, Congress gave the project a financial boost by approving $400 million for the river as part of a landmark wilderness bill. An additional $200 million will come from previously approved California bonds. Funds will pay for studying water flows and temperatures, fixing damaged canals, deepening of too-shallow channels and adding fish ladders.

As it stands, the San Joaquin flows for 38 miles past Friant Dam, where it is gradually funneled into cropland by those with rights to pull water directly from the river. At that point, however, the riverbed turns into a sandy furrow for 24 miles. It flows again near the Mendota Pool, where it meets up with the federally constructed canal that moves water from the delta to the Central Valley. Past Sack Dam a short way downriver, the San Joaquin again runs dry for about 40 miles until it converges with the Merced River and its tributaries.

Wildlife biologists who lament the loss of a robust river system teeming with fish and waterfowl welcome the effort to re-establish one, continuous river flow to the Pacific Ocean. For

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the 15,000 farmers served by the river and Millerton Lake behind Friant Dam, however, the 18 percent or so reduction in their water supplies couldn't come at a worse time. Drought, environ-mental restrictions on water exports from the delta and a floundering economy have forced many Central Valley farmers to fallow acreage or pump water from underground. Pumping too much water from wells carries significant risks: It can push water levels below the reach of wells and cause land subsidence.

"This isn't going to be catastrophic, but farmers are going to pump, pump, pump ground-water," said Randy McFarland, spokesman for the Friant Water Users Authority, which repre-sents the region's farmers. "In a sense, that's going to defeat the purpose of the project because the dam was built originally because farmers were depleting groundwater in the 1920s."

12. The controversy over the San Joaquin River was renewed in 2011 when Representatives Devin Nunes and Kevin McCarthy (who is now the House majority leader) introduced H.R. 1837, the San Joaquin Valley Water Reliability Act, to repeal the settlement agreement and re-place it with a statutory requirement that the Bureau of Reclamation maintain a minimum stream flow of minimum flow of 50 cfs at Sack Dam, which is located approximately 85 river miles downstream of Friant Dam. The bill also would have preempted all applications of California law that would require greater stream flows, except for the state’s authority to protect water qual-ity under the Porter Cologne Act. The legislation, H.R. 1837, is described in the following arti-cle:

Carolyn Lochhead, California Water Pact Attacked by GOP CongressmanN.Y. Times, June 3, 2011

House Republicans representing the San Joaquin Valley pressed their attack on Califor-nia's plan to restore water to fisheries and wildlife, holding a hearing Thursday on a bill that would gut a key bipartisan pact passed by the state Legislature in 2009 after decades of litigation. The bill has environmental groups and Bay Area Democrats in an uproar, but it has an excellent chance of passing the GOP-controlled House this year - one of many areas from abortion limits to spending cuts where Republicans are moving aggressively to shift the direction of government.

In the Democratic-controlled Senate, however, the water bill faces strong opposition from California Sens. Dianne Feinstein and Barbara Boxer, both Democrats, as well as opposition from the Obama administration. "I strongly oppose this bill, which I believe is dramatic overkill," Fe-instein said. The question is whether any parts of the wide-ranging legislation would survive and begin to unravel the state's efforts to allocate scarce water to the competing demands of agricul-ture and the environment.

The hearing by the House subcommittee on Water and Power sought to bolster legislation by Rep. Devin Nunes, R-Alpaugh (Tulare County), and co-sponsored by Rep. Kevin McCarthy, R-Bakersfield, designed to divert more water to San Joaquin Valley farmers to rectify what the sponsors contend is a "man-made drought" that they say has devastated farmers, idled 250,000 acres of cropland and wreaked havoc on the economy. The bill would kill a court-approved set-tlement to restore water to the San Joaquin River and undermine a multimillion-dollar water project to restore the Bay Delta and Northern California fisheries.

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Committee Chairman Tom McClintock, R-Elk Grove (Sacramento County), said that de-spite a heavy snowpack this year that is running at 165 percent of normal, the state's farmers are getting only 75 percent of their contracted water. The San Joaquin Valley is "ground zero" for the "deliberate creation of water shortages by governmental fiat and the abandonment of the gov-ernment's responsibility to develop our water resources for the prosperity of our nation," McClin-tock said.

"Are you guys kidding?" asked Rep. John Garamendi, D-Walnut Grove (Sacramento County). "This is really, really terrible policy. If we want to start another water war, this will do it, guaranteed." Cynthia Koehler, California water director for the Environmental Defense Fund, said the legislation threatens thousands of coastal fishing jobs and would undo hard-fought com-promises that have put farmers and the environment on equal footing on water use. Nine conser-vation groups, including the Sierra Club, Nature Conservancy, American Rivers and Defenders of Wildlife, wrote a letter to the committee objecting to the bill.

The wide-ranging legislation would overturn parts of the 1992 Central Valley Project Im-provement Act, supersede the Endangered Species Act and state law, and repeal the 2009 San Joaquin River Restoration Settlement Act passed with bipartisan support after 18 years of litiga-tion. It also would put new controls on spending for the Central Valley Project Restoration Fund, which Republicans said has cost $800 million so far with "no measurable effect" on improving the environment.

California Secretary for Natural Resources John Laird said in blistering testimony that the legislation would overturn carefully crafted compromises in the state and ignore a century of precedent that prevents Congress from meddling in state water issues. The bill, Laird added, also would roll back thinking on water allocation to the mid-1990s, before fish populations "crashed" and before it became widely understood that current allocations of water in the Sacramento-San Joaquin River Delta are unsustainable. By repealing the 2009 pact, Laird said the legislation would "almost certainly send that controversy back to court," setting back, probably by years, ef-forts to resolve the state's water issues.

State Senate President Pro Tem Darrell Steinberg, D-Sacramento, and Assembly Speaker John Pérez, D-Los Angeles, co-signed a letter opposing the bill, while Michael Connor, commis-sioner of the federal Bureau of Reclamation, said the legislation failed to "advance the spirit of cooperation and consensus that is essential to making progress on California water issues."

H.R. 1837 passed the House of Representatives on February 29, 2012, but was never con-sidered in the Senate.

13. On February 5, 2014, the House passed H.R. 3964, the Sacramento-San Joaquin Valley Emergency Water Delivery Act. This bill also would repeal the San Joaquin River settlement agreement and substitute federal water flow standards in place of those set forth in the agree-ment. Section 203 of the legislation would direct the Bureau of Reclamation to maintain mini-mum stream flows of 50 cfs below Friant Dam, but these flow requirements would terminate at the Mendota Pool approximately 62 miles downstream of the dam. Indeed, section 204 states that the Bureau “shall ensure that the release of Restoration Flows are maintained at the level

25

prescribed by this part [i.e., 50 cfs], but that Restoration Flows do not reach downstream of Men-dota Pool.” Section 204 also would suspend the minimum flow requirements during critically dry water years.

The legislation also would preempt all California laws that might imposed steam flow or water quality standards that go beyond the new federal requirements. Section 204 declares that the statute “preempts and supersedes any State law, regulation, or requirement that imposes more restrictive requirements or regulations on the activities authorized under this part.” Section 207 adds that compliance with the 50 cfs flow requirements fulfills the obligations of the Bureau of Reclamation “and all other parties to protect and keep in good condition any fish that may be planted or exist below Friant Dam including any obligations under section 5937 of the California Fish and Game Code and the public trust doctrine, and those of the Secretary [of the Interior] andall other parties under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).”

The following article describes the political (and hydrologic) context of H.R. 3964:

Richard Simon, California Drought: House Republicans Take Aim at Water RulesL.A. Times, Feb. 5, 2014

The Republican-controlled House passed legislation Wednesday billed as a re-sponse to the California drought, but the measure is unlikely to go further in the face of a White House veto threat and opposition from the state’s Democratic senators. Still, the action highlights the growing interest on Capitol Hill in trying to do something about the water shortage, a poten-tially hot issue in this year’s elections. Democratic lawmakers are calling for hearings and hur-riedly drafting legislation of their own.

The House bill would, among other things, roll back environmental protections and halt restoration of a dried-up stretch of the San Joaquin River that is designed to revive salmon runs. It was approved on a largely party-line 229-191 vote.

Republicans blamed Washington policies for the water shortage, bringing photos of fish to the House floor to argue that fish were being put ahead of farmers. “We have listened to the environmental left for 40 years, and this is where it’s gotten us,’’ said Rep. Tom McClintock (R-Elk Grove). “Congress can’t pass a bill to make it rain, but we can pass a bill to put an end to the water shortages that have been caused by misguided regulatory decisions,” Rep. Ken Calvert (R-Corona) said.

Democrats responded by saying that the problem is lack of rain. “It would be more productive for this body to join in a rain dance on the floor today than to pass this bill,’’ said Rep. Mike Thompson (D-St. Helena). Rep. John Garamendi (D-Walnut Grove) warned that the measure would set off a new water war, saying it “steals what little water there is available’’ from some and allocates it to others. Sens. Dianne Feinstein and Barbara Boxer have branded the bill political gamesmanship, and Gov. Jerry Brown has said it “falsely suggests the promise of water relief when that is simply not possible given the scarcity of water supplies.’’ Feinstein and Boxer are drafting their own drought-relief measure.

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The House bill, dubbed the Sacramento-San Joaquin Valley Emergency Water Delivery Act, was sponsored by all 15 California GOP congressmen. It is similar to a Republi-can-written bill that passed the House in 2012 only to die in the Senate. Republicans are hoping the new bill will fare better. The legislation, unveiled a few weeks ago at a Central Valley news conference featuring House Speaker John A. Boehner (R-Ohio) and brought to the House floor with unusual speed, was designed to help Republicans highlight the parties’ differences on an is-sue that could be important in competitive California congressional races.

Environmental groups decried the measure as a “wholesale assault on Califor-nia’s environment, native fisheries, and the thousands of jobs that depend on healthy fisheries and rivers, while providing no durable solutions to effectively addressing California’s water needs.’’ The White House said if the bill makes it to President Obama’s desk, his advisors will recom-mend a veto because it would, among other things, “disrupt decades of work that supports build-ing consensus, solutions, and settlements that equitably address some of California's most com-plex water challenges.’’

14. For an excellent historical analysis of section 5937, see Robert Firpo, The Plain “Dam!” Language of Fish & Game Code Section 5937: How California's Clearest Statute Has Been Di-verted From Its Legislative Mandate, 11 Hastings W.-N.W. J. Env. L. & Pol'y 101 (2005).

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NATURAL RESOURCES DEFENSE COUNCIL v. PATTERSON333 F. Supp. 2d 906 (E.D. Cal. 2004)

LAWRENCE K. KARLTON, SENIOR JUDGE.

This matter comes before the court on plaintiffs' motion for summary adjudication as to liability on their claim under § 8 of the Reclamation Act of 1902. Plaintiffs allege that since the late 1940s, the Department of Interior's Bureau of Reclamation has failed to release the amount of water through the Friant Dam required to keep the San Joaquin River historic fisheries in good condition. The Friant defendants and the Chowchilla Water District bring cross-motions for summary adjudication and for dismissal in which the Madera Irrigation District joins. Califor-nia's State Water Resources Control Board (SWRCB), the Central Delta Water Agency and South Delta Water Agency, and Waterkeepers Northern California and Deltakeeper, have all filed amicus briefs in favor of plaintiffs' motion and in opposition to the Friant defendants' mo-tion.

I.

UNDISPUTED FACTS 

A. THE SAN JOAQUIN RIVER BEFORE FRIANT DAM

The San Joaquin River is the main artery of California's second largest river system. The river originates high in the Sierra Nevada mountains, on mountain peaks southeast of Yosemite National Park, and then tumbles westward out of the mountains and into the trough of the Cen-tral Valley. Near the city of Mendota, the River turns abruptly north for the final stretch of its several hundred mile journey, picking up the Merced, Tuolumne, Stanislaus, Mokelumne, Calav-eras, and Cosumnes Rivers as major tributaries on the way. It finally merges with the Sacra-mento River to form the San Francisco Bay-Delta estuary.

Historically, the San Joaquin River supported substantial populations of Chinook salmon, including both a fall and a spring run. Chinook are distinguishable from other species of Pacific salmon by their large size and unique markings. They are an anadromous species, which means that they emerge and rear in freshwater tributaries, migrate to the ocean as juveniles, and return to their natal waters to spawn two to four years later. The San Joaquin River's adult spring-run Chinook historically returned to the River mostly during the months of March through June, and spent the summer holding in deep pools above and below the existing location of Friant Dam. Spring-run would then spawn in the early fall, and their offspring would migrate out to the sea the following year, generally from January to March. Historically, the adult fall-run Chinook re-turned to the river mostly between September and December, and spawned soon thereafter. Fall-run juveniles would emerge in late winter and migrate out to the sea primarily in the months of March through May.

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Salmon on the San Joaquin River were abundant prior to the closure of Friant Dam. The river's spring run was one of the largest Chinook runs anywhere on the Pacific Coast and has been estimated at several hundred thousand fish. The historical fall run is conservatively esti-mated to have numbered 50,000 to 100,000 fish. So many salmon migrated up the San Joaquin River during the spawning season that some people who lived near the present site of Friant Dam compared the noise to a waterfall. Some residents even said that they were kept awake nights by the myriad salmon heard nightly splashing over the sand bars in the River. One observer re-ported that salmon were so plentiful that ranchers trapped the fish and fed them to hogs. A fish-erman who lived downstream recalls that, in the 1940s, the salmon were still "so thick that we could have pitch-forked them. One almost could have walked across the River on the backs of the salmon when they were running."

The upper San Joaquin River contained Chinook habitat both above and below the loca-tion of Friant Dam, including some of the best spring-run habitat anywhere in California. This included a mixture of deep pools for holding and gravelly riffles for spawning, over which cold water ran. Much of that habitat still survives in the River below Friant Dam. Other anadromous fish, including Pacific lamprey and steelhead, once lived on the San Joaquin River below Friant Dam as well. Collections of fish made in the vicinity of Friant in 1898 and 1934 indicate that the River supported diverse native fish that included rainbow trout, splittail, hitch, hardhead, and Kern brook lamprey, all species of conservation interest today. The river's flow into the Delta also helped support that important ecosystem's water quality and habitat. In 1999, the National Marine Fisheries Service designated the San Joaquin River between Friant Dam and the Merced as "essential fish habitat" for Chinook salmon, pursuant to the Magnuson-Stevens Fishery Con-servation and Management Act, 16 U.S.C. §§ 1801-83. 

