Feds Defend Permanent Water Contracts to Benefit Agriculture

By Ken Lund CC BY-SA 2.0

SAN FRANCISCO (CN) — Defending the decision to give farm irrigation districts permanent access to low-cost, federally pumped water in California, a Justice Department lawyer urged a federal judge Thursday to flush a Native American tribe’s lawsuit against the endless entitlements.

The Hoopa Valley Tribe sued the U.S. Bureau of Reclamation in August, claiming the Trump administration’s conversion of 14 time-limited contracts for Central Valley Project water into permanent deals violated a host of federal laws. The contracts were made permanent in February. Another 26 agreements are in the process of being converted to permanent deals.

According to the tribe, the unending contracts do not prioritize water for Trinity River in-basin flows or require contractors to pay for fish restoration and wildlife preservation programs as mandated by a 1992 law, the Central Valley Project Improvement Act.

Without those protections, the tribe says more water could be diverted from the Trinity River to the Central Valley and have a “devastating impact on the fish, water and other environmental resources.”

Arguing in a virtual courtroom Thursday, Justice Department lawyer Thomas Scott Jeffrey argued the law that imposes those obligations does not pertain to permanent contracts because they are neither new deals nor contract renewals as defined by the law.

“It does not apply to the conversion of an existing contract into a no-term repayment contract,” he said.

Representing the Hoopa Valley Tribe, attorney Thane Somerville called that position “absurd.” He said Congress wanted the law to apply to all long-term contracts, which are defined as agreements with a term of 10 years or more.

“It was intended to protect the environment from the effects of long-term contracts,” Somerville said.

Somerville is with the firm Morisset Schlosser Jozwiak & Somerville in Seattle.

Congress passed the Water Infrastructure Improvements for the Nation Act in 2016. The law directs the Bureau of Reclamation to convert existing Central Valley Project water contracts into permanent deals if a contractor requests it.

But the 2016 law also states that it does not alter obligations imposed by other statutes, including requirements that contractors help fund environmental restoration and preservation programs for the Trinity River.

The failure to explicitly include those terms in the permanent water contracts violates the law, Somerville argued.

“The tribe is constantly forced to fight over water deliveries that they are entitled to under federal law, funding they are entitled to receive under federal law,” he said. “That’s why it’s so important to have specific provisions in the contracts that will bind the contractors to these terms that are required under federal law.”

Assuming the government was obligated to include those terms in its contracts, Jeffrey said the lawsuit should still be dismissed because the tribe lacks standing to sue. He said the tribe complains about a purely technical violation of law that has not caused it to suffer any real-world harm.

Somerville insisted the mere approval of contracts that flout laws designed to protect the tribe’s natural resources is a concrete injury.

“The Trinity River goes right through their lands,” Somerville said. “It has specifically affected their interests for decades.”

The Bureau of Reclamation also maintains that the lawsuit cannot move forward unless the water districts, whose contractual rights would be affected by any court decision, are added to the case. 

The tribe argues that because the contracts have not been validated under California state law, they are not in effect yet. The water districts are still operating under the terms of interim contracts, Somerville said.

The tribe further insists that the water districts are not necessary parties because the U.S. government is well suited to champion their interests in the lawsuit.

“The parties are adequately represented by the defendant in this case,” Somerville said.

On the bureau’s motion to transfer the case to the Eastern District of California where two similar lawsuits are pending, U.S. District Judge Richard Seeborg said he was inclined to deny that motion.

Beyond finding that the plaintiff’s choice of forum carries some weight, Seeborg cited a “judicial emergency” in the Eastern District of California as a factor that strongly supports keeping the case in San Francisco.

The Eastern District’s chief judge, Kimberly Mueller, declared a judicial emergency in March as the district faced a growing backlog of cases exacerbated by two judicial vacancies.

In the Fresno division, where the related lawsuits are pending, U.S. District Judge Dale Drozd issued a standing order in February stating he will not hold any trials or hearings on motions in civil cases until the situation improves.

“All the judicial efficiency arguments evaporate when you’re talking about the district where the transfer would be going to is in dire straits,” Seeborg said.

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