Environmental Defense Fund, Inc. v. East Bay Municipal Utility District

No. 425,955 (Cal. Super. Ct. April 26, 1973)

The purchase of water by a local utility district from the New Melones Dam federal water project is not subject to state law where there is no allegation that the project itself violates state law. Were California law applicable, a party found to be using water in an environmentally unreasonable manner by the State Water Resources Control Board is not liable under the doctrine of reasonable use to parties having no property rights in the water. For further discussion on the New Melones Dam Project see Comment. State Water Board Decision May Halt New Melones Project, 3 ELR 10062.

Counsel for Plaintiff
Thomas J. Graff
2728 Durant Avenue
Berkeley, California 94704

Counsel for Defendant
John B. Reilley
2130 Adeline St.
Oakland, California 94607

Counsel for Intervenor
John B. Heinrich
827 7th St., Room 220
Sacramento, California 95814

[3 ELR 20505]

Brunn, J.

This action involves water that the East Bay Municipal Utilities District plans to buy in the mid-nineteen eighties. In that sense, it is a lawsuit about future. But the future is being shaped now: The district has contracted to buy the water from a federal project which is under construction.

The factual and legal issues are complex, but the underlying question can be stated simply: Can the district lawfully contract to buy the water? This and other questions arise in the setting of general demurrers to the first amended complaint and to the complaint in intervention. A demurrer to the original complaint was previously sustained with leave to amend. The complaint in intervention is being considered here for the first time. Even in this early phase of the case, the papers before the court total hundreds of pages.

I will first summarize the pleadings (Section I). Next, I will deal with the absence of an allegedly essential party (Section II A), the propriety of intervention (Section II B) and intervenor's standing to sue (Section II C). I will then discuss whether sate law applies to the case (Section III). In the final section, I will assume that it does and consider whether the alleged facts make out any violation.

By way of preview, I find that plaintiff and intervenor can hurdle the procedural obstacles. I also conclude that the California constitutional and statutory provisions on which they rely do not apply; federal law controls here. Finally, even if federal law were not controlling, no violation of state law by defendants has been established.

This decision will succumb to an ailment common to water cases: length. I will try to sketch rather than exhaustively state my views. I will also strive to avoid another characteristic often found in water law decisions and that is their near incomprehensibility.

We begin with the parties and their factual allegations.

A. The Complaint

1. The plaintiffs. Plaintiffs are three organizations and four individuals. Plaintiff Environmental Defense Fund is a nationwide nonprofit membership corporation, with many members in Alameda and Contra Costa Counties. It is a New York corporation with an office in Berkeley, California.Among its purposes is the protection of the natural environment, including rivers. It has brought numerous suits throughout the country and is suing here on its behalf as well as on behalf of its members.

Plaintiff Oceanic Society is a California nonprofit corporation. It has a particular interest in the preservation of San Francisco Bay's aquatic environment by means of waste water recycling. Plaintiff Save the American River Association is a California nonprofit membership corporation, formed to protect the lands adjacent to the lower American River and the quantity and quality of its flow.

The individual plaintiffs are all taxpayers and either homeowners or renters in Alameda or Contra Costa Counties, within the service area of defendant East Bay Municipal Utilities District (hereinafter EBMUD). Three are members of plaintiff Environmental Defense Fund; all have an interest in the preservation of San Francisco Bay and are concerned with the pollution of the Bay; three have made recreational use of the American River, one especially has kayaked extensively on parts of the river that would be inundated under present plans.

2. The defendants. EBMUD is a utility district supplying water to large portions of Alameda and Contra Costa Counties. It also engaged, through its Special District One, in some treatment of waste water. Defendant Harnett is EBMUD's general manager.

3. Factual allegations. Plaintiffs set forth the facts upon which they rely with unusual lucidity. In summarizing them, I will, for the sake of simplicity, avoid repeated use of the word "alleged." Plaintiffs charge:

EBMUD supplies water to over a million people in Alameda and Contra Costa Counties, at an average rate of 212 million gallons a day. EBMUD gets most of the water from the Mokulumne River to which it holds rights to 325 million gallons a day. EBMUD organized and controls Special District Number One which operates a sewage treatment plant. This plant gives waste water only "primary treatment" and discharges the effluent into San Francisco Bay.

EBMUD has decided that by 1985 water from the Mokulumne will no longer be sufficient to meet the anticipated water needs of the people in the district. It began a wide-ranging search for additional water. As part of the search, it signed an agreement in 1968 with the U.S. Bureau of Reclamation and other parties. This agreement looked toward getting water from the American River and in it EBMUD agreed to certain conditions if it should later contract with the Bureau for water from the Bureau's American River Division of the Central Valleey Project. One condition makes EBMUD responsible for a construction of a canal, known as the Hood-Clay Connection, if federal and state authorities do not build it and if the Bureau finds it to be necessary. The canal is an integral part of the proposed East Side Division of the Central Valley Project. The agreement commits EBMUD to actively support congressional authorization and federal construction of the East Side Division, including the Hood-Clay Connection.

This initial agreement was followed by a contract signed in 1970 between EBMUD and the Bureau. EBMUD agreed to buy certain increasing quantities of water as soon as it becomes available upon completion of the Auburn-Folsom-South Project on the Americal River. The water will be diverted from the Folsom-South Canal at a point above the intersection of the canal and the proposed Hood-Clay Connection and thus will not be available to flow down the lower American River.