B. THE BUILDING OF FRIANT DAM

The Bureau built Friant Dam across the upper San Joaquin River, northwest of Fresno, in the early 1940s as part of the Central Valley Project. Construction began in 1939 and was largely completed by the mid-1940's. The Dam stores the river's flow in Millerton Lake, the reservoir behind the Dam, and diverts water for irrigation and other purposes into two canals. The first of these, the Madera Canal, was completed in 1945. The second, the Friant-Kern Canal, began delivering water by 1949. Since that time, the Bureau has operated Friant Dam to maximize the quantity of water diverted to its Friant Division contractors, including the non-fed-eral defendants.

Friant Dam blocked upstream access to a portion of the San Joaquin River's spawning habitat for salmon and steelhead; however, it was not the construction of the Dam that terminated the salmon runs. For several years after Friant Dam was in place, the Bureau released sufficient water to sustain the salmon fishery. Chinook salmon are a remarkably resilient species, and al-though Friant Dam blocked passage to upstream habitat, during the first years after the Dam was built, spring-run Chinook successfully held in pools below Friant Dam during the summer months, adults successfully spawned in habitat below the Dam, and juveniles continued to mi-grate downstream. In one of these years, 1945, an estimated 56,000 spring-run returned to

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spawn below Friant Dam. While the upper San Joaquin's salmon runs were not as strong as they once were, Professor G.H. Clark, of Stanford University, reported that the fish themselves were "in excellent shape" in 1942.

By the late 1940s, however, the Bureau's operation of Friant Dam had caused long stretches of the River to dry up. In the spring of 1948, the California Division of Fish and Game responded with a dramatic fish rescue in an attempt to save the River's spring-run Chinook salmon. About 2,000 up-migrating Chinook were trapped in the lower portion of the River, hauled by truck around the de-watered stretch of the River, and released at a point from which they could migrate upstream to deep pools just below Friant Dam. These salmon were able to hold over the summer in these pools, and to spawn successfully below Friant Dam in the fall, but their offspring perished in early 1949 when they attempted to out-migrate through the dried-up River bed.

With the completion of the Friant-Kern Canal, the Bureau in 1949 further increased di-versions, leaving even less water for the San Joaquin River. The last of the upper San Joaquin River's fall-run Chinook salmon were reported in a pool below Mendota Dan in 1949. Spring-run Chinook salmon disappeared from the San Joaquin River after unsuccessful salmon rescue attempts in 1949 and 1950. For most of the last 50 years, the Bureau has diverted virtually all of the River's flows. While salmon continued to return and spawn until 1949, after that, "the San Joaquin Chinook was extirpated in its southernmost range."

Some sixty miles of the River upstream of its confluence with the Merced now lie contin-uously dry, except during rare flood events. The spring-run Chinook—once the most abundant race of salmon in the Central Valley—appear to have been extirpated from the length of the River. Small populations survive only in the Sacramento River system. The fall-run Chinook, too, were eliminated from the upper San Joaquin River, although reduced populations of fall-run Chinook survive on downstream tributaries, principally the Merced, Tuolumne, and Stanislaus Rivers. In the words of the Department of the Interior, Friant Dam's operations have been a "dis-aster" for Chinook salmon. United States Dep't of the Interior, The Relationship Between In-stream Flow, Adult Immigration, and Spawning Habitat Availability for Fall-Run Chinook Salmon in the Upper San Joaquin River, California at 6 (Sept. 1994).

Despite the upper San Joaquin River's degraded habitat and long stretches of normally dry river bed, salmon and Pacific lamprey have returned to the upper San Joaquin River in wet years, even after Friant Dam began full storage and diversion operations. Part of Chinook salmon's natural behavior includes establishing or re-establishing themselves in new streams and rivers by "straying" from their natal waters. In some years, salmon have made it to the base of Friant Dam. Adequate flows of water have not been released from Friant Dam for these up-mi-grating salmon to spawn, however, or for their offspring to migrate back to the sea.

The Bureau's operation of Friant Dam has also contributed significantly to declines in other native fish throughout the San Joaquin River system. Following the construction of Friant Dam, ten of the sixteen species of native fish disappeared from the area. They were replaced, in

30

the reaches where enough water for any fish still exists, primarily by a variety of non-na-tive fishes.

Waters from the upper San Joaquin had been critical to providing habitat for fish species many miles below the Dam. San Joaquin River flows are needed to help attract adult salmon to their spawning grounds, to provide habitat for young and juvenile salmon, to move juvenile salmon downstream in the spring through the lower San Joaquin River, and to provide sufficient dilution of toxic and saline drainage to maintain a minimum level of water quality. Failure to re-lease water from Friant Dam has rendered many miles of fish habitat unusable, especially in the stretch between the Dam and the river's confluence with the Merced, and has also adversely af-fected water quality along the whole course of the river. Today, the first several miles of the San Joaquin River deep water ship channel, near Stockton, experience dissolved oxygen levels that are so low during summer and fall months that they do not meet the state water quality objective. Low dissolved oxygen in these reaches poses a danger to fish generally, and a migration barrier to anadromous fish, including salmon in particular.

Reduced flows in the San Joaquin below Friant Dam have diminished the area available for fish, increased the temperature of the water that is available, reduced the ability of the river to assimilate agricultural runoff and other pollutants, and substantially degraded riparian vegetation. Native fishes such as hitch, split-tail, tule perch, and pike-minnow, have largely disappeared from the River and have been replaced by exotic fishes tolerant of warm polluted water. The present warm-water fishery that exists on portions of the San Joaquin River between Mendota Pool and the San Joaquin's confluence with the Merced River is small and erratic. Many of the fish in this reach are contaminated with pesticides and other agricultural contaminants. From Mendota Pool to Sack Dam, the river is basically used to convey irrigation water, and from Sack Dam to the river's confluence with the Merced River, the river is dewatered for forty miles until agricultural drain water provides a small flow that is a highly degraded environment for fish. Surveys by the U.S. Geological Survey indicate that the fish in this polluted section of the river are almost entirely pollution-tolerant non-native fishes, such as common carp, red shiners, bluegill, and mosquito fish. The native fish have largely disappeared.

* * *

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III.

ANALYSIS 

A. INTRODUCTION

As this court has previously held, and as explained in greater detail below, § 8 of the Reclamation Act of 1902, makes California Fish and Game Code § 59371 applicable to the fed-eral defendants in this case. Plaintiffs' first claim is premised on § 5937. Plaintiffs allege that the Bureau of Reclamation, since the 1940's, has failed to "allow sufficient water" to "pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam."

In California v. United States, 438 U.S. 645, 57 L. Ed. 2d 1018, 98 S. Ct. 2985 (1978), the Supreme Court explained that the "cooperative federalism" mandated by § 8 required the United States to comply with state water laws unless that law was directly inconsistent with clear congressional directives regarding the project. Id. at 650, 678; see id. at 653 ("The history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent threat of pur-poseful and continued deference to state water law by Congress."). Thus, absent displacement by another federal statute, § 8 requires the Bureau of Reclamation to comply with § 5937. See NRDC v. Houston, 146 F.3d 1118, 1132 (9th Cir. 1988).

In their motion for summary adjudication, plaintiffs ask this court to find that the federal defendants have violated § 8 and § 5937, but to reserve the question of remedy for a subsequent phase of the litigation.

In their oppositions to plaintiffs' motion, and in their own motions, the defendants argue, inter alia, that (1) plaintiffs lack standing (2) the court lacks subject matter jurisdiction to enter-tain plaintiffs' claim under the Administrative Procedure Act, (3) the State Water Resources Board has addressed the issue and the Board's decision is entitled to preclusive effect, and (4) plaintiffs' claim is preempted by the Central Valley Project Improvement Act.

This litigation was commenced in 1988. While much of that time was taken up by efforts to reach a good faith settlement, this court has invested a substantial amount of time over the past fifteen years resolving the many subtle and complex legal issues raised by this lawsuit and by the § 8/ § 5937 claim in particular. Many of the arguments raised by the defendants have been pre-viously litigated and have resulted in decisions, both by this court and by the U.S. Court of Ap-

1 That statute provides:

The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.

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peals for the Ninth Circuit. In that regard, the court has previously warned the parties against continually relitigating such issues. Unfortunately, that admonition has not affected the defen-dants' conduct. I thus now must reiterate that the court's previous rulings are law of the case, and may not now be reopened or relitigated. See, e.g., Pitt River Home & Agric. Co-op. v. United States, 30 F.3d 1088, 1096-97 (9th Cir. 1994) (holding that "the law of the case rule ordinarily precludes a court from re-examining an issue previously decided by the same court, or a higher appellate court, in the same case." In sum, where an issue has been decided, the court will not revisit the question unless changed law or circumstances warrant it.2

 * * *

C. APPLICABILITY OF SECTION 5937 TO FRIANT DAM

The federal defendants once again argue that § 5937 does not apply to the Friant Dam. In their January 1992 motion to dismiss, the federal defendants also argued that § 5937 "does not apply to Friant Dam" as a matter of state law, that § 5937 "is inconsistent with clear Congres-sional directives and thus may not be applied to Friant Dam," and that "section 5937 is simply not a statute that is included within Section 8's mandate." In a parallel motion, the non-federal defendants likewise argued that § 5937 "is not one of the laws to which Congress directed or in-tended that the [Bureau] comply when carrying out its responsibilities under the 1902 Federal Reclamation Act," and urged the court to "invoke the abstention doctrine to stay further federal court proceedings." This court's April 1992 published order rejected these arguments, holding that § 5937 "relates to the control, appropriation, use or distribution of water used in irrigation," and therefore that the state statute "must be held to be within the purview of state laws made ap-plicable to the Bureau through Section 8 [of the Reclamation Act of 1902.]" Patterson, 791 F. Supp. at 1433, 1435. "Section 8," this Court squarely held, "mandates compliance with the state statute." Id. at 1435. Defendants have identified no change in facts or circumstances that war-rants revisiting the court's prior ruling. 

D. WHETHER § 5937 ESTABLISHES ALTERNATIVE REQUIREMENTS

Section 5937 provides that "the owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam." The Friant defendants argue that this language sets forth alternative requirements for the release of water. The phrase "any fish that may be planted or exist below the dam," they con-tend, when given its usual, ordinary, meaning, should be read to require a dam owner to release enough water from the dam to "keep"— that is, to maintain in good condition—either "any fish that may be planted" or, in the alternative, "any fish that may . . . exist below the dam." Plain-tiffs, they argue, improperly read "any" as if it meant "all," and "or" as if it meant "and." Defen-dants cite case law which stands for the proposition that the word "or" in a statute must be read in

2 [Judge Karlton’s analysis and rejection of the defendants’ motions for summary judgment based on standing, finality, and federal subject matter jurisdiction is omitted.—ed.]

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the disjunctive, i.e., the word indicates the legislature's intention to designate alternative cate-gories. * * *

* * *

At oral argument, counsel for amicus State Water Resources Control Board offered a common sense solution to the interpretive problem that is both consistent with the default rule of construction and the general purposes of the statute. The disjunctive language, amicus submits, merely "establishes the categories of fish that are to be protected." The statute does not read "any fish that may be planted and exist below the dam" because there may well not have been any fish planted below the dam. As counsel for amicus observed, "obviously, if there are no planted fish there, there is no duty to protect them." The language of the statute, on this interpre-tation, is to be read "disjunctively so as to designate alternative or separate categories," Pis-cioneri, 95 Cal. App. 4th at 1044, as defendants suggest, but the alternative categories involved are existential ones; there may be planted fish or there may not be. Ultimately, however, the statute places a single duty on the dam owner, directing the dam owner to maintain "any fish" that fall into one of two enumerated categories.

The opinion of Justice Blease in California Trout, Inc. v. Superior Court, 218 Cal. App. 3d 187, 266 Cal. Rptr. 788 (Cal. Ct. App. 1990), the only California appellate decision to con-strue § 5937, is entirely consistent with this interpretation. Cal Trout holds that the statute man-dates the reestablishment and maintenance of a dry stream's "historic fishery." Cal Trout, 218 Cal. App. 3d at 210. As plaintiffs point out, under the Friant defendants' interpretation, however, the statute would allow a dam owner to achieve compliance by building an aquarium below the dam. This interpretation would run counter to common sense, the Court of Appeal's decision and to the Legislature's obvious intent. As Cal. Trout put it, "the Legislature has already balanced the competing claims for water . . . and determined to give priority to the preservation of their fisheries." Id. at 201. Thus, the statute's plain meaning, legislative history, and construction by the state's court all point in a single direction and require this court to reject the Friant defen-dants' proposed interpretation of the statute. 

E. WHETHER THE CVPIA PREEMPTS § 5937

1. Prior Rulings

The Central Valley Project Improvement Act (CVPIA) provides that Friant Dam water is not to be released from the Friant Dam to comply with the provisions of the CVPIA regarding the development of a plan to reestablish fish below the Dam. CVPIA, Pub. L. No. 102-575, § 3406(c)(1), 1992 U.S.C.C.A.N. (106 Stat.) at 4721.

In February 1993, the federal defendants filed a motion to dismiss, arguing that the then recently-enacted CVPIA preempted § 5937 as applied to Friant Dam. The non-federal defen-dants joined in this motion, and also asserted that original federal authorization of Friant Dam in-dicated an intent to preempt § 5937. * * *

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* * *

The Ninth Circuit squarely affirmed this court's holdings that § 8 requires compliance with § 5937 and that federal law does not facially preempt § 5937. See Houston, 146 F.3d at 1131 ("The Non-federal defendants challenge the district court's ruling that § 5937 was not, on its face, preempted by federal law. We affirm on the facial preemption issue."). After examining the language and structure of the CVPIA, the Circuit concluded that "there is no clear directive in the CVPIA which preempts the application of § 5937 if the state law could be implemented in a way that is consistent with Congress' plan to develop and restore fisheries below the Friant dam in a manner that is reasonable, prudent, and feasible." Id. at 1132 (quoting CVPIA, Pub. L. 102-575, § 3406(c), 1992 U.S.C.C.A.N. (106 Stat.) at 4721).3

2. Cal Trout, Houston and CVPIA Preemption

In California Trout, Inc. v. State Water Resources Bd., 207 Cal. App. 3d 585, 255 Cal. Rptr. 184 (Cal. Ct. App. 1989), the court considered appeals from the dismissal of petitions for writs of mandate to compel the Water Resources Board to rescind two water appropriation li-censes issued to Los Angeles, which allowed the diversion of water by means of dams from four creeks. Plaintiffs contended that the licenses violated Fish and Game Code § 5946, which di-rected that "no . . . license to appropriate water [in portions of Mono and Inyo Counties] shall be issued . . . after September 9, 1953, unless conditioned upon full compliance with Section 5937." These provisions, §§ 5946 and 5937, the court observed, "straightforwardly limit the amount of water that may be appropriated by diversion from a dam in the designated area by requiring that sufficient water first be released to sustain fish below the dam." Id., 207 Cal. App. 3d at 599.

