MEALEY’S TM TM Water Rights Law Report October 2014 Volume 1, Issue #1 In Water Rights Case, Justice Breyer Asks States: ‘Can You Work This Out?’ WASHINGTON, D.C. — Listening to arguments by Kansas about Nebraska’s violation of a 2006 Republican River water rights settlement, U.S. Supreme Court Justice Stephen G. Breyer on Oct. 14 asked Nebraska’s lawyer: ‘‘Is there any chance that you all could work this out?.’’ SEE PAGE 4. U.S. Tells High Court To Hold Off Before Taking On Florida-Georgia Water Dispute WASHINGTON, D.C. — The federal government on Sept. 18 said the U.S. Supreme Court should deny a petition by the State of Florida to resolve a long-running water dispute with Georgia and wait until the U.S. Army Corps of Engineers has finished updating its Master Water Control Manual (Master Manual) for federal water projects in the Apalachicola-Chattahoochee-Flint (ACF) Basin. SEE PAGE 6. U.S. Supreme Court Asks Solicitor General’s View On Miss.-Tenn. Water Dispute WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 20 asked the solicitor general for his views on Mississippi’s renewed complaint that Tennessee is unlawfully taking Mississippi’s underground water for the City of Memphis, Tenn. SEE PAGE 7. Judge Rules On Calif. Dam Releases, But Parties Can’t Agree On Final Remedy FRESNO, Calif. — Although a California federal judge issued an opinion and order about federal water releases from a Trinity River dam, the federal government and two California state water authorities on Oct. 17 said they are unable to agree on language for a final judgment. SEE PAGE 10. Summary Judgment Granted In Challenge Of Forest Service’s OK Of Gold-Mine Project SACRAMENTO, Calif. — A California federal judge on Oct. 1 granted summary judgment to the U.S. Forest Service, finding among other things that that plaintiffs opposed to a California gold-mining project did not show that the project’s water use will have a detrimental effect on the Salmon River watershed. SEE PAGE 11. New Environmental Study Ordered By Judge, But Water Bank Will Stay Open SACRAMENTO, Calif. — A California state court judge on Oct. 2 ordered the state water department to conduct a new environmental impact report (EIR) for the Kern Water Bank but denied a suggestion to shut down the bank, saying that to do so in a historic drought would be ‘‘irresponsible.’’ SEE PAGE 12. Montana Supreme Court Upholds Water Court’s Dismissal Of Claim Objection HELENA, Mont. — An objector to a water diversion application failed to present evidence that the holder put the water to beneficial use, that the diversion involved a separate water source and that the holder abandoned its rights, the Montana Supreme Court ruled Sept. 16. SEE PAGE 16. Idaho Supreme Court Affirms Deed Correction To Clarify Lack Of Water Rights BOISE, Idaho — The Idaho Supreme Court on Sept. 19 affirmed a lower court’s decision to correct a deed that mistakenly transferred water rights. SEE PAGE 19. N.M. Ranchers Denied TRO Against Grazing Closure For New Endangered Species ALBUQUERQUE, N.M. — A New Mexico federal judge on Oct. 9 denied issuance of a temporary restraining order sought by 32 ranchers against the U.S. Forest Service for closing off parts of two national forests from cattle grazing in order to protect a new endangered species. SEE PAGE 20. Nevada Federal Judge OKs Changes To Orr Ditch Decree LAS VEGAS — A Nevada federal judge on Sept. 30 granted a motion to amend or alter the 1944 Orr Ditch Decree, saying circumstances have changed and the court has authority to alter past decrees. SEE PAGE 22.
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Transcript
MEALEY’S TMTM
Water Rights Law ReportOctober 2014 Volume 1, Issue #1
In Water Rights Case, Justice Breyer Asks States: ‘Can You Work This Out?’WASHINGTON, D.C. — Listening to arguments by Kansas about Nebraska’s violation of a 2006 RepublicanRiver water rights settlement, U.S. Supreme Court Justice Stephen G. Breyer on Oct. 14 asked Nebraska’s lawyer:‘‘Is there any chance that you all could work this out?.’’ SEE PAGE 4.
U.S. Tells High Court To Hold Off Before Taking On Florida-Georgia Water DisputeWASHINGTON, D.C. — The federal government on Sept. 18 said the U.S. Supreme Court should deny a petitionby the State of Florida to resolve a long-running water dispute with Georgia and wait until the U.S. Army Corpsof Engineers has finished updating its Master Water Control Manual (Master Manual) for federal water projects inthe Apalachicola-Chattahoochee-Flint (ACF) Basin. SEE PAGE 6.
U.S. Supreme Court Asks Solicitor General’s View On Miss.-Tenn. Water DisputeWASHINGTON, D.C. — The U.S. Supreme Court on Oct. 20 asked the solicitor general for his views onMississippi’s renewed complaint that Tennessee is unlawfully taking Mississippi’s underground water for the Cityof Memphis, Tenn. SEE PAGE 7.
Judge Rules On Calif. Dam Releases, But Parties Can’t Agree On Final RemedyFRESNO, Calif. — Although a California federal judge issued an opinion and order about federal water releases froma Trinity River dam, the federal government and two California state water authorities on Oct. 17 said they are unableto agree on language for a final judgment. SEE PAGE 10.
Summary Judgment Granted In Challenge Of Forest Service’s OK Of Gold-Mine ProjectSACRAMENTO, Calif. — A California federal judge on Oct. 1 granted summary judgment to the U.S. Forest Service,finding among other things that that plaintiffs opposed to a California gold-mining project did not show that theproject’s water use will have a detrimental effect on the Salmon River watershed. SEE PAGE 11.
New Environmental Study Ordered By Judge, But Water Bank Will Stay OpenSACRAMENTO, Calif. — A California state court judge on Oct. 2 ordered the state water department to conduct anew environmental impact report (EIR) for the Kern Water Bank but denied a suggestion to shut down the bank,saying that to do so in a historic drought would be ‘‘irresponsible.’’ SEE PAGE 12.
Montana Supreme Court Upholds Water Court’s Dismissal Of Claim ObjectionHELENA, Mont. — An objector to a water diversion application failed to present evidence that the holder put thewater to beneficial use, that the diversion involved a separate water source and that the holder abandoned its rights,the Montana Supreme Court ruled Sept. 16. SEE PAGE 16.
Idaho Supreme Court Affirms Deed Correction To Clarify Lack Of Water RightsBOISE, Idaho — The Idaho Supreme Court on Sept. 19 affirmed a lower court’s decision to correct a deed thatmistakenly transferred water rights. SEE PAGE 19.
N.M. Ranchers Denied TRO Against Grazing Closure For New Endangered SpeciesALBUQUERQUE, N.M. — A New Mexico federal judge on Oct. 9 denied issuance of a temporary restrainingorder sought by 32 ranchers against the U.S. Forest Service for closing off parts of two national forests from cattlegrazing in order to protect a new endangered species. SEE PAGE 20.
Nevada Federal Judge OKs Changes To Orr Ditch DecreeLAS VEGAS — A Nevada federal judge on Sept. 30 granted a motion to amend or alter the 1944 Orr Ditch Decree,saying circumstances have changed and the court has authority to alter past decrees. SEE PAGE 22.
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MEALEY’STMTM
Water Rights Law ReportOctober 2014 Volume 1, Issue #1
Cases in this Issue Page
State of Kansas v. State of Nebraska, et al., No. 126, Original, U.S. Sup ................. 4State of Florida v. State of Georgia, No. 142, Original, U.S. Sup. ............................ 6State of Mississippi v. State of Tennessee, et al., No. 143, Original, U.S. Sup.......... 7Stewart & Jasper Orchards, et al. v. Sally Jewell, et al., No. 14-377, U.S. Sup......... 8San Luis & Delta-Mendota Water Authority, et al. v. Sally Jewell, et al.,
No. 13-1232, E.D. Calif. .................................................................................... 10Klamath Siskiyou Wildlands Center, et al. v. United States Forest Service, et al.,
No. 12-1676, E.D. Calif. .................................................................................... 11Central Delta Water Agency, et al. v. California Department of Water Resources,
et al., No. 34-2010-80000561; Rosedale-Rio Bravo Water Storage District,et al. v. California Department of Water Resources, et al.,No. 34-2010-80000703, Calif. Super., Sacramento Co. .................................... 12
Millview County Water District, et al. v. State Water Resources Control Board,et al., No. A139481, Calif. App., 1st Dist., Div. 1 ........................................ 13
Santa Barbara Channelkeeper v. State Water Resources Control Board, et al.,No. CPF-14-513875, Calif. Super., San Francisco Co. ...................................... 14
Living Rivers Council v. State Water Resources Control Board, No. A138723,Calif. App., 1st Dist., Div. 5 ............................................................................... 15
Donald C. Marks v. 71 Ranch, LP, No. DA 13-0489, Mont. Sup. ..................... 16Eldorado Co-Op Canal Co., et al., No. DA 13-0709, Mont. Sup. ...................... 17Jay Brown, et al. v. Augusto Sayoko Mimoto Greenheart, No. 41189, Idaho
Sup., Boise, August 2014 Term, 2014 Opinion No. 100, Idaho Sup. .............. 19San Diego Cattlemen’s Cooperative Association, et al. v. Tom Vilsack, et al.,
No. 14-818, D. N.M. .................................................................................... 20United States of America v. Orr Water Ditch Co., et al., No. 3:73-cv-31,
D. Nev. ........................................................................................................... 22Village of Four Seasons Association, Inc. v. Elk Mountain Ski Resort, Inc.,
County, Oklahoma v. City of Guthrie, et al., No. 05-786, W.D. Okla............ 24Niagara Mohawk Power Corporation, et al. v. Allied Healthcare Products, Inc.,
et al., No. 6516-09, N.Y. Sup., Albany Co. ....................................................... 25HEAL Utah, et al. v. Kane County Water Conservancy District, et al.,
No. 20140429, Utah App................................................................................... 27James Jefferson Jowers, Sr., et al. v. South Carolina Department of Health
In the Matter Salt River Valley Water Users’ Association, et al.,No. 13A-SW001-DWR, Ariz. Dept. Water Resources....................................... 28
Published document is available at the end of the report. For other availabledocuments from cases reported on in this issue, visit www.mealeysonline.com or call1-800-MEALEYS.
In this Issue
Interstate LitigationIn Water Rights Case, Justice Breyer AsksStates: ‘Can You Work This Out?’ ............... page 4
U.S. Tells High Court To Hold OffBefore Taking On Florida-GeorgiaWater Dispute................................................ page 6
U.S. Supreme Court Asks SolicitorGeneral’s View On Miss.-Tenn.Water Dispute................................................ page 7
High Court Asked If Endangered FishTrumps Economic Harm ToCalifornia Water Users ................................... page 8
CaliforniaJudge Rules On Calif. Dam Releases,But Parties Can’t Agree On FinalRemedy........................................................ page 10
Summary Judgment Granted InChallenge Of Forest Service’sOK Of Gold-Mine Project........................... page 11
New Environmental Study OrderedBy Judge, But Water Bank WillStay Open .................................................... page 12
California Appeals Court Won’t RehearRussian River Water Rights Case ................. page 13
Group Seeks Mandate For State WaterBoard To Study Ventura’s Water Use.......... page 14
California Appeals Court Affirms$445,005 Attorney Fee AwardIn Water Policy Case ................................... page 15
New California Law RegulatesGroundwater Resources................................ page 16
OklahomaOklahoma City Rural Water TurfDispute Set For Trial Nov. 4In Federal Court .......................................... page 24
New YorkOld Water-For-Power Pact Still Valid,New York Justice Rules................................ page 25
UtahUtah Environmental Group AppealsWater Rights For Green RiverNuclear Plant ............................................... page 27
South CarolinaSouth Carolina Residents: State’s SurfaceWater Law Is UnconstitutionalTaking.......................................................... page 27
ArizonaArizona Water Director Denies ProtestsOf Salt River Project Water Permits............. page 28
MEALEY’S Water Rights Law Report Vol. 1, #1 October 2014
Cite as Mealey’s Water Rights Law Report, Vol. 1, Iss. 1 (10/14) at p.___, sec.___. 3
News
In Water Rights Case,Justice Breyer Asks States:‘Can You Work This Out?’WASHINGTON, D.C. — Listening to argumentsby Kansas about Nebraska’s violation of a 2006 Re-publican River water rights settlement, U.S. SupremeCourt Justice Stephen G. Breyer on Oct. 14 askedNebraska’s lawyer: ‘‘Is there any chance that you allcould work this out?’’ (State of Kansas v. State ofNebraska, et al., No. 126, Original, U.S. Sup.).
(Transcript available. Document #95-141023-017T.)
In a case of original jurisdiction, both Kansas andNebraska filed exceptions to a special master’s re-commendation last year that Nebraska pay Kansas$5.5 million for violating the 2006 Final SettlementStipulation and the 1943 Republican River Compact.In addition, the special master, Judge William J. Kay-latta Jr. of the First Circuit U.S. Court of Appeals, saida mistake in the water accounting procedures of the2006 settlement should not be reformed.
Kansas says the Supreme Court should augment the re-medies for Nebraska’s ‘‘knowing violations’’ of the com-pact to ensure future compliance by Nebraska and thatthe parties should stick to agreed accounting procedures.Nebraska says that Kansas should not be awarded $1.8million over and above actual damages as disgorgementand that the accounting procedures need to be reformed.
During arguments that included the U.S. Solicitor Gen-eral’s Office, the Supreme Court grappled with whetherdisgorgement is an appropriate remedy for a violationthat is not willful and whether the settlement agreementis a contract that should undergo rescission rather than‘‘reformation.’’
‘Couldn’t Know Less About It’Justice Breyer told Nebraska Chief Deputy AttorneyGeneral David D. Cookson: ‘‘But this part about the
accounting, my instinct is that farmers and otherwho use the water have to know, and it hurts themwhen another five years goes by without anybodyunderstanding what the procedure is.’’
‘‘It looks as if what you’re facing are nine people — andI’m not speaking for the other eight, I’m just speakingfor myself — who couldn’t know less about it, all right,and we’re supposed to decide whether some systemhere is going to work or not,’’ Justice Breyer said.‘‘And that can be another five years. Is there any chancethat you all could work this out?’’
Cookson said that what the special master presented‘‘is not something that requires five years to workout.’’ Cookson said that beyond contract principles, itis appropriate, as the Supreme Court did in Texas v.New Mexico (462 U.S. 554 [1983]), to ‘‘conform theterms of the accounting procedures to the final settle-ment so that they are consistent with both the com-pact and the final settlement stipulation.’’
5-Run Solution
Justice Sonia Sotomayor questioned why the partiesdid not discuss Nebraska’s ‘‘five-run solution’’ duringnegotiations. ‘‘And if you didn’t put forth an alter-native, why shouldn’t we accept the special master’sjudgment on the [five-run solution]?’’ she asked KansasSolicitor General Stephen R. McAllister.
Justice Antonin Scalia questioned whether disgorge-ment is a proper remedy if Nebraska’s compact vio-lation was not found by the special master to beintentional. Justice Scalia challenged Assistant U.S.Solicitor General Ann O’Connell to cite cases to sup-port disgorgement for what the special master called‘‘conscious wrongdoing.’’
O’Connell pointed to a contract provision in the Re-statement of Torts. Justice Scalia said, ‘‘I don’t think
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the Restatement can change our law by just sayingsomething by consensus of law professors.’’
O’Connell also admitted that disgorgement for anunintentional violation is ‘‘novel.’’
Contract Or Settlement?Justice Anthony M. Kennedy also questioned if thecourt should apply principle of contract law. He saidthe agreement in question was reached during litigationand is now closed.
Cookson said the technical appendix to the agreementtreats the issue ‘‘more like an ongoing matter.’’
Justice Samuel A. Alito Jr. questioned where the specialmaster’s $1.8 million figure in the disgorgement calcu-lation came from. O’Connell said that ‘‘is pretty muchunexplained.’’ Justice Elena Kagan also questioned howthe disgorgement figure was arrived at.
Claim, CounterclaimIn 2010, Kansas filed a petition with the SupremeCourt seeking a remedy to Nebraska’s alleged breachof the Final Settlement Stipulation and the RepublicanRiver Compact. Nebraska denied Kansas’ claims andfiled a counterclaim asking the Supreme Court to cor-rect a mistake in accounting procedures under the 2006agreement.
In 2011, the Supreme Court appointed Judge Kaylattato serve as special master. In November 2013, JudgeKaylatta submitted his report.
The special master recommended that the SupremeCourt declare that in 2005 and 2006, Nebraska brea-ched the 1943 Compact by consuming an excess 70,869acre-feet of water. Judge Kaylatta recommended that thehigh court enter judgment in favor of Kansas for $5.5million.
The special master also recommended that the courtdeny Kansas’ other claims for relief, including that Ne-braska be found in contempt of court. He also recom-mended that the court order the reform of accountingprocedures in the Final Settlement Stipulation to cal-culate water usage from the Republican River Basin.
States File Exceptions
Kansas, Nebraska and Colorado filed exceptions to thespecial master’s report.
Kansas says the Supreme Court should augment theremedies for Nebraska’s ‘‘knowing violations’’ of thecompact to ensure future compliance by Nebraska. Itsays the court should also order Nebraska to complywith the compact and final settlement with the highcourt retaining jurisdiction for enforcement.
In addition, Kansas says the Supreme Court shouldorder Nebraska to disgorge a substantial portion of itsgains from its ‘‘knowing Compact violations.’’
Finally, Kansas says the Supreme Court should notchange the accounting procedures contained in theFinal Settlement Stipulation. The state says that theaccounting procedures were the result of lengthy nego-tiations and that there was no ‘‘mutual mistake.’’
Damages Calculation Questioned
Colorado took exception to the special master’s recom-mendation that a damages calculation take into accountNebraska’s gain.
In its exceptions, Nebraska said Kansas should not beawarded $1.8 million over and above actual damagesas disgorgement of Nebraska’s gain over Kansas’ loss.
Finally, Nebraska took exception to the special master’sfinding that it ‘‘knowingly failed’’ to comply with theRepublican River Compact.
Federal Government AmicusIn its April 7 amicus curiae brief, the United Statedurged the court to adopt the special master’s recom-mendations and to reform the Republic River CompactAgreement accounting procedures. The governmentsaid disgorgement by Nebraska is an appropriate
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remedy to ensure compliance with a compact appor-tioning water of an interstate stream.
The government said partial disgorgement is justifiedbecause of Nebraska’s remedial efforts.
The case originated in 1998 and was resolved through astipulated settlement in 2003. Kansas filed its currentpetition in 2010.
CounselKansas is represented by Attorney General DerekSchmidt and Jeffrey A. Chanay, Christopher M. Gru-newald, Burke W. Griggs, Bryan C. Clark and McAll-ister of the Kansas Attorney General’s Office in Topeka,Kan., and Tom W. Hampton of the University of Kan-sas in Lawrence, Kan.
Nebraska is represented by Attorney General Jon Brun-ing, Justin D. Laverne and Cookson of the NebraskaAttorney General’s Office in Lincoln, Neb., and SpecialAttorneys General Donald G. Blankenau and ThomasR. Wilmoth of Blankenau Wilmoth Jarecke in Lincoln.
Colorado is represented by Attorney General John W.Struthers, Solicitor General Daniel D. Domenico andAssistant Attorney General Scott Steinbrecher of theColorado Department of Law in Denver.
The United States is represented by Solicitor GeneralDonald B. Verrilli Jr., Acting Assistant Attorney Gen-eral Robert C. Dreher, Deputy Solicitor General EdwinS. Kneedler, Keith E. Saxe, James DuBois and O’Con-nell of the U.S. Justice Department in Washington. �
U.S. Tells High Court ToHold Off Before Taking OnFlorida-Georgia Water DisputeWASHINGTON, D.C. — The federal governmenton Sept. 18 said the U.S. Supreme Court should denya petition by the State of Florida to resolve a long-running water dispute with Georgia and wait untilthe U.S. Army Corps of Engineers has finished up-dating its Master Water Control Manual (Master
Manual) for federal water projects in the Apalachicola-Chattahoochee-Flint (ACF) Basin (State of Florida v.State of Georgia, No. 142, Original, U.S. Sup.).
In October 2013, Florida filed a motion for leave tofile a complaint of original jurisdiction with theSupreme Court. Florida alleges that Georgia’s storageconsumption of water from the ACF Basin has harmedFlorida’s ecosystem and economy, including its oysterindustry.
Florida says that Georgia’s water consumption isexpected to double by 2040. It asks the SupremeCourt to equitably apportion the waters of the ACFBasin and to cap Georgia’s water uses at 1992 levels.
Georgia: Action Is Premature
In its January opposition, Georgia says Florida’s com-plaint is premature because of inadequate water releasesfrom the Woodruff Dam by the Corps of Engineers. Itsays the Corps is currently determining new flows forthe future.
(Georgia opposition available. Document #95-141023-014B.)
In addition, George says that Florida has not allegedsufficient injury to warrant the high court’s originaljurisdiction. It says damages to Florida’s oyster industrywere caused not by low water flows from the Apala-chicola River but from drought and overharvesting.
In March, the Supreme Court invited the solicitorgeneral to express his views.
Wait For Corps’ Master Manual
‘‘Florida has pleaded an interstate water dispute ofsufficient importance to warrant this court’s exerciseof its original jurisdiction, and no other judicialforum is suitable for resolving the overall contro-versy,’’ the solicitor general writes. ‘‘Practical considera-tions, however, weigh against the court’s resolution of
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Florida’s claims before the Corps has completed itsprocess of updating the Master Manual for the federalprojects in the ACF Basin.’’
‘‘The Court accordingly should deny Florida leave tofile its complaint without prejudice to refiling after theCorps has issued its revised Master Manual,’’ the Soli-citor General continues. ‘‘In the alternative, the Courtshould grant Florida leave to file, but stay or provide fortailoring of any further proceedings until the Corps hasissued the revised Master Manual. The United Statesrecommends the former disposition.’’
The Supreme Court has listed the petition for discus-sion at its Oct. 31 conference.
CounselFlorida is represented by Christopher M. Kise andMelissa B. Coffey of Foley & Lardner in Tallahassee,Fla., Donald G. Blankenau and Thomas R. Wilmothof Jarecke in Lincoln, Neb., Attorney General PamelaJo Bondi, Solicitor General Allen Winsor and JonathanGlogau of the Office of Attorney General in Tallahasseeand Matthew Z. Leopold of the Florida Department ofEnvironmental Protection in Tallahassee.
Georgia is represented by Seth P. Waxman, PaulR.Q. Wolfson, Christopher E. Babbitt, Joshua M. Salz-man and Daniel Aguilar of Wilmer, Cutler, Pickering,Hale & Dorr in Washington, Attorney General SamuelS. Olens of the Georgia Department of Law in Atlantaand Special Assistant Attorneys General ChristopherLandau, Craig S. Primis, K. Winn Allen and SarahHawkins Warren of Kirkland & Ellis in Washington.
The United States is represented by Solicitor GeneralDonald B. Verrilli Jr., Acting Assistant Attorney Gen-eral Sam Hirsch, Deputy Solicitor General Edwin S.Kneedler, Assistant Solicitor General Ann O’Connell,Keith E. Saxe, James J. Dubois and Michael T. Gray ofthe U.S. Justice Department in Washington. �
U.S. Supreme Court AsksSolicitor General’s View OnMiss.-Tenn. Water DisputeWASHINGTON, D.C. — The U.S. Supreme Courton Oct. 20 asked the solicitor general for his views on
Mississippi’s renewed complaint that Tennessee isunlawfully taking Mississippi’s underground water forthe City of Memphis, Tenn. (State of Mississippi v.State of Tennessee, et al., No. 143, Original, U.S. Sup.).
On July 6, Tennessee filed a complaint of originaljurisdiction with the Supreme Court against Tennessee,Memphis and the Memphis Light, Gas and WaterDivision. Mississippi alleges that since 1985, the def-endants have been mechanically extracting ground-water from Mississippi to supply Memphis.
Mississippi alleges that Tennessee is taking water froman underground sandstone geological formation knownas the Sparta Sand. It says the U.S. Geological Surveyin 1965 determined that the Memphis Sand Aquiferis supplied in large part by the Sparta Sand.
As a result of Tennessee’s taking, Mississippi said thereis a substantial drop in pressure and a correspondingdrawdown of stored underground water in the SpartaSand. That, in turn, has created a hydrologic featurecalled a ‘‘cone of depression.’’
Past Efforts Failed To ResolveMississippi alleges that since 1985, Tennessee has takenmore than 252 billion gallons of water from Missis-sippi. Mississippi says that it has attempted to addressthe issue several times but that the defendants haverefused to participate.
Mississippi notes that it unsuccessfully litigated theissue in Hood, ex rel. Mississippi v. City of Memphis(533 F. Supp.2d 646 [N.D. Miss. 2008], aff’d, 570F.3d 625 [5th Cir. 2009], cert. denied, Mississippi v.City of Memphis, 559 U.S. 901 [2010]).
The Supreme Court is asked to exercise original juris-diction over a dispute between states, to declare whoowns the disputed groundwater and to order the def-endants to pay damages or restitution.
Defendants: Deny For Same ReasonIn their Sept. 5 opposition, the defendants say theSupreme Court should deny leave to file the complaintfor the same reason it denied Mississippi’s 2009attempt to file an original jurisdiction complaint against
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the Memphis Light, Gas and Water Division. They saythe new complaint rests on the same territorial propertyrights theory that the court rejected in 2009.
The defendants say the high court in 2009 correctlyrejected Mississippi’s argument that a state owns inter-state waters within its borders. They said the court alsocorrectly rejected Mississippi’s argument that equitableapportionment does not apply to groundwater sourcessuch as the aquifer in question.
In addition, the defendants say Mississippi’s claims arebarred by preclusion. They say the Fifth Circuit U.S.Court of Appeals, in a 2009 ruling in a case involvingthe same issue, rejected the argument that Mississippiowns the portion of the aquifer located within its borders.
In its Sept. 24 reply brief, Mississippi says its claimsdo not fall under the court’s equitable apportionmentjurisdiction. Instead, it says they fall under the court’sjurisdiction to protect each state against another’sencroachment on its retained territorial sovereignty.
No Equitable ApportionmentMississippi says equitable apportionment does notapply to groundwater, which under natural conditionsis an intrastate natural resource. The fact that the com-mercial wells pumping water out of Mississippi arephysically located in Tennessee is irrelevant to claimedviolations of retained sovereignty, Mississippi says.
Decisions by lower courts, Mississippi says, did not andcannot establish equitable apportionment as the state’sonly remedy.
Mississippi is represented by Attorney General JimHood, Assistant Attorney General Geoffrey C. Mor-gan, George W. Neville, Harold E. Pizzetta III andAlison E. O’Neal of the Attorney General’s Office inJackson, C. Michael Ellingburg of Daniel, Coker, Hor-ton & Bell in Jackson, Larry D. Moffett of DanielCoker in Oxford, Miss., John W. ‘‘Don’’ Barrett andDavid M. McMullan Jr. of the Barrett Law Group inLexington, Miss., George B. Ready of George B. Ready
Attorneys in Hernando, Miss., and Charles Barrettof Charles Barrett P.C. in Nashville, Tenn.
The Tennessee defendants are represented by Tennes-see Attorney General Robert E. Cooper Jr., ActingSolicitor General Joseph F. Whalen and Deputy At-torney General Barry Turner of the Attorney General’sOffice in Nashville and David C. Frederick, Derek T.Ho and Joshua D. Branson of Kellogg, Huber, Hansen,Todd, Evans & Figel in Washington. �
High Court Asked If EndangeredFish Trumps EconomicHarm To California Water UsersWASHINGTON, D.C. — Three California farmson Sept. 30 petitioned the U.S. Supreme Court tooverturn a circuit court opinion that they say protectsan endangered species of fish at the expense of agricul-tural water users (Stewart & Jasper Orchards, et al. v.Sally Jewell, et al., No. 14-377, U.S. Sup.).
(Petition available. Document #95-141023-022B.)
In their petition for a writ of certiorari, Stewart & JasperOrchards, Arroyo Farms LLC and King PistachioGrove ask the high court to overturn the 2-1 Marchruling by a panel of the Ninth Circuit U.S. Court ofAppeals in San Luis & Delta-Mendota Water Au-thority v. Jewell (No. 11-15871, 9th Cir.; 747 F.3d581; 2014 U.S. App. LEXIS 4781). The rulingincluded two partial concurrences and partial dissents.The court denied a motion for an en banc rehearing.
The three petitioners were part of a nine-case appealin which agricultural water users and various Californiawater authorities challenged a federal biological opinionthat put the delta smelt on the endangered species listand restricted the use of water from the fish’s habitat.The original plaintiffs sued the federal governmentin the U.S. District Court for the Eastern District ofCalifornia, arguing that the federal government violatedthe Endangered Species Act and the AdministrativeProcedure Act by failing to determine if a reasonableand prudent alternative is economically feasible.
Listing Reduced Water PumpingThe petitioners say that as members of local water dis-tricts, they rely on contractual water deliveries from
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the federal Central Valley Project and the CaliforniaState Water Project. They say large pumping stationsat the Sacramento-San Joaquin Delta draw fresh waterand pump it to reservoirs.
The projects’ pumps also draw in various aquaticspecies, including the delta smelt. They say that startingin 1993, the federal government listed the smelt asthreatened and designated a large area of the delta asa critical habitat for the fish.
The Endangered Species Act prohibits any person orentity from taking a listed species without authori-zation, the petitioners note. They say that U.S. Fishand Wildlife Service has interpreted its regulation anddefined a ‘‘reasonable and prudent alternative’’ to pro-tecting the delta smelt.
‘Disastrous Consequences’
By complying with regulations to decrease pumpingwater from the delta smelt’s habitat, the petitioners saycompliance has had ‘‘disastrous consequences,’’ includ-ing lost permanent crops, fallow farmland, layoffs and‘‘destruction’’ of farming businesses.
The Eastern District Court partially invalidated thebiological opinion of the Fish and Wildlife Service. Itfound the agency violated the Endangered Species Actand the Administrative Procedure Act by failing toexplain how its proposed ‘‘reasonable and prudent alter-native’’ is economically feasible.
The Fish and Wildlife Service and environmental inter-venors appealed. In reversing the District Court, theNinth Circuit panel said it was constrained by theSupreme Court’s Hill decision (Tennessee ValleyAuthority v. Hills [U.S. 158 (1978)]) and said theFish and Wildlife Service is due deference in its deci-sion making.
The Ninth Circuit also held that the ‘‘reasonable andprudent alternative’’ in the biological opinion is consis-tent with the Endangered Special Act and the Admin-istrative Procedure Act.
‘Absolves’ Agency Explanation?‘‘The Ninth Circuit decision threatens the water supplyfor millions of domestic and agricultural users,’’ the peti-tioners write. ‘‘It upends basis administrative law by
absolving an agency of any duty to explain or supportits legally mandated determinations, so long as the legalobligation derives from a ‘definitional’ provision.’’
The petitioners go on to say that the Ninth Circuitruling ‘‘authorizes the federal agencies charged withadministering the Endangered Species Act to imposedraconian limitations on productive activity in thename of species preservation without any regard foreconomic consequences.’’ They say the Ninth Circuit’sruling conflicts with the Fourth Circuit’s ruling inDow AgroSciences LLC v. National Marine FisheriesService (707 f.3d 462 [4th Cir. 2013] ‘‘and furtherexposes a longstanding Circuit split over whether anhow to apply judicial deference to an agency’s inter-pretation of its own regulations.’’
The petitioners say the Ninth Circuit ruling under-scores the need for the Supreme Court to overrule itsdecision in Hills, which says federal agencies arerequired to protect species and their habitat ‘‘whateverthe cost.’’ The plaintiffs say Congress has subsequentlyamended the act to add ‘‘reasonable and prudent alter-native’’ framework.
Does Agency Define Its Rules?
The petitioners say the Supreme Court should decide ifthe Administrative Procedure Act ‘‘excuses’’ an agency’sfailure to explain its decision making if a legal obligationderives a ‘‘definitional’’ provision. They also say thehigh court should determine whether the economicfeasibility of a ‘‘reasonable and prudent alternative’’depends on the economic consequences of the alternative.
The Supreme Court should also decide to what extentan agency’s interpretation of its own regulations isentitled to deference, they say.
Finally, the petitioners say the Supreme Court shouldoverrule Hill’s holding that the Endangered Species Actrequires federal agencies to make species preservationthe ‘‘highest of priorities’’ and to protect them and theirhabitat at ‘‘whatever the cost.’’
Counsel
The petitioners are represented by James S. Burling,M. Reed Hopper, Paul J. Beard II and Damien M.Schiff of Pacific Legal Foundation in Sacramento, Calif.
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The federal government is represented by SolicitorGeneral Donald B. Verrilli Jr. of the U.S. JusticeDepartment in Washington. �
Judge Rules On Calif.Dam Releases, But PartiesCan’t Agree On Final RemedyFRESNO, Calif. — Although a California federaljudge issued an opinion and order about federal waterreleases from a Trinity River dam, the federal gov-ernment and two California state water authorities onOct. 17 said they are unable to agree on language for afinal judgment (San Luis & Delta-Mendota WaterAuthority, et al. v. Sally Jewell, et al., No. 13-1232,E.D. Calif.).
In 2013, the San Luis & Delta-Mendota Water Au-thority and the Westlands Water District sued the fed-eral government and various agencies and officials in theU.S. District Court for the Eastern District of Californiato stop the U.S. Bureau of Reclamation from makingflow augmentation releases (FARs) of water from theLewiston Dam on the Trinity River. The releases wereto reduce the likelihood of an Ich (Ichthyophthirius mul-tifiliis) epizootic event that could lead to a fish die-offin the Lower Klamath River.
The plaintiffs alleged that the federal governmentviolated various provisions of the Central Valley ProjectImprovement Act (CVPIA) and the Reclamation Actof 1902. They said the federal government should havefirst prepared an environmental impact statementunder the National Environmental Policy Act or theEndangered Species Act.
The Hoopa Valley Tribe, the Yurok Tribe, the PacificCoast Federation of Fishermen’s Associations and theInstitute for Fisheries Resources were later joined asdefendant-intervenors.
Order Limited Release
The court issued a temporary restraining order againstrelease from the Lewiston Dam in excess of 450 cubicfeet per second for fishery purposes. The court laterlifted its order and denied a preliminary injunction.
In an amended complaint, the plaintiffs say the releasesalso exceeded a volume limit set by the Trinity RiverRecord of Decision (TRROD).
The parties filed cross-motions for summary judgment.
Release Violated 1 Law, Not Other
In an Oct. 1 opinion and order, Judge Lawrence J.O’Neill granted summary judgment to the defendants,finding that the federal government did not violate theCVPIA by implementing the dam releases (2014 U.S.Dist. LEXIS 140539). He denied the plaintiffs’ cross-motion on the same issue.
(Opinion and order available. Document #95-141023-025Z.)
The judge granted summary judgment to the plaintiffson the issue of whether the 1955 Trinity River DivisionCentral Valley Project Act provided authorization toimplement the 2013 releases.
Judge O’Neill said the question of remedies remain tobe addressed and said that since the releases are madeannually, he directed the parties to file a joint form ofjudgment consistent with his ruling.
Parties Can’t Agree
In an Oct. 17 joint report, the parties said they toldthe judge they are unable to agree on a joint form ofjudgment. The plaintiffs say their proposed judgmentprovides declaratory relief regarding the 1955 act, theCVPIA and the TRROD.
The plaintiffs say the government wants a judgmentlimited to stating whether the 1955 act and CVPIAauthorized the 2013 releases only.
Vol. 1, #1 October 2014 MEALEY’S Water Rights Law Report
The federal government says the judgment should bein two paragraphs. It says the first is a ruling that the1955 act did not authorize the 2013 releases.
The second proposed paragraph, the federal govern-ment says, is a ruling that they did not violate theCVPIA in implementing the 2013 releases.
The government says the plaintiffs’ proposed judgmentis beyond the scope of the lawsuit and the court’s find-ing. It says it never asserted that the TRROD providedauthority for the releases.
CounselSan Luis & Delta-Mendota and Westlands Water Dis-trict are represented by Daniel J. O’Hanlon, Rebecca R.Akroyd and Elizabeth L. Leeper of Kronick, Moskovitz,Tiedmann & Girard in Sacramento, Calif. Westlands isalso represented by Steven O. Sims and Dulcinea Z.Hanuschak of Brownstein Hyatt Farber Schreck inDenver.
The federal government is represented by Acting Assis-tant Attorney General San Hirsch, Anna K. Stimmeland Bradley H. Oliphant of the U.S. Justice Depart-ment in Washington, D.C. �
Summary Judgment Granted InChallenge Of Forest Service’sOK Of Gold-Mine ProjectSACRAMENTO, Calif. — A California federal judgeon Oct. 1 granted summary judgment to the U.S.Forest Service, finding among other things that thatplaintiffs opposed to a California gold-mining projectdid not show that the project’s water use will have adetrimental effect on the Salmon River watershed (Kla-math Siskiyou Wildlands Center, et al. v. United StatesForest Service, et al., No. 12-1676, E.D. Calif.; 20014U.S. Dist. LEXIS 141028).
(Opinion available. Document #95-141023-004Z.)
At issue is Wabuska Mining LLC’s High Bar PlacerMine Phase 2 Project, a gold-mining operation locatedin the Salmon River watershed in Northern California.The project calls for the mining operations to withdrawwater from the McNeal Creek via an electric pump andhoses.
The water draw is limited to 30 minutes per day and nomore than 6,000 gallons per day, and then only whenthe stream flow is above 4.5 cubic feet per second (cfs).
The operators of the project sought and receivedapproval from the Forest Service.
Approval ChallengedIn 2012, the Klamath Siskiyou Wildlands Centerand Klamath Forest Alliance sued the Forest Servicein the U.S. District Court for the Eastern Districtof California. The plaintiffs argued that the ForestService’s review and approval of the mining projectviolated the National Environmental Policy Act, theNational Forest Management Act, the 1872 MiningLaw and the federal Administrative Procedure Act.
Both parties moved for summary judgment. JudgeTroy L. Nunley denied the plaintiffs’ motion andgranted the defendant’s motion.
The plaintiffs argued that the water withdrawals from theSalmon River may be detrimental to fish species at themilling site. Judge Nunley said the plaintiffs producedno evidence that detrimental effects will occur.
Water Estimates Not InadequateAs to water withdrawals from the McNeal Creek,Judge Nunley said he did not find the Forest Service’smeasurements for flow rate in its environmental assess-ment (EA) to be inadequate.
The judge said there is insufficient indication at thispoint that the mining operator will fail to comply withthe project design features (PDFs), including the lim-itation on water withdrawals when stream flow is below4.5 cfs.
‘‘If the Proponent [Wabuska] is not able to draw waterfrom McNeal Creek between July and October, thenthat is the consequence of the PDFs established in theEA and the SIR [Supplemental Information Report],’’the judge wrote. ‘‘However, without more, the Courtwill not presume that the Project cannot comply withits plan of operations, and that Defendants’ approvalwas therefore arbitrary, capricious, unlawful, or resultedfrom an abuse of discretion.’’
In addition, Judge Nunley said project documents donot show that the access road to the mining sites, the
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water line and the haul route are within riparianreserves. He said the HYDRO-8 section of the PDFappears to partially address the plaintiffs’ concernsregarding ground-disturbing activities within riparianreserves.
Counsel
The plaintiffs are represented by Courtney B. Johnsonand Ralph O. Bloemers of the Crag Law Center inPortland, Ore., and Rachael M. Fazio of the JohnMuir Project in Big Bear City, Calif.
The Forest Service is represented by John Tustin of theU.S. Justice Department in Washington, D.C. �
New Environmental StudyOrdered By Judge, ButWater Bank Will Stay OpenSACRAMENTO, Calif. — A California state courtjudge on Oct. 2 ordered the state water department toconduct a new environmental impact report (EIR) forthe Kern Water Bank but denied a suggestion to shutdown the bank, saying that to do so in a historic droughtwould be ‘‘irresponsible’’ (Central Delta Water Agency,et al. v. California Department of Water Resources,et al., No. 34-2010-80000561; Rosedale-Rio BravoWater Storage District, et al. v. California Department
of Water Resources, et al., No. 34-2010-80000703,Calif. Super., Sacramento Co.).
In separate cases, plaintiffs challenged the state’s EIRfor the Monterey Plus Project under the CaliforniaEnvironmental Quality Act. The Monterey Plus Pro-ject is a reworking of a contract governing the operatingand management of the State Water Project long-termwater supply contracts.
The challenges were filed in the Sacramento CountySuperior Court; in March, the court ruled that the EIRwas defective in that it failed to adequate describe, ana-lyze and mitigate the potential impacts associated withthe anticipate use and operation of the Kern WaterBank, a 30-square-mile area for water conservationand storage. The court then scheduled a hearing todiscuss an appropriate remedy.
Judge Timothy M. Frawley said the case presents adilemma because the EIR came about 15 years afterthe California Department of Water Resources ap-proved and completed transfer of the Kern WaterBank lands to an authority. The Central Delta WaterAgency and other plaintiffs recommended voidingthe EIR.
Judge’s Remedies
In his March ruling, Judge Frawley said he would resistcalls to ‘‘unwind’’ what has been done.
In his Oct. 2 decision, Judge Frawley ruled:
� That the use and operation of the Kern Water Bankis severable from the remainder of the MontereyPlus Project.
� That the prior project approvals should remain inplace.
� That the court will not enjoin the use and operationof the Kern Water Bank pending compliance withthe California Environmental Quality Act.
� That the Department of Water Resources’ addi-tional environmental review should not be geogra-phically limited to the impacts of the Kern WaterBank on neighboring lands.
� That the entire EIR will be decertified.
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� That the Department of Water Resources will filean initial return indicating the steps it proposes totake to comply with the court’s writ.
� That the petitioners are the prevailing parties andcan seek attorney fees.
Judge Frawley said that suspending the Kern WaterBank operations is ‘‘contrary to the public interest’’ be-cause ‘‘The point of having a water bank is primarilyto provide water in times of shortage.’’ He noted that2013 was California’s driest year on record and 2014‘‘is no better.’’
‘Reckless And Irresponsible’‘‘A growing number of communities in California couldend up without any water,’’ the judge continued. ‘‘TheKern Water Bank is a nearly 20,000 acre undergroundreservoir capable of storing approximately one millionacre-feet of water (or about 326 billion gallons ofwater). For the court to order the Kern Water Bankto suspend operations at this time, under these condi-tions, would be reckless and irresponsible.’’
Shutting down the Kern Water Bank would also causeenvironmental harm to endangered and threatenedspecies, the judge added. He said suspending operationswould potentially result in 17,000 acres of land becom-ing fallow and creating ‘‘Dust Bowl’’ conditions.
The Central Delta Water Agency is represented byDante John Nomellini Jr. of Nomellini, Grilli &McDaniel, S. Dean Ruiz of Harris, Perisho & Ruizand John Herrick of the Law Office of John Herrick,all in Stockton, Calif.
The California Department of Water Resources isrepresented by Daniel M. Fuchs of the California Attor-ney General’s Office in Sacramento, Eric M. Katz andMarilyn H. Levin of the Attorney General’s Office inLos Angeles and Mary U. Akens of the Department ofWater Resources in Sacramento. �
California Appeals CourtWon’t Rehear Russian RiverWater Rights CaseSAN FRANCISCO — A California appeals court panelon Oct. 14 said it will not rehear a case in which it
found that the state water board used the wrong legalstanding in deciding if a county water district had for-feited its right to divert water from the Russian River(Millview County Water District, et al. v. State WaterResources Control Board, et al., No. A139481, Calif.App., 1st Dist., Div. 1).
(Opinion in Section F. Document #95-141023-020Z. Modified opinion and order denying rehear-ing available. Document #95-141023-021Z.)
In 2001, the Millview County Water District (Millview)began diverting water from the Russian River underauthority of a pre-1914 appropriative water right as-signed to it by Thomas Hill and Steven Gomes. Aftera citizen complaint and following an evidentiary hear-ing, the California State Water Resources Control Boardissued a cease-and-desist order (CDO) substantiallyrestricting Millview’s diversion, finding that the ap-propriative water right had been largely forfeited by aperiod of diminished use from 1967 to 1987.
Millview, Hill and Gomes filed a petition for a writ ofmandate in the Mendocino County Superior Courtrequiring the board to set aside its CDO. They arguedthat the board lacked jurisdiction to limit appropriationunder the pre-1914 water right and that the evidencedid not support the board’s finding of a forfeiture be-cause there was no evidence of a timely adverse claimof use.
Pre-1914 water rights are not subject to a permit orlicense issued by the board.
Board Used Wrong Standard
The trial court granted the writ. The board and inter-venor Sonoma County Water Agency appealed.
A panel of the First District California Court of Ap-peal on Sept. 11 affirmed the writ and directed theboard to set aside its decision, but on narrower groundsthan the trial court.
‘‘We conclude the Board does have jurisdiction under[California] Water Code section 1831 to issue a CDOprecluding excessive diversion under a pre-1914 rightto appropriate and the Board properly determined theoriginal perfected scope of the claim,’’ the panel wrote.
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‘‘We conclude, however, the Board applied an incorrectlegal standard in evaluating the forfeiture of Millview’sclaimed water right and, applying the proper legal stan-dard, the evidence before the Board was insufficient tosupport a finding of forfeiture,’’ the panel continued.‘‘We remand to the Board for reconsideration in light ofour decision.’’
Rehearing Petition
Millview petitioned the appeals court for a rehearing.It argued that original landowner J.S. Waldteufel couldhave perfected an appropriative right by use of water onriparian lands merely by expressing an intent that hisuse be considered appropriative. The panel said the casecited by Millview ‘‘contains no suggestion that a personwho already owns riparian land can acquire appropria-tive rights and contains no suggestion that a person whoalready owns riparian land can acquire appropriativerights by use of water on that land.’’
‘‘Such a holding would be entirely inconsistent with therules governing perfection of an appropriate right underCalifornia water law,’’ the panel concluded.
The panel denied the rehearing petitions of SonomaCounty, Gomes and Hill.
Although the panel corrected its original opinion infive places, it did not change its judgment.
Panel, Counsel
The opinions were written by Acting Presiding JusticeSandra L. Margulies. The other panel members wereJustices Robert L. Dondero and Kathleen M. Banke.
The board is represented by Attorney General KamalaD. Harris, Assistant Attorney General Gavin G. McCabeand Deputy Attorney General William Jenkins of theAttorney General’s Office in San Francisco. SonomaCounty Water Agency is represented by Alan B. Lillyand Andrew J. Ramos of Bartkiewicz, Kronick, & Sha-nahan in Sacramento, Calif.
Millview is represented by Christopher J. Neary andJennifer O’Brien of Neary & O’Brien in Willits, Calif.Gomes and Hill are represented by Jared G. Carter,Matisse M. Knight and Alexander C. Rich of Carter,Momsen & Knight in Ukiah, Calif.
Intervenor Mendocino County Russian River FloodControl and Water Conservation Improvement Dis-trict is represented by Michael R. Woods of the LawOffice of Michael R. Woods in Sonoma, Calif. �
Group Seeks Mandate For StateWater Board To StudyVentura’s Water UseSAN FRANCISCO — An advocacy group on Sept. 19asked a California state court to mandate that the stateWater Resources Control Board prevent unreasonableuse of water from part of the Ventura River (SantaBarbara Channelkeeper v. State Water Resources Con-trol Board, et al., No. CPF-14-513875, Calif. Super.,San Francisco Co.).
(Petition available. Document #95-141023-024C.)
In a petition filed in the San Francisco County SuperiorCourt, Santa Barbara Channelkeeper seeks a declara-tory judgment that the use of Reach 4 of the Ven-tura River by the City of Buenaventura (commonlyknown as Ventura) is unreasonable and in violationof Article X, Section 2 of the California Constitution,which requires that all waters in California be put tobeneficial use.
The petition also seeks a writ of mandate compellingthe California State Water Resources Control Boardto analyze Ventura’s pumping and diversion of waterfrom Reach 4 ‘‘based on existing conditions in theRiver, which have changed since Ventura began itsuse of the River, and to consider the impacts to publictrust resources resulting from Ventura’s use of Reach 4’’as required by the state constitution and the PublicTrust Doctrine.
Danger To Steelhead TroutThe petition says Ventura takes water from VenturaRiver under a pre-1914 claim and is not required toapply for or have permit or license to do so. It saysVentura’s water right was first put to use in 1870.
Santa Barbara Channelkeeper says that after stormdamage in 2005, the National Marine Fisheries Servicestated that resumed pumping and diversion in theFoster Park vicinity of Ventura River would likely
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jeopardize the continued existence of the SouthernCalifornia steelhead trout and its critical habitat. Thegroup says Venture did not perform the repairs butcontinued to operate five water production facilities,which it says threatens the steelhead trout.
Santa Barbara Channelkeeper is represented by DanielCooper and Caroline Koch of Lawyer for Clean WaterInc. in San Francisco. Counsel for the defendants havenot yet entered appearances. �
California Appeals CourtAffirms $445,005 Attorney FeeAward In Water Policy CaseSAN FRANCISCO — A California appeals court onOct. 15 affirmed a lower court’s award of $445,005 inattorney fees to an environmental group that success-fully challenged a state water board policy (Living Riv-ers Council v. State Water Resources Control Board,No. A138723, Calif. App., 1st Dist., Div. 5; 2014 Cal.App. Unpub. LEXIS 7321).
(Opinion available. Document #95-141023-019Z.)
The California State Water Resources Board adoptedthe Policy for Maintaining Instream Flows in NorthernCalifornia Coastal Streams as required by the CaliforniaWater Code Section 1259.4. The policy was to ensurethat the administration of water rights maintainsinstream flows needed to protect fishery resources.
In connection with the policy, the board certified asubstitute environmental document (SED) indicatingthat the policy may cause depletion of instream flowsbecause of increased groundwater extraction and use.
Group Sought MandateThe Living Rivers Council petitioned the AlamedaCounty Superior Court for a writ of mandate. Thecouncil alleged that the policy and SED violated theCalifornia Environmental Quality Act (CEQA, PublicResources Code 21000, et seq., California Code Re-gulations Title 23, 3775, et seq.) by failing to identify,analyze and disclose mitigation measures for the policy’senvironmental impacts.
The Superior Court granted the writ of mandate anddirected the board to vacate the policy.
The court also awarded Living Rivers $445,005in attorney fees under California Code of Civil Proce-dure Section 1021.5. Living Rivers had sought fees of$602,211.
The court reduced the fee award after calculating thefees lodestar amount and decreasing it to account forthe Living Rivers’ partial success. The court also applieda multiplier of 1.5 based on the contingent risk LivingRivers’ counsel assumed in taking the case.
Group Was SuccessfulThe board appealed to the First District Court of Appeal,arguing that Living Rivers was not a successful party,that the litigation did not confer a significant non-pecuniary benefit to the general public, that the litiga-tion was not necessary to achieve the results obtainedand that the lower court’s lodestar reduction was in-sufficient and the multiplier was an abuse of discretion.
The appeals court panel found that Living Rivers wasthe prevailing party under Section 1021.5.
‘‘Here, but for Living Rivers’s petition for writ ofmandate, the court would not have concluded thatthe Board failed to disclose there would be little or noCEQA review of the anticipated increased use of per-colating groundwater in four of the five affected coun-ties,’’ the panel wrote.
The panel was also not persuaded by the board’s argu-ment that Living Rivers did not raise the issue ofgroundwater delineations until it filed its trial brief. Itsaid there is no authority cited requiring Living Riversto raise an issue during the administrative process or inthe initial filing in order to be considered a prevailingparty.
The appeals court panel also rejected the board’s argu-ment that this is a ‘‘catalyst’’ case, rather than getting afavorable judgment. It said Living Rivers got judicialrelief.
Significant Public BenefitThe panel also found that Living Rivers’ litigation con-ferred a significant nonpecuniary benefit to the generalpublic. It said the public ‘‘will benefit significantlyfrom disclosure of additional information assessingthe legal framework for mitigating the expected in-crease in the use of percolating groundwater.’’
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In addition, the appeals panel said the necessity of pri-vate enforcement made the attorney fee award appro-priate. The panel said there were settlement discussionsbetween the parties but said that the trial court’s con-clusion was not an abuse of its discretion.
The amount of the fees awarded was also within the trialcourt’s discretion, the panel said. It noted that it rejectedthe argument that Living Rivers did not prevail.
The panel also disagreed with the board that the con-tingency risk was not a basis for the 1.5 multiplier.
Panel, Counsel
The opinion was written by Presiding Justice BarbaraJ.R. Jones. The other panel members were JusticesMark B. Simons and Terence L. Bruiniers.
Living Rivers is represented by Thomas N. Lippe ofthe Law Offices of Thomas N. Lippe in San Francisco.The board is represented by Anita E. Ruud and Wil-liam N. Jenkins of the Attorney General’s Office in SanFrancisco. �
New California Law RegulatesGroundwater ResourcesSACRAMENTO, Calif. — Calif. Gov. Edmund G.Brown on Sept. 16 signed legislation that will regulatefor the first time the state’s groundwater resources.
Brown signed Assembly Bill 1739 and Senate Bills1168 and 1319.
According to the governor’s office, the bills establish adefinition of sustainable groundwater management andrequire local agencies to adopt management plans forthe state’s most important groundwater basins. The lawsprioritize groundwater basins that are currently over-drafted and set the following timelines for implementation:
� By 2017, local groundwater management agenciesmust be identified.
� By 2020, overdrafted groundwater basins must havesustainability plans.
� By 2022, other high- and medium-priority basinsnot currently in overdraft must have sustainabilityplans.
� By 2040, all high- and medium-priority ground-water basins must achieve sustainability.
State Could InterveneIn addition, the legislation provides measurable ob-jectives and milestones to reach sustainability and givethe state government a role of limited interventionwhen local agencies are unable or unwilling to adoptsustainable management plans.
California is in the midst of what may be its longest andmost severe drought in the past 500 years. With surfacewater resources drying up, attention has focused onpreserving groundwater resources. �
Montana Supreme CourtUpholds Water Court’sDismissal Of Claim ObjectionHELENA, Mont. — An objector to a water diversionapplication failed to present evidence that the holderput the water to beneficial use, that the diversioninvolved a separate water source and that the holderabandoned its rights, the Montana Supreme Courtruled Sept. 16 (Donald C. Marks v. 71 Ranch, LP,No. DA 13-0489, Mont. Sup.; 2014 Mont. LEXIS589).
(Opinion in Section A. Document #95-141023-001Z.)
In 1982, Louise R. Galt, widow of Wellington Rankin,filed statements of claim for water rights held by 71Ranch LLP on Confederate Creek. The claim was forthe upper portion of Confederate Creek, about threemiles upstream of the former downstream diversionlocation.
Donald C. Marks, who also holds water rights onConfederate Creek and who is located between 71Ranch’s claimed upstream location and its formerdownstream location, objected to the place of use andto the point of diversion. Marks’ rights are junior to thecreek rights of 71 Ranch.
Water Master’s DecisionIn 2002, a water master dismissed Marks’ objection,finding that the points of diversion on Confederate
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Creek were changed between a 1940 decree (the Ran-kin decree) and July 1, 1973. He said Marks failed torebut 71 Ranch’s statement of claim.
Marks objected to the water master’s findings andrenewed his objections to the Montana Water Court.The court affirmed the water master’s findings andconclusions of law.
Marks appealed to the Montana Supreme Court. Heargued that the creek rights were not beneficially usedprior to July 1, 1973, that the upper and lower portionsof Confederate Creek have different water supplysources and that 71 Ranch abandoned its creek rights.
Commissioner’s Records Not ProbativeIn support of his first argument, Marks submitted cer-tain records of the Confederate Creek water commis-sioner that he said show that on specific dates, there wasnot more than 360 miner’s inches of water deliveredto the upstream location.
The Montana Supreme Court concluded that the watermaster did not misinterpret the effect of the water com-missioner records. ‘‘The records offer little to demon-strate the historical amount of water utilized at theupstream location,’’ the court wrote.
Since water commissioners are usually appointed whenthere is insufficient water flow to satisfy all rights to asource, the court said the records submitted by Marksmay only reflect flow during low-flow years. It saidthere was a complete absence of flow data for 18 years.
The court said the water master did not err by deter-mining that the water commissioner records ‘‘have littleprobative value concerning whether the Creek Rightswere beneficially used at the upstream location.’’
No 2-Source EvidenceMarks’ argument that the Confederate Creek has sepa-rate water sources was supported by the testimony ofthe 2002 water commissioner. But the Supreme Courtsaid that his testimony seemed to conflict with Marks’testimony.
The water master ‘‘properly afforded’’ weight to theRankin decree, which the court said ‘‘provided themost objective evidence of Confederate Creek’s char-acteristic prior to July 1, 1973.’’ ‘‘In light of the Rankin
Decree and in the absence of any reliable evidence thatthe upper and lower portions of the Confederate Creekare sourced separately, the Water Master correctly com-prehended the evidence,’’ the court wrote.
‘‘Substantial evidence supports the Water Master’s find-ings and our review of the record does not leave us witha definite and firm conviction that a mistake has beenmade,’’ the court continued.
No AbandonmentFinally, Marks argued that the creek rights were aban-doned because the water was not beneficially used andthe rights were dormant for more than 20 years. TheSupreme Court said Marks’ evidence is the same watercommissioner records he used for his argument that thewater was not beneficially used.
The Supreme Court said the water commissionerrecords are inadequate, standing alone, to prove nonuseof water and Marks’ abandonment argument ‘‘necessa-rily fails.’’
‘‘We are not left with a definite and firm convictionthat the Water Master reached a mistaken conclusion,’’the court said. ‘‘The Water Court appropriately deter-mined that Marks failed to present sufficient evidenceto demonstrate the Creek Rights were abandoned.’’
Justices, CounselThe opinion was written by Justice Jim Rice. JusticesJames Jeremiah Shea, Laurie McKinnon, Beth Bakerand Michael E. Wheat concurred.
Marks, of Helena, is self-represented. W. John Tietzand Mark R. Taylor of Browning, Kaleczyc, Berry &Hoven and John P. Poston, all of Helena, represent 71Ranch. �
Montana High Court RemandsSome Teton River Water RightsIssues To Water CourtHELENA, Mont. — The Montana Supreme Courton Oct. 7 affirmed in part and reversed in part a stateWater Court decision in water rights and diversionalong the Teton River (Eldorado Co-Op Canal Co.,et al., No. DA 13-0709, Mont. Sup.; 2014 Mont.LEXIS 608).
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(Opinion in Section C. Document #95-141023-005Z.)
Monte Giese, Steven Kelly and William Reichelt, knownas the Lower Teton joint objectors, and intervenor Pat-rick Saylor appealed an order from the Montana WaterCourt that amended a water master’s report. They ar-gued that the Water Court erred in amending the reportfinding that Saylor was a party to a historical waterexchange or substitution plan under which Saylor pro-vided the source of carriage water used to deliver waterto the Choteau Cattle Co. through the Bateman Ditch.
The objectors and Saylor also said the Water Courterred by including Choteau Cattle on the tabulationof water rights authorized to divert water from theTeton River into the Bateman Ditch under a waterrights exchange or substitution plan that was notclaimed by any person.
Finally, the objectors and Saylor said the Water Courterred in its decision that water rights in addition toChoteau Cattle can be diverted from the BatemanDitch.
Appropriation Rights
The objectors hold appropriation rights from the lowerTeton River in Choteau County, Mont. In 2011, theysued water commissioners appointed by the NinthJudicial District Court to administer certain waterrights diverted from the Teton River under a 1908water rights decree in Perry v. Beattie (Cause 371,9th Jud. Dist.).
The objector’s rights are not included in the Perrydecree. The objectors claimed that the water commis-sioners’ practice of diverting water out of the TetonRiver and into the Bateman Ditch harmed them bydepriving the river aquifer of recharge water.
The District Court dismissed the petition, and theobjectors appealed. The Montana Supreme Courtreversed and remanded with instructions to certify allappropriate issue to the chief water judge.
The Water Court combined the objectors’ claimswith another case. A water master issued a report, andafter objections were filed, a water judge amended thefindings of fact.
The objectors again appealed to the Supreme Court.
No Private Right
On the first issue, the high court said the Water Courterred by concluding that the Bateman Ditch divertto supply water to Choteau Cattle is a private rightheld by Saylor. It said that conclusion is contraryto the statutory roles of district courts and water com-missioners in administering and overseeing waterrights.
‘‘Whereas the Water Court invested ‘Saylor with theoption of delivering (the Choteau Cattle) claim . . .through the Bateman ditch, (but) he is not obliged todo so,’ that power rests in the District Court and itsappointed Water Commissioner,’’ the high court wrote.‘‘It is not Saylor’s right or duty to administer the waterrights of others any more than it is the right or duty
Access additional documents not found in this report.
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of Eldorado or any other upstream junior right holder.That is a management tool available to the DistrictCourt and its Water Commissioner, as it has been formany decades on the Teton River.’’
The court remanded the issue to the Water Court tomodify its decision to the extent that the water com-missioner, under the supervision of the District Court,may determine whether and when to use the BatemanDitch to deliver water to Choteau Cattle. It said that ifthe objectors then claim to suffer adverse effects, theycan seek relief from the District Court.
OK To List Water Rights
On the second issue, the Supreme Court said that theWater Court did not err in providing a listing of waterrights that can be diverted through the Bateman Ditch. Itsaid that since the use of the Bateman Ditch to deliverwater to Choteau Cattle is a management tool and not aright personal to Saylor, ‘‘it does not matter he claimedthe right to do so in the water right adjudication process.’’
‘‘We conclude that the Water Court acted properly inlisting the water rights that can be diverted through theBateman Ditch,’’ the court wrote.
On the third and final issue, the Supreme Court saidthe Water Court did not err when it declined to list twoother water rights in a tabulation of rights that can bediverted through the Bateman Ditch. It agreed with theWater Court that the two rights ‘‘had only rarely beendiverted down the Bateman Ditch.’’
In addition, the high court said the owners of the tworights were not involved in the appeal.
Court, Counsel
The opinion was written by Chief Justice Mike Mc-Grath. The other court members were Justices PatriciaCotter, Michael E. Wheat, Beth Baker and Jim Rice.
Giese, Kelly and Reichelt are represented by Stephen R.Brown of Garlington, Lohn & Robinson in Missoula,Mont. Eldorado Co-Op is represented by John E.Bloomquist of the Bloomquist Law Firm in Helena.
Saylor is represented by Michael J.L. Cusick andAbigail R. Brown of Moore, O’Connell & Fefling inBozeman, Mont. �
Idaho Supreme Court AffirmsDeed Correction To ClarifyLack Of Water RightsBOISE, Idaho — The Idaho Supreme Court on Sept.19 affirmed a lower court’s decision to correct a deedthat mistakenly transferred water rights (Jay Brown,et al. v. Augusto Sayoko Mimoto Greenheart, No.41189, Idaho Sup., Boise, August 2014 Term, 2014Opinion No. 100, Idaho Sup.; 2014 Ida. LEXIS 259).
(Opinion available. Document #95-141023-023Z.)
In 1988, Jay Brown and Christine Hopson-Brownacquired a 320-acre parcel of land in Elmore County,Idaho. In 2000, the Browns were granted two waterrights for the property.
In 2009, the Browns sold 60 acres of unirrigated prop-erty to Augusto Sayoko Mimoto Greenheart. TheBrowns did not intend to transfer their water rightsfor the acreage.
Greenheart acknowledged being told the land was ‘‘dry’’and bought it sight unseen. The purchase and saleagreement stated that water rights were included anddid not list an exclusion. However, a box about pay-ment for water rights was checked ‘‘not applicable,’’ anda seller’s disclosure form also stated that irrigationwater was not applicable.
Transfer Language DiscoveredIn 2007, Greenheart challenged her tax classificationas ‘‘irrigated agriculture,’’ arguing that it should be re-classified at a lower tax rate for dry-grazing.
In 2012, the City of Mountain Home, Idaho, offeredto purchase the Browns’ water rights for $2,000 peracre. It was discovered that the ‘‘appurtenances’’ lan-guage in the deed may have conveyed a portion ofthe water rights to Greenheart.
Later that month, Greenheart filed a notice of changeof water right ownership with the Idaho Departmentof Water Resources and the department revised itsrecords to reflect that change.
The Browns filed a quiet title complaint in 2012.Greenheart argued that the statute of limitations ex-pired. Both moved for summary judgment.
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Mutual Mistake
After a 2013 bench trial, the Elmore County DistrictCourt ruled that a mutual mistake was made when thewarranty deed included unqualified appurtenanceslanguage. It said the Browns were entitled to equitablerelief on the grounds of quasi-estoppel and waiver.
The District Court reformed the warranty deed to ex-clude and reserve the water rights to the Browns. Thecourt also found that the transaction was commercialand awarded attorney fees to the Browns.
Greenheart appealed.
Limitations Started With Claim
The Supreme Court said Idaho’s four-year statute oflimitations did not preclude the Browns’ quiet titleaction. It said the statute did not begin to run untilGreenheart claimed the water rights.
Likewise, the court said the finding of a mutual mistakewas not barred by a three-year statute of limitations. Itagreed that the statute did not begin to run until theBrowns were informed of the mistake by an attorney.
Greenheart also argued that the District Court erred infinding a mutual mistake because the Browns did notplead one. The Supreme Court found that the Brownssufficiently pleaded circumstances to show that a mis-take was at issue.
Claims Raised On Appeal
Greenheart’s claim that the Browns’ action was barredby quasi-estoppel or waiver was not pleaded before theDistrict Court, the Supreme Court said, and cannot beraised on appeal. It said the same applied to Green-heart’s claim of negligence.
The high court also agreed with the District Court thatthe purchase and sale agreement, as a whole, was am-biguous about water rights. It said the District Courtdid not err in examining extrinsic evidence to resolvethe ambiguity.
Finally, the Supreme Court said the District Courtwas correct in finding that the transaction was com-mercial and that the Browns are entitled to attorneyfees. It noted evidence that Greenheart leased theland for grazing.
Author, CounselThe opinion was written by Senior Justice JesseWalters, sitting pro tem, and the other four justicesconcurred.
Michael C. Creamer of Givens Pursley in Boise repre-sented the Browns. Victor Villegas of Borton Lakey LawOffices in Meridian, Idaho, represents Greenheart. �
N.M. Ranchers Denied TROAgainst Grazing Closure ForNew Endangered SpeciesALBUQUERQUE, N.M. — A New Mexico federaljudge on Oct. 9 denied issuance of a temporary restrain-ing order sought by 32 ranchers against the U.S. ForestService for closing off parts of two national forests fromcattle grazing in order to protect a new endangeredspecies (San Diego Cattlemen’s Cooperative Associa-tion, et al. v. Tom Vilsack, et al., No. 14-818, D. N.M.).
(Opinion and order in Section D. Document #95-141023-015Z.)
After an Oct. 3 hearing, Judge Robert C. Brack of theU.S. District Court for the District of New Mexicosaid he is ‘‘unconvinced that the temporary fences willcause the Plaintiffs irreparable injury.’’
‘‘Furthermore, the Court finds that the Plaintiffs’chances of succeeding on the merits and the balanceof equities tip in the Government’s favor,’’ he continued.
Lincoln, Santa Fe National ForestsOn Sept. 8, the San Diego Cattlemen’s CooperativeAssociation, ranchers and other rancher associationssued U.S. Agriculture Secretary Tom Vilsack andother federal officials in federal court, seeking a tem-porary restraining order and a preliminary injunction.The plaintiffs allege that the government violated thefederal National Environmental Policy Act (NEPA)and the Administrative Procedure Act in declaring theNew Mexico meadow jumping mouse an endangeredspecies and taking or proposing to erect fences to pro-tect the animal’s ‘‘occupied habitat’’ in the LincolnNational Forest and the Santa Fe National Forest.
(Complaint available. Document #95-141023-002C.)
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The plaintiffs say the government’s actions close ripar-ian areas in the Lincoln National Forest on which someof them have grazing rights. They also say the govern-ment proposed fencing on riparian lands in the Santa FeNational Forest on which they also have grazing rights.
The plaintiffs say that the defendants have ‘‘publicallyadmitted’’ that they have ‘‘made no scientific inquiry orassessment of the habitat or range conditions at theproposed locations for removing cattle grazing.’’ Theysay the government has not identified any statutory orregulatory provisions creating a duty to protect thejumping mouse’s occupied habitat.
No Environmental Reviews
The plaintiffs say the government failed to undertakeenvironmental reviews required by the NEPA.
‘‘In addition, the Forest Service has ignored the fact thatthe range management practices set forth in the grazingpermits are protective of the riparian areas as issue andthere is no evidence of impacts from cattle grazing onthese areas.’’
‘‘A recent inspection of the San Diego Allotment [in theSan Diego National Forest] indicated that the riparianareas in question are in excellent shape under currentrange management practices, with very little to no evi-dence of grazing by cattle or of impacts from grazing bycattle, although the cattle currently have uninhibitedingress and egress from the areas,’’ the plaintiffs say.
The Forest Service argued that its decision to erect tem-porary fences to prevent further habitat loss while ex-ploring a permanent solution is a categorical exclusionof the Administrate Procedure Act.
No Full NEPA Review
‘‘The Forest Service’s actions do not fit comfortably inthe administrative exclusions set forth in section (d),nor do they perfectly match the listed exclusions insection (e),’’ Judge Brack wrote. ‘‘But the Defendantshave a reasonable argument that temporary measures,lasting a year or less, do not have ‘a significant effect onthe human environment’ and thus are categoricallyexcluded from full NEPA review.’’
‘‘Moreover, the Plaintiffs have not made a ‘strongshowing’ that the decision was arbitrary and capricious,
or unrelated to rational decision-making,’’ the judgecontinued. ‘‘Looking at the high standard for pre-liminary injunctions, and at the heavy burden thePlaintiffs must ultimately bear, the Court feels thatthis prong tips in the Government‘s favor.’’
As to the irreparable harm requirement, Judge Bracksaid ‘‘Ultimately, the Court is not persuaded by anyof the three injuries that the Plaintiffs put forth. Theinjuries at issue in this action must relate only to thetemporary fencing — the final decisions to close habitatare not before the Court.’’
No Irreparable Harm Shown
‘‘The Court does not see how the temporary fencingwill injure the Plaintiffs in any way that cannot beremedied by economic damages,’’ he continued. ‘‘Thisfinding alone is sufficient to defeat the Plaintiffs’motion for a preliminary injunction.’’
Judge Brack also found that the ‘‘balance of equities’’favors the government.
While the Forest Service must consider ‘‘the full pano-ply of human and environmental impacts,’’ Judge Bracksaid ‘‘the only issue before the Court at this time iswhether the Plaintiffs met their heavy burden to showthat Defendants’ actions — all temporary in nature —must be stopped and reversed immediately, beforeholding a trial on the merits. Such an order would bean extraordinary remedy.’’
‘‘The Court is unconvinced that the temporary fenceswill cause the Plaintiffs irreparable injury,’’ the judgecontinued. ‘‘Furthermore, the Court finds that thePlaintiffs’ chances of succeeding on the merits andthe balance of equities tip in the Government’s favor.’’
Counsel
The plaintiffs are represented by Pete Domenici Jr.and Lorraine Hollingsworth of the Domenici LawFirm in Albuquerque. The Otero County Cattlemen’sAssociation is also represented by A. Blair Dunn ofAlbuquerque.
The government is represented by Andrew A. Smithand Karen Grohman of the U.S. Attorney’s Office inAlbuquerque and Stuart C. Gillespie of the U.S. JusticeDepartment in Washington, D.C. �
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Nevada Federal JudgeOKs Changes ToOrr Ditch DecreeLAS VEGAS — A Nevada federal judge on Sept. 30granted a motion to amend or alter the 1944 Orr DitchDecree, saying circumstances have changed and thecourt has authority to alter past decrees (United Statesof America v. Orr Water Ditch Co., et al., No. 3:73-cv-31, D. Nev.; 2014 U.S. Dist. LEXIS 139542).
(Order in Section B. Document #95-141023-003R.)
The Orr Ditch Decree was a final decree to resolve awater rights dispute. It incorporated the Truckee RiverAgreement, which provides a management frameworkfor the operation of a river system through the upstreamstorage and release of waters.
The United States, Nevada, California, the PyramidLake Paiute Tribe, the Truckee Meadows WaterAuthority, the Washoe County Water ConservationDistrict and the Town of Fernley, Nev., filed a motionasking the U.S. District Court for the District ofNevada to adopt the new Truckee River OperatingAgreement (TROA) and to largely supersede theTruckee River Agreement as the operating agreementfor the river system. The modifications would modifythe ‘‘Floristan Rates,’’ implement an interstate alloca-tion of the Truckee River and Lake Tahoe water basinsand address claims by the Pyramid Lake Paiute Tribe tothe remaining Truckee River water.
The motion was opposed by Truckee-Carson IrrigationDistrict, the City of Fallon, Nev., Churchill County,Nev., and numerous other respondents.
‘Extensive’ Changes Occurred‘‘Having considered all of the arguments, the Courtconcludes that it has authority to modify all provisionsof the Orr Ditch Decree, that legal and factual circum-stances have changed since the Orr Ditch Decree wasentered, that those changes warrant modification of theOrr Ditch Decree, and that the proposed modifica-tions, while complex and extensive, are suitably tailoredto the extensive changes that have occurred, whichchanges reflect and establish the need to modify theexisting operating framework for managing a complexriver system to provide a flexibility necessary to managewater rights for competing and complementary uses,
while also ensuring the protection of existing Decreedwater rights,’’ Judge Lloyd D. George wrote.
Judge George rejected the opposing parties’ argumentthat the court’s authority to modify the Orr DitchDecree is limited and modifications must be donewith the consent of all parties to the agreement. Thejudge said he has authority to modify the decree becausethe Truckee River Agreement ‘‘no longer remains acontract separate from the Orr Ditch Decree, but wasincorporated into the Decree.’’
The judge said that the moving parties submittedextensive evidence that there have been legal and factualchanges to the Truckee River system since the entryof the Orr Ditch Decree. Those changes include theconstruction of additional rivers and increased publicawareness to protect and preserve species in basinwaters.
Can Consider All Changes
Judge George said he is ‘‘not limited to consideringonly changed circumstances that are unexpected orsudden, or of recent vintage, in determining whetherthe changes that have occurred since the entry of theOrr Ditch Decree render compliance with the Decreesubstantially more onerous, or in determining if thecontinued enforcement of the Decree without modi-fication is detrimental to the public interest. Rather, indetermining whether modification is warranted, theCourt must consider all changed circumstances, includ-ing the totality of all changed circumstances (regardlessof whether some of those changed circumstances wereexpected, occurred long ago, or accrued slowly) sincethe signing of the Orr Ditch Decree.’’
The United States is represented by Devon L. McCuneof the U.S. Justice Department in Denver, Fred R.Disheroon and Stephen M. Macfarlane of the JusticeDepartment in Sacramento, Calif., Gregory W.Addington of the U.S. Attorney’s Office in Reno,Nev., and James B. Cooney of the Justice Departmentin Washington, D.C.
California is represented by Daniel M. Fuchs of theCalifornia Attorney General’s Office in Sacramento.Nevada is represented by Bryan L Stockton andMarta A. Adams of the Nevada Attorney General’sOffice in in Carson City, Nev.
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The Truckee Meadows Water Authority is repre-sented by Dale E. Ferguson and Gordon H. DePaoliof Woodburn & Wedge in Reno, Osha R. Meserve ofSoluri, Emrick & Meserve in Sacramento and Susan L.Oldham of Verdi, Nev.
Additional Counsel
The Pyramid Lake Paiute Tribe is represented by DonSpringmeyer and Christopher W. Mixson of Wolf,Rifkin, Shapiro, Schulman & Rabkin in Las Vegas.
The Town of Fernley is represented by Rebecca A.Harold of Fernley and Paul G. Taggart of Taggart &Taggart in Carson City, Nev.
Churchill County is represented by Laura A Schroederof the Schroeder Law Offices in Reno, Churchill Dis-trict Attorney Craig Mingay in Fallon and Rusty D.Jardine of the Truckee Carson Irrigation District inFallon. The City of Fallon is represented by MichaelF. Mackedon of Mackedon, McCormick & King andSteven King, both of Fallon.
The Truckee-Carson Irrigation District is representedby Michael J. Van Zandt of Hanson Bridgett in SanFrancisco and Lyman F. McConnell of LFM Ltd. inFallon. �
Pennsylvania Appeals CourtPartly Reverses SummaryJudgment Against Ski ResortHARRISBURG, Pa. — A Pennsylvania appellatepanel on Oct. 14 partially reversed summary judgmentthat ordered a ski resort to stop using water for snow-making from a pond and to close off a breach that letwater flow from a neighboring lake into the ski resort’spond (Village of Four Seasons Association, Inc. v. ElkMountain Ski Resort, Inc., No. 996 MDA 2013, Pa.Super., 2014 Pa. Super. LEXIS 3437).
(Opinion in Section E. Document #95-141023-018Z.)
Elk Mountain Ski Resort Inc. (Elk) draws water forsnowmaking in part from Elk Pond, which is connectedvia a breached berm to neighboring Village Lake. Village
Lake is owned by the Village of Four Seasons Associa-tion Inc. (Village), a vacation resort.
As part of a larger dispute between Elk and Village,Village moved in the Susquehanna County CommonPleas Court for an injunction to stop Elk from draw-ing water from Village Lake. The trial court grantedVillage’s cross-motion for partial summary judgment,enjoined Elk from drawing water and ordered Elk toclose the break between the two bodies of water.
Elk appealed, arguing the trial court erred in findingthat Village owned the water in Village Lake; in deny-ing that Village’s claims are barred by the reasonable-use doctrine of riparian law, by latches and by Elk’sirrevocable license; in finding that Elk could not estab-lish that it had a prescriptive right to use the water inquestion and that Village had indulged Elk’s use of thewater; and in ordering Elk to close the berm withoutstating how it was to do so.
Does Water Flow Or Stand?A panel of the Pennsylvania Superior Court foundthat Village failed to meet the summary judgment stan-dard because a factual dispute exists regarding whetherElk Pond and Village Lake are nonflowing bodies ofwater or part of a watercourse.
The panel said Elk has not waived its affirmativedefense of reasonable use. ‘‘The trial court erroneouslyheld that Elk needs to name the defense in new matter.This Court has held otherwise,’’ the panel said, citingSuperior Court case law.
Citing Elk’s pleadings, the panel said that Elk pleadedfacts to support an inference of reasonable use of waterfrom Elk Pond.
The panel found that elk ‘‘put forth sufficient evidenceto overcome Village’s cross-motion for partial summaryjudgment.’’ It cited testimony by Elk’s general managerthat Elk Pond is fed by or eventually flows into the EastBranch of Tunkhannock Creek.
Water Permits Not DeterminativeThe panel rejected Village’s argument that permitsissued by the Susquehanna River Basis Commissiondecided riparian rights. ‘‘The SRBC does not adjudicateproperty or riparian rights, and therefore its issuanceof permits is dispositive neither of the nature of Elk
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Pond as a watercourse nor of the reasonableness of Elk’suse of water under riparian law,’’ the panel wrote. ‘‘Itsissuance of permits, however, is sufficient to raise afactual dispute that Elk Pond and, therefore, VillageLake, are part of a watercourse that eventually drainsinto the Susquehanna River.’’
The panel expressed no opinion on whether Elk canmeets its burden but said ‘‘we find that factual issuesexist regarding (1) whether Elk Pond and Village Lakeare land-locked bodies of water or part of a flowingwatercourse; and (2) if the latter is true, whether Elk’suse of water is reasonable under riparian law.’’
The panel did agree with the trial court did not err inrejecting Elk’s claim that it had a prescriptive easement.Correspondence from 1980 shows Village consented toElk’s use of Village Lake, it continued.
‘‘Consent defeats a claim of adverse use,’’ the panelcontinued. ‘‘Therefore, Elk cannot show that its useof Village Lake was adverse for the requisite 21 years.’’
Doctrine Of Laches
The trial court also erred in ruling that the doctrineof laches did not apply, the panel said. ‘‘Elk in fact raisedthis defense in its defensive pleadings.’’
However, the panel said the error as to laches is harmlesssince the panel finds that Elk did not meet its burden toestablish a laches claim. ‘‘More to the point, Elk’s lachesclaim fails because, like its prescriptive easement claim,Village’s consent or indulgence for Elk’s use of water,as reflected in the 1980 letter, clearly stated Villagewas willing to work with Elk on water, providing itdoes not weaken Village’s dam, ruin its docks, or killVillage’s fish,’’ the panel said.
‘‘Elk was on notice since 1980 it did not possess anunfettered and indefinite right to rely upon Village’swater,’’ the panel continued. ‘‘Village, in effect, informedElk should Village suffer adverse consequences fromElk’s drawing of water from Village’s lake, it wouldobject. Therefore, Elk did not demonstrate Village satupon and delayed enforcing its rights to establish therequired prejudice to support its laches claim undercircumstances that would render enforcement ofVillage’s claim inequitable.’’
Irrevocable License?Finally, the panel said the trial court did not err infinding that Elk waived the affirmative defense of ir-revocable license because it failed to plead it in a newmatter.
‘‘Having reviewed the briefs and record, we concludethat the trial court erred in granting summary judgmentto Village on Elk’s claim that it is an upper riparianowner with the right of reasonable use of water fromVillage Lake for snowmaking,’’ the panel said. ‘‘The trialcourt correctly granted summary judgment on Elk’sremaining claims of prescriptive easement, laches, andirrevocable license.’’
The reversed portions of the trial court’s ruling wereremanded for further proceedings.
Panel, CounselThe opinion was written by Judge Victor P. Stabile.The other panel members were President Judge SusanPeikes Gantman and Judge Christine L. Donohue.
Village is represented by David C. Franceski and KarlS. Myers of Stradley, Ronon, Stevens & Young inPhiladelphia. Elk is represented by Paul K. Leary Jr.of Cozen O’Connor in Philadelphia. �
Oklahoma City Rural Water TurfDispute Set For Trial Nov. 4In Federal CourtOKLAHOMA CITY — A federal trial in which anOklahoma rural water district seeks to stop the Cityof Guthrie from supplying water to residents in itsclaimed territory is scheduled for trial on Nov. 4(Rural Water, Sewer and Solid Waste ManagementDistrict No. 1, Logan County, Oklahoma v. City ofGuthrie, et al., No. 05-786, W.D. Okla.).
In 2005, Rural Water, Sewer and Solid Waste Manage-ment District No. 1, Logan County (Logan 1) suedGuthrie, the U.S. Department of Agriculture andCommunity Program Loan Trust 1987 in the U.S.District Court for the Western District of Oklahoma.Logan 1 complains that Guthrie is providing waterservice to customers in an area outside city limits andin Logan 1’s territory.
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Logan 1 sues under Title 7 U.S. Code Section 1926(b),saying that as part of its indebtedness to the federalgovernment, it should be allowed to serve its servicearea free of competition. It says Guthrie and theGuthrie Public Works Department are violatingLogan 1’s rights.
Logan 1 seeks to enjoin the Guthrie defendants fromproviding water service to the disputed area, to forfeitcertain of its water lines to Logan 1 and to pay monetarydamages for lost water sales.
Can’t Serve Customers AnywayThe Guthrie defendants argue that the disputed areais well outside of Logan 1’s service area and that it didnot have the facilities or funds to service the customersat a reasonable rate. They say Logan 1 has not shownthat it made its water service available to customers inthe disputed area.
In addition, the Guthrie defendants say Logan 1 hasoften been unable to provide adequate water serviceto its existing customers.
Judge Vicki Miles-LaGrange will preside.
CounselLogan 1 is represented by Steven M. Harris andMichel D. Davis of Doyle, Harris, Davis & Haugheyin Tulsa, Okla.
The Guthrie defendants are represented by JamesC. Milton and Bryan J. Nowlin of Hall, Estill, Hard-wick, Gable, Golden & Nelson in Tulsa. �
Old Water-For-PowerPact Still Valid,New York Justice RulesALBANY, N.Y. — A 115-year-old agreement to con-vey water rights for a hydroelectric plant in exchange forcash and free electricity remains valid, a New York statecourt justice ruled Oct. 1 (Niagara Mohawk Power Cor-poration, et al. v. Allied Healthcare Products, Inc., et al.,No. 6516-09, N.Y. Sup., Albany Co.; 2014 N.Y. Misc.LEXIS 4338).
(Opinion available. Document #95-141023-006Z.)
In 1899, Anna and Charles Frisbee conveyed all theirwater rights and privileges on the Kinderhook Creekto Colonial Trust Co. The rights were acquired inconnection with the construction of a hydroelectricgeneration facility to supply the Albany & HudsonRailroad Co.
The Frisbees also conveyed up to 4 acres of land to therailroad for the erection of powerhouses and storageyards.
Water, Electricity Bargain
In return, the Frisbees received a substantial mone-tary consideration and a promise that they shall ‘‘atall times be furnished free of cost all the power neces-sary to running the mills now located on their landsand premises adjacent to said creed as the same arenow operated.’’ The electricity was to be supplieddirectly from the water in the creek or from thepower station.
The power agreement was affirmed in a 1903 settle-ment and was memorialized in a deed.
The Stuyvesant Falls Hydroelectric Plant was built, andownership eventually transferred to the Niagara MohawkPower Corp. The plant was taken out of service in1993; in 1999, it was sold to Erie Boulevard Hydro-power LLP, with Niagara retaining the 4-acre parcelused to distribute electricity to customers.
Ownership of the hydro plant changed again, and in2008 it was purchased by Albany Engineering Corp.The plant was returned to service in 2012.
Threat To Discontinue
The Frisbee Mill was first sold in 1939 and later madehospital gases. Eventually, the former Frisbee propertywas acquired by Allied Healthcare Products Inc.(AHP), which operated a chemical plant on the site.
In 2009, Niagara Mohawk, now doing business asNational Grid, threatened to stop supplying powerunder the covenant and filed a complaint in the AlbanyCounty Supreme Court, seeking a declaration that thepower covenant was not valid or enforceable. The courttemporarily enjoined Niagara Mohawk from changingthe covenant, and both sides moved for summaryjudgment.
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Justice Richard M. Platkin said that the 1903 settle-ment and the deed, taken together, provide proof ofintent by the parties that Niagara’s predecessor supplyFrisbee’s predecessors with free electricity. He said thatis so even though the word ‘‘successors’’ does not appearin any documents.
‘Touch And Concern’
The justice also said the affirmative covenant satisfiedthe requirement that it ‘‘touch and concern’’ the rele-vant property interest to a substantial degree to beenforceable at law. Justice Platkin said the power cove-nant ‘‘has been and remains closely tied to the owner-ship and use of AHP’s land.’’
In addition, the justice said the riparian rights allowelectricity to be generated by the creek’s water flowand the easement allows large penstocks to traverse along swatch of the AHP land to deliver water to the
power station. Although the 4 acres do not generatepower, the justice said the land has played a supportingrole in the hydro plant operation and the performanceof the power covenant.
The justice rejected Niagara Mohawk’s argument thatAHP has alternative sources of electricity that didn’texist at the time of the power covenant. He also rejectedits argument that electricity is no longer directly sup-plied to the AHP plant.
Covenant Unchanged
Justice Platkin said that intervening changes are in-sufficient to sever ‘‘this longstanding and continuingrelationship.’’
‘‘AHP’s ability to purchase electricity does not render asupply of free electricity unnecessary,’’ the justice wrote.‘‘Nor does it sever the strong connection betweenthe Power Covenant and the ownership and use ofAHP’s land.’’
Although the power covenant has no expiration,Justice Platkin said that does not render it invalid orunenforceable.
In addition, the justice said the idling of the AHPfacility from 2004 to 2008 is not proof of an intentionto permanently abandon the power covenant or man-ufacturing operations.
No Federal Preemption
Finally, the justice said that the power covenant is notpreempted by federal regulation of the power industry.He said the covenant is not a contract for the sale anddelivery of power, but instead is an affirmative covenantof power rights.
Allied Healthcare Products submitted detailed proofdemonstrating privity and was unchallenged.
Niagara Mohawk is represented by Stuart F. Klein ofBond, Schoeneck & King in Albany. Allied Healthcareis represented by Robert T. Schofield, Alan J. Goldbergand Vitaliy Volpov of Whiteman, Osterman & Hannain Albany.
Albany Engineering is represented by Matthew C.Hug of Troy, N.Y. �
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Vol. 1, #1 October 2014 MEALEY’S Water Rights Law Report
Utah Environmental GroupAppeals Water Rights ForGreen River Nuclear PlantSALT LAKE CITY — An environmental group onSept. 16 asked the Utah Court of Appeals to reviewthe state’s approval of two water rights change applica-tions in connection with a proposed nuclear powerplant along the Green River (HEAL Utah, et al. v.Kane County Water Conservancy District, et al., No.20140429, Utah App.).
(Brief available. Document #95-141023-016B.)
The Kane County Water Conservancy District filedtwo change applications. After conducting a hearing,the Utah state engineer approved the applications.HEAL Utah asked the Grand County District Courtto review the engineer’s decision, and the court issuedfinal judgment in favor of the engineer.
The power plant developer, Blue Castle Holdings, seeksto divert and use a total of 53,600 acre feet of water, upto a maximum of 75 cubic feet per second, from theGreen River.
HEAL Utah says all the water diverted in the changeapplications will completely divert the river system withno return flows to the Green River.
No Unappropriated WaterThe change applications were sought because theywould move the water diversions several miles up theGreen River.
HEAL Utah argues that the appellees have not demon-strated that the change applications meet the require-ments of Utah Code Annotated 73-3-3 and 73-3-8.The group says the latter requires that there be unap-propriated water in the source.
Because the applications seek to move the point ofdiversion several miles upstream of previously approvedlocations, it said the change in location represents a newappropriation of water on the Green River.
HEAL Utah says that based on river flow records in theGreen River and at the Green River Gauge, ‘‘there isinsufficient unappropriated water to support the diver-sions and used under the Change Applications when
the obligations under the [river] compacts and operat-ing plans are taken into account.’’
Endangered Species ImpactHEAL Utah says that the Green River is home tofour endangered species — the Razorback Sucker, theColorado Pikeminnow, the Humpback Chub and theBonytail Chub — and that the proposed diversionswill ‘‘unreasonably impact the endangered fish speciesby lowering flows in the river and increasing watertemperatures.’’
The group says the District Court abrogated theresponsibility of the state engineer under Utah CodeSection 73-3-8(b)(1) and instead conditioned ap-proval on participation in a consultation with theU.S. Fish and Wildlife Service as part of the NuclearRegulatory Commission permitting process. It sayscontrol of water rights ‘‘is squarely within the purviewof the states.’’
Utah law requires that change applicants demonstratethat water will be put to beneficial use and satisfiesseveral factors, HEAL Utah says. That includes thefinancial ability to complete proposed works.
Money, Permit, Contracts LackingThe group says Blue Castle Holdings estimated thatthe nuclear plant will cost between $18 billion and$22 billion, but it has to date raised only $17.5 million.In addition, it says that the Nuclear Regulatory Com-mission has not issued permits for the project and thatBlue Castle has no contracts for the power it willproduce.
In the meantime, the group says the water rights are‘‘tied up’’ and unavailable for any other long-termprojects.
HEAL Utah is represented by John S. Flitton andChristie Babalis of Flitton Babalis in Park City, Utah. �
South Carolina Residents:State’s Surface Water LawIs Unconstitutional TakingBARNWELL, S.C. — Five South Carolina riparianrights owners on Sept. 4 sued the state government to
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have the Surface Water Withdrawal Act of 2010 declaredunconstitutional (James Jefferson Jowers, Sr., et al. v.South Carolina Department of Health and Environ-mental Control, No. 2014-CP-06-322, S.C. Comm.Pls., Barnwell Co.).
(Complaint available. Document #95-141023-031C.)
James J. Jowers Sr. and four other South Carolina resi-dents say they each own property that borders variousrivers to which they each have riparian rights to watertherein. The plaintiffs say that under the South Caro-lina Surface Water Withdrawal Act of 2010, water usersmust either apply for a water use permit or, if they areagricultural users, register their water use rather thanseek a permit.
Under the act, the plaintiffs say they do not qualify forregistration of their water use.
Private-To-Private Taking
The plaintiffs say the act violates the U.S. and SouthCarolina constitutions by taking private property forprivate use. They say that rather than giving all riparianowners equal property rights, the act gives agriculturalusers superior rights.
The plaintiffs also say that as downstream users, theycannot challenge upstream agricultural water usebecause it is presumed to be a reasonable use of water.
In their second cause of action, the plaintiffs say the statehas taken their property rights without compensation.
Thirdly, the plaintiffs say the act violates South Caro-lina’s Public Trust Doctrine. They say the doctrineallows the state to transfer or dispose of trust assets,such as water rights, only to further navigation or ifthe transfer has a de minimis impact on public use ofwater.
State Loses Control
The act, the plaintiff say, gives registered agriculturalowners complete control of water in perpetuity and thestate cannot alter water amounts taken.
Finally, the plaintiffs say the act violates their right todue process under the Fifth Amendment to the U.S.Constitution.
The plaintiffs ask the court to declare that the act isunconstitutional and/or to compensate them for thetaking of their private property rights.
Counsel
The plaintiffs are represented by Amy E. Armstrongand Jessie A. White of the South Carolina Environ-mental Law Project in Pawleys Island, S.C.
South Carolina is represented by Marshall Taylor Jr.of the Department of Health and Environment inColumbia, S.C. �
Arizona Water Director DeniesProtests Of Salt River ProjectWater PermitsPHOENIX — Arizona’s director of water resourceson Oct. 1 denied the protests of a group of waterusers who he said have not shown that they will beharmed by approval of conforming water applicationsfor a 90-year-old Salt River reclamation project (In theMatter Salt River Valley Water Users’ Association, et al.,No. 13A-SW001-DWR, Ariz. Dept. Water Resources).
(Decision and order available. Document #95-141023-029X.)
In 2008 and 2010, the Salt River Valley Water User’sAssociation (SRVWUA) filed amendments to its origi-nal 1920 and 1921 applications for permits to constructnew dams, reservoirs and canals on the Salt and Verderivers within the Salt River Project federal reclamationproject. The amended applications were filed to con-form the original applications to the actual beneficialuses of water impounded by the dams.
The amended applications did not seek constructionof any new water storage facilities or the impoundmentof any additional water than historically stored.
Protests Filed
Water users within the Greenback Valley Ranch anda group referred to as the Lower Gila Water Users filedprotests to the amended applications. The latter groupconsists of Enterprise Ranch, the Paloma Irrigation
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and Drainage District and its landowner water rightholders and the Arlington Canal Co. and its landownerwater rights holders.
The protesters claim that the amended applicationsconflict with their prior vested water rights. They alsoclaim that the amended applications were not made inthe proper form and that they will not result in waterbeing put to beneficial use and will menace public safetyand public welfare.
In 2013, the Arizona Department of Water Resourcesgranted the amended applications. The Lower GilaWater Users appealed. After an administrative hearing,an administrative law judge affirmed some departmentdeterminations and found that the department erredin others.
The Lower Gila Water Users’ appeal was sustained inpart, and the draft permits were ordered to be rescinded.
Director’s DecisionWater Resources Director Michael J. Lacey acceptedthe administrative law judge’s finding that the am-ended applications do not conflict with the LowerGila Water Users’ vested water rights.
However, the director rejected the administrativelaw judge’s findings on rescinding the permits. He
found that the appellants failed to demonstrate thatthey will be adversely affected by the lower decisionand thus lack standing to appeal.
The director noted that the Lower Gila Water Usersdiversion point is more than 70 miles downstreamof the SRVWUA’s primary point of diversion at theGranite Reef Dam and that there are numerous in-flows and diversions between the two points.
The director also said there is evidence that in thelast 10 years, the amount of water available for diver-sion at the Gillespie Dam is very similar to what it wasin the 1920s.
Counsel
The Water Resources Department is representedby Janet L. Ronald and Nicole D. Klobas of the depart-ment in Phoenix.
The SRVWUA is represented by John B. WeldonJr., Mark A. McGinnis and Scott M. Deeny of Salmon,Lewis & Weldon in Phoenix.
The Lower Gila Water Users are represented by KeithL. Hendricks and Joshua T. Greer of Moyes, Sellers &Hendricks and Douglas C. Nelson of the Law Officeof Douglas C. Nelson, both in Phoenix. �
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