In contracting for American River water, EBMUD did not recognize its legal obligation to embark on a waste-water reclamation program. EBMUD has decided not to develop reclamation facilities to assist in meeting its present or future water needs. This decision as well as the seeking of additional water from the American River are abuses of discretion. The American River water will cost consumers more than reclaimed water. In addition, EBMUD had made "a major contribution . . . to the likelihood that the Bureau will (a) complete its construction of the Auburn-Folsom-South Project and (b) undertake construction of the East Side Division." These two endeavors will have serious harmful environmental consequences specified in the complaint, among them the destruction of the free-flowing north and middle forks of the American and the reduction of flow on the lower American, with the attendant loss of boating, fishing and other recreational opportunities. EBMUD will also continue to pollute the Bay with resulting environmental damage.

4. Causes of Action. These allegations give rise to three asserted causes of action. The first is that EBMUD's decision not to develop water reclamation facilities violates Article XIV, Section 3 of the California Constitution, Water Code Section 100 and Water Code Sections 13500 et. seq. The second is that EBMUD's decision to seek water from the American River violates the same provisions.The third is that the two decisions in combination contravene these provisions.

5. Relief sought. Plaintiffs seek a declaration that the two decisions are illegal, an order requiring EBMUD to use its best efforts to rescind the 1970 contract, an order forbidding EBMUD from issuing bonds or raising funds to contruct facilities for transmission [3 ELR 20506] and distribution of water from the American River, and an order requiring defendants "to undertake such a reclamation program as the proof will determine is required by law."

6. Previous ruling. This court previously sustained a general demurrer to the complaint with leave to amend.

B. The Complaint in Intervention

Intervenor is the County of Sacramento. The county alleges;

The American River is the second largest tributory of the Sacramento. The lower American, running 23 miles from Nimbus Dam to the Sacramento, lies wholly within Sacramento County. The lower American has long been used by the public for a variety of scenic and recreational purposes, including boating, fishing and swimming.

Beginning in 1962, the county developed the American River Parkway Plan. Pursuant to it, the county acquired 2000 acres of land on both sides of the lower American in order to develop a greenbelt for recreational and scenic purposes along the river. The areas covered by the plan will become a regional park; they will be improved in ways specified by the complaint and will cover the equivalent of twelve square miles. The county has already expended over six million dollars for land acquisition and improvements under the plan and expects to spend a million to 1 1/2 million dollars a year in the future.

After outlining EBMUD's agreements with the United States pertaining to the Auburn-Folsom-South Project, the county avers that this project will involve the construction of a dam at Auburn above Folsom Dam and the construction of a canal, the Folsom South Canal, above Nimbus Dam. The Auburn Dam and Folsom South Canal are presently under construction and, when completed, will divert water from the lower American. EBMUD's part of this diversion will be up to 150,000 acre feet per year or about 133 million gallons a day.

The county then states on information and belief that EBMUD could have contracted with the United States to get sufficient water at least as efficiently and economically from the Sacramento River at or below its confluence with the lower American.

The county next pleads a 1972 decision of the California Water Resources Control Board (Decision 1400). This decision made certain specified findings as to optimum and minimum water flows needed in the lower American for the protection of fish and wildlife and for recreational purposes. The decision orders certain minimum flows below those necessary to provide optimum conditions for fish and wildlife maintenance and recreational purposes and provided for the reduction of such flows below those ordered whenever water supplies are inadequate to meet irrigation needs. The county avers that as more and more water is provided for irrigation and other purposes by the Auburn-Folsom-South Project, the lower American will not have sufficient water to maintain fish and wildlife and to use the river for recreation.

The county's complaint also quotes from the Water Board decision, as follows:

"The Bureau contract with East Bay Municipal Utility District provides for delivery of water through the Folsom South Canal rather than from a downstream location. This type of water development, while satisfying one water requirement, eliminates the possibility for multiple beneficial uses of the water, and is not sound management of the water resource. If the Bureau contract with the District had required that the District take delivery of project water from the Sacramento River or some other downstream location rather than the Folsom South Canal, an additional 150,000 acre feet of project water supply (equivalent to about 210 cfs of continuous supply) would have been available for stream flow augmentation below Nimbus for fish and recreational purposes prior to ultimate use for municipal purposes. To this extent, the decrease in diversion via Folsom South Canal resulting from increased minimum flows below Nimbus Dam would be eliminated if EBMUD's point of delivery were made from the Sacramento River."

Claiming irreparable injury, the county seeks a declaration that EBMUD "lacked legal capacity to enter into" the 1970 contract and an injunction restraining the defendant from furthering its execution and either ordering it to seek recision through court action or declaring the contract void.

A general demurrer to the complaint in intervention is one of the matters before the court for decision.

C. The first amended complaint

The first amended complaint, also before us at this time, repeats by reference all of the charging allegations of the original complaint and also incorporates the allegations of the complaint in intervention pertaining to the lower American, its recreational use, the American River Parkway Plan, the availability of Sacramento River water to meet EBMUD needs and the decision of the California Water Resources Control Board. The amended complaint seeks the same relief on the same legal theories as the original complaint.

D. The demurrers

The demurrers both to the first amended complaint and the complaint in intervention are general, averring that the complaints fail to state facts sufficient to constitute a cause of action. The legal theories underlying the demurrers will be discussed at appropriate places below.

At the outset, this case presents several procedural issues. I will discuss the most important of these.

A. Joinder

The United States, which is building the project that will allegedly harm the river, is not before the court. Its absence seems especially striking in view of the contentions that EBMUD's contract with the United States is illegal and that EBMUD should be required to seek recision.

The absence of the United States as a party might raise serious questions under the new CCP Section 389. (The action was filed after the effective date of the new section.) But defendants have not properly raised these questions. They have filed general demurrers. They discuss the issue briefly in their attack on the complaint in intