SAN FRANCISCO (CN) - Calling an appeal between California environmentalists and federal agencies over expired water contracts a "bizarre position," a Ninth Circuit panel Tuesday encouraged the parties to mediate the issue instead.
"This case is in a bizarre position - we're dealing with 2012 contracts that have already expired, we're told there are new ones with new environmental assessments," Circuit Judge Barry Silverman said. "On top of all that we have Mother Nature playing tricks with the drought."
Circuit Judge Richard Tallman added, "It just seems to me that this is the kind of problem that a really gifted mediator with willing parties, might be able to make a lot more headway than if you just keep filing lawsuits and we have to keep issuing rulings."
The "problem" involves an appeal over eight interim water contracts between farmers and the federal Bureau of Reclamation that expired in February 2014.
The often-sued Central Valley Project sends water to farmers and suppliers in the Central Valley through the bureau's maze of reservoirs and canals.
Appellant Pacific Coast Federation of Fishermen's Associations argued Tuesday that the federal government failed to do environmental impact statements and violated the National Environmental Policy Act by approving the interim contracts. The federation claims the government has repeatedly renewed two-year interim agreements with contractors and ignored the long-term environmental impacts on the Sacramento-San Joaquin Delta.
Tallman hounded Stephan Volker, attorney for the federation, to convince him the appeal is not moot and that the court could even rule on an expired environmental study. He pointed out that another contract is expiring in March that was based off a different environmental assessment and that there is another proposed extension in the works.
"What is it that you want the court to do? To invalidate the contract that's about to go into effect in 2016?" Tallman asked. "I just don't understand what it is you're asking for."
Volker responded that the fishermen simply want to end the bureau's "ludicrous evasion" of the National Environmental Policy Act process and promise that negative impacts on the delta will be further examined in future Central Valley Project contracts.
Environmentalists claim water quality in the delta is harmed by water diversions in the Central Valley Project and through runoff rich with farming chemicals from irrigated fields. Volker told the panel that the bureau only studies the impacts of the service area of the contract rather than the impacted delta area.
Due to California's historic drought no water was actually delivered under the disputed contracts, Emily Polachek of the U.S. Department of Justice told the panel. She said the contracts have already expired and that a new court order wouldn't likely change the way the bureau negotiates future water contracts.
Silverman ended the hearing by pushing the parties to settle through a mediator to fix the problem, noting the panel wasn't ready to reverse U.S. District Judge Kevin O'Neill's 2014 order in favor of the bureau.
"Would it be useful for the three sides to get together, maybe with our mediator, and see if there's some kind of way to - instead of fixing the blame - fix the problem?" Silverman asked the parties.
The panel gave the environmentalists, water suppliers and the bureau one week to decide whether to mediate. The bureau and the water suppliers said they were open to mediation while Volker said he has "no confidence" in mediation.
Senior Circuit Judge Raymond Fisher rounded out the three-judge panel.
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