Central California/Nevada Report

Keith G. Wagner
Law Office of J. William Yeates

Interior Sued for Klamath River Water Management Plan

On Sept. 26, 2002, the Pacific Coast Federation of Fishermen’s Associations (PCFFA), joined by several environmental organizations and Congressman Mike Thompson, brought a suit in the Northern District of California to prevent the Department of Interior from carrying out its 10-year water-management plan for the Klamath Basin. PCFFA v. U.S. Bureau of Reclamation, No. C02-2006 SBA (N.D. Cal. amended complaint filed Sept. 26, 2002).

In the summer of 2002, the Bureau of Reclamation drafted and implemented the Klamath Basin Plan, releasing stored Klamath waters for irrigation use against the advice of fisheries experts and environmentalists. The result, so far, has been over 40,000 dead Chinook and Coho salmon in the Lower Klamath last fall. PCFFA’s lawsuit claims that the National Marine Fisheries Service biological opinion in support of the 10-year Plan does not provide enough water for the federally threatened Coho.

Supreme Court to Decide Corps’ Jurisdiction Over Intrastate Vernal Pools

On Dec. 10, 2002, the Supreme Court heard oral argument in Borden Ranch Partnership v. U.S. Army Corps of Engineers, 261 F.3d 810 (9th Cir. 2001), cert. granted, 122 S.Ct. 2355 (U.S. June 10, 2002) (No. 01-1243).

In 1993, a local developer purchased an 8,400-acre cattle ranch in the central valley near Galt, California, converting large portions of the ranch into vineyards. To accomplish the conversion, a process known as “deep ripping” was used, which consists of dragging a four to seven-foot-long metal prong through hardpan soil. As a result of the conversion to vineyards, significant vernal pools located on the site were destroyed. The Army Corps of Engineers subsequently brought an enforcement action under the Clean Water Act Section 404. In a 2-1 decision, the Ninth Circuit upheld the Corps’ jurisdiction and a fine to the developer of $500,000.

Borden Ranch argued that the Ninth Circuit’s ruling conflicted with the Supreme Court’s controversial 5-4 decision in Solid Waste Agency of Northern Cook County v. Corps of Engineers, 531 U.S. 159 (2001). In SWANCC, the Court held that the Corps cannot exercise jurisdiction over isolated, intrastate waters if the only basis for federal jurisdiction is the presence of migratory birds.

One member of the SWANCC majority, Justice Anthony Kennedy, recused himself in the Borden Ranchcase, leaving a 4-4 split of the SWANCCjustices to decide Borden Ranch. This proved significant as the Court affirmed the Ninth Circuit decision, stating “the judgment is affirmed by an equally divided court.”

State Court Declines to Temporarily Enjoin University’s Destruction of Vernal Pools

On Nov. 6, 2002, in San Joaquin Raptor/Wildlife Rescue v. Regents of the University of California(Ca. Ct. App., 5th Dist., No. F041622), California’s court of appeal refused to temporarily enjoin construction of the proposed University of California, Merced, located in a remote part of California’s southern central valley. The appellate court’s decision allows the University of California to move forward with construction activities “at its own risk,” pending the appellate court’s resolution of the case.

Although the UC Merced campus is planned on an abandoned golf course, the project has angered local farmers and environmentalists because the new city and other infrastructure required to support the campus will convert prime agricultural lands and endangered species’ habitats to urban use. According to the U.S. Fish and Wildlife Service’s (USFWS’s) biological opinion for the project, listed species that may be affected by the new campus and community include several vernal pool grasses and crustaceans, the valley elderberry longhorn beetle, the San Joaquin kit fox and the bald eagle.

In its lawsuit, San Joaquin Raptor/Wildlife Rescue has claimed that the Regents violated the California Environmental Quality Act (CEQA) in approving the UC Merced campus. CEQA is California’s analogue to the National Environmental Policy Act (NEPA). Unlike NEPA’s purely procedural mandate, however, CEQA substantively requires that California agencies, including the Regents, adopt all feasible alternatives and mitigation measures before approving any project that may have significant environmental impacts, including impacts to listed species.

Interior Abandons Red-Legged Frog Critical Habitat Designation

On Nov. 6, 2002, in Home Builders Association of Northern California v. Norton(D. C., No. 01-1291 (RJL)), District Court Judge Richard J. Leon entered an order setting aside the USFWS designation of over 3 million acres of critical habitat for California’s red-legged frog.

In December of 1999, as the result of a lawsuit filed by the Jumping Frog Institute and the Center for Biological Diversity, USFWS was ordered to designate critical habitat for the frog. In March of 2001, USFWS complied by designating over 3 million acres in California as critical habitat. The Home Builders Association and others then sued, claiming that USFWS had not adequately analyzed the economic impacts of the critical habitat designation, as required by the Endangered Species Act (ESA).

Judge Leon’s order in Home Builders accepts the terms of a consent decree negotiated between the Home Builders Association and Interior, calling for USFWS’s critical habitat designation to be set aside in its entirety (with the exception of certain U.S. Forest Service lands) until USFWS conducts a new economic analysis.

The Jumping Frog Institute and the Center for Biological Diversity intervened in the lawsuit and objected to the Home Builder’s negotiated agreement with Interior, arguing that the agreement’s procedures for the new economic analysis are flawed. The environmental organizations also requested that USFWS’s current critical habitat designation remain in place until revisions, if any, are formally made.

The court declined the environmental organizations’ request, citing Local 93 v. City of Cleveland 478 U.S. 501 (1986): “So long as a party is given the chance to ‘air its objections,’ as the intervenor-defendants were in this instance through both written briefs and oral argument before the Court, and the district court has determined that the settlement is fair and reasonable, a party’s lack of consent will not block the entry of the consent decree.”