The opinion expressly did not "reach the question of the application of section 5937 alone as a rule affecting the appropriation of water." Rather, the court held that

regardless of the original scope of application of section 5937, the purpose of its incorpo-ration into section 5946 is, as section 5946 says, to "condition []", and therefore limit, the "appropriation" of water by the priority given to the preservation of fish as set forth in section 5937. Section 5946 provides that "no permit or license to appropriate water in District 4 1/2 shall be issued . . . after September 9, 1953, unless conditioned upon full compliance with Section 5937." One does not show compliance with a rule by claiming that it is inapplicable. Compulsory compliance with a rule requiring the release of suffi-cient water to keep fish alive necessarily limits the water available for appropriation for

3 It may be that the reasonableness provision of the CVPIA ultimately insulates the Bureau from the full rigor of the state statute. That possibility, however, is a question of remedies, not of pre-emption. Put somewhat differently, but to the same effect, whatever the reasonableness compo-nent of the CVPIA ordains, it is clear that complete diversion of the river, with its concomitant destruction of the historical fisheries, is not reasonable.

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other uses. Where that effects a reduction in the amount that otherwise might be appro-priated, section 5946 operates as a legislative choice among competing uses of water.

 Id. at 601.

Cal Trout does not explicitly hold that § 5937 mandates placing the preservation of fish above the irrigation purposes of a dam, but reserves the question of the statute's application alone as a rule affecting appropriation of water, separate from § 5946. The court simply interprets the statute, based on its plain meaning and context, as "requiring the release of sufficient water to keep fish alive," without addressing the issue whether that requirement might somehow be lim-ited or conditioned in the context of a larger federal statutory regime.

As discussed above, the Supreme Court in California v. United States, 438 U.S. 645, 57 L. Ed. 2d 1018, 98 S. Ct. 2985 (1978), held that the "cooperative federalism" mandated by § 8 required the federal government to comply with state water laws unless such a law was directly inconsistent with clear congressional directives regarding the project. Id. at 650, 678. On re-mand to the Ninth Circuit, that court concluded that the term "congressional directive" meant a preemptive federal statute. United States v. California, 694 F.2d 1171, 1176-77 (9th Cir. 1982); see NRDC v. Houston, 146 F.3d 1118, 1132 (9th Cir. 1988).

In Houston, as also explained above, the Ninth Circuit addressed and rejected the non-federal defendants' argument that § 5937 is, on its face, preempted by federal law. The Ninth Cir-cuit's conclusion on this point bears directly on the issue presented in the instant motions. The court held that "there is no clear directive in the CVPIA which preempts the application of § 5937 if the state law could be implemented in a way that is consistent with Congress' plan to de-velop and restore fisheries below the Friant dam in a manner that is reasonable, prudent, and fea-sible." Id. at 1132 (quoting CVPIA. Pub. L. 102-575, § 3406(c), 1992 U.S.C.C.A.N. (106 Stat.) at 4721).

Thus, the question becomes whether the state statute, § 5937, may in fact be implemented in such a way in this case. That question, as the Ninth Circuit recognized, is not a question of fa-cial incompatibility, but rather one of actual application. For this reason, the court affirmed on the facial preemption question and left open the question of preemption at the remedy stage. See id. at 1132 ("it has yet to be determined how much water release would be required under § 5937 and whether that would be consistent with the CVPIA"). Because the instant motions concern only liability under § 5937, such a determination must await the remedial phase of this litigation. 

F. WHETHER THE STATE WATER RESOURCES CONTROL BOARD'S PRIORDECISION PRECLUDES PLAINTIFFS' CLAIM

The primary basis for the Friant defendants' motion for summary adjudication, and an im-portant component of the federal defendants' opposition to the plaintiffs' motion, is their position that the plaintiffs' claim is barred by a prior decision of the State Water Resource Control Board known as D-935. That ruling, they argue, settled the question of whether § 5937 requires the re-

36

lease of additional water from Friant Dam for fish maintenance and protection, and the issue may therefore not be reopened. As I now explain, for several reasons defendants' argument is not well-taken.

1. Law of the Case

This court has already ruled that D-935 does not bar plaintiffs' claim. This ruling is law of the case and may not be relitigated absent a change in law or circumstances. ***

On July 23, 1992, the non-federal defendants filed a motion to dismiss, or in the alterna-tive, to join the Water Resources Control Board as an indispensable party. The defendants argued that "issuance of an order mandating the release of water from Friant Dam for the purpose of maintaining and preserving fish below the dam" might "conflict" with the water rights permit, known as "D-935," that the State Board had issued for Friant Dam; that an order from this court on the § 8/ § 5937 claim could "impede the Board's ability to determine whether and how § 5937 should be applied"; and finally, that "in the absence of the Board, complete relief cannot be ac-corded."

The California Attorney General then filed an amicus brief on behalf of the State Board supporting the plaintiffs' right to bring their § 8/ § 5937 claim in this Court. The State Board ex-plained that under California law, the judiciary has concurrent jurisdiction to enforce § 5937, and that an order from this court enforcing the federal statute would not conflict with the Board's de-cision in D-935 for at least two reasons. D-935, decided in the late 1950s, simply made a deter-mination specific to that time that allowing water to remain for fish was not required in the pub-lic interest, but explicitly left open the door for a subsequent proceeding to require enhanced flows to restore salmon. Moreover, because D-935 set a ceiling on water diversions, not a floor, requiring "compliance with section 5937 would not contravene [the Board's] prior issued per-mits."

On January 8, 1993, this court rejected the defendants' motion to dismiss based on the State Board's asserted exclusive jurisdiction and prior order. In doing so, the court specifically held that an order requiring "the release of water for enhancement or preservation of in-stream values . . . would not impair or impede D-935 or the Friant Permits." The court further held that, "under California law, the Board does not have exclusive jurisdiction over such decisions." Rather, this Court has jurisdiction over § 8, and given its incorporation of § 5937 and the absence of exclusive Board jurisdiction, this court is empowered to require the Bureau to comply with the state statute's provisions. Thus, the argument based on the SWRCB's exclusive jurisdiction and prior ruling—the gravamen of the Friant Defendants' motion for summary adjudication—is en-tirely foreclosed by the law of the case.

* * *

G. WHETHER THE BUREAU HAS VIOLATED § 5937

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Finally, with the defendants' various contentions having been dispensed with, it is possi-ble to arrive at the question of liability under § 5937. As it happens, the issue as to the actual merits of plaintiffs' first claim is among the least difficult of the issues presented.

In Cal Trout, Justice Blease addressed how much water must be released into a dry river to comply fully with § 5937. "The answer," he said, "is enough to restore the historic fishery." 218 Cal. App. 3d at 210. To implement this mandate, the court directed the City of Los Angeles to "release sufficient water into the streams from its dams to reestablish and maintain the fish-eries which existed in them prior to [the City's] diversion of water." Id. at 213.

In opposing plaintiffs' motion, the defendants have focused their energies on various rea-sons why their claims should be barred. There is no genuine dispute, however, as to whether the Bureau has released sufficient water to maintain historic fisheries, and the record, in any event, is clear that the Bureau has not. The administrative record, which defendants strenuously insisted must be produced before the court could rule on the instant motions, merely confirms this fact. Indeed, plaintiffs' supplemental briefing contains ample evidence derived from the record that es-tablishes in great detail the impact of the Friant Dam's operations on the native fish populations.

The Bureau, by its own admission, releases no water for this purpose and long stretches of the River downstream are dry most of the time.4 Ten years ago, the Bureau commissioned the Department of the Interior's Fish and Wildlife Service to investigate and report on Chinook salmon in the upper San Joaquin River. The opening page of the report states:

Historically, the upper San Joaquin River supported a large spring-run of chinook salmon. The annual spawning run of these fish numbered in the tens of thousands as late as the mid-1940s. Although only sparse or incomplete records are available, there proba-bly was a fall-run of chinook salmon as well. Counts made at the Dos Palos USGS gag-ing station indicate that fall-run escapement averaged about 1,000 spawners in the 1940s. Both of these salmon stocks were extirpated when Friant Dam became fully operational.

 The extinction of these San Joaquin stocks can be directly attributed to inadequate

instream flows, specifically, those which enable adult salmon to migrate upstream. . . . The project diverted nearly the entire river and a long reach of the waterway had been dried up.

U.S. Dep't of the Interior, Fish & Wildlife Service, The Relationship Between Instream Flow. Adult Immigration, and Spawning Habitat Availability for Fall-Run Chinook Salmon in the Up-per San Joaquin River, California at 6 (Sept. 1994) (citations omitted). There can be no genuine

4 At oral argument, the non-federal defendants asked, in effect, how far below the dam was "be-low the dam" for § 5937 purposes. It appears to the court that the inquiry begs the question. If the dam's operation interferes with the well being of the historic fisheries in the river, under Cal Trout, the dam must be operated to obviate that result.

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dispute that many miles of the San Joaquin River are now entirely dry, except during extremely wet periods, and that the historic fish populations have been destroyed.

Accordingly, the court concludes that the Bureau of Reclamation has violated § 5937 of the California Fish and Game Code as applied to it by virtue of § 8 of the Reclamation Act of 1902.5

IV.

CONCLUSION

For the foregoing reasons, plaintiffs' motion for summary adjudication as to liability alone on their first claim is hereby GRANTED and the Friant Defendants' and Chowchilla Water District's motions for summary adjudication are hereby DENIED.

5 That this court has reached the conclusion that the Bureau has violated its duty hardly begins to address the problem of remedies. In this regard, the court notes not only the issue of whether the reasonableness component of the CVPIA constitutes an overlay on the Bureau's duties, but as the non-federal defendants noted in oral argument, farmers throughout the valley have dedicated their lives and fortunes to making the desert bloom. They did so in reliance on the availability of CVP water. That reality most likely should be taken into account when the court comes to ad-dress a remedy. See Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 553-54, 94 L. Ed. 2d 542, 107 S. Ct. 1396 (1987); Save the Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir. 1988).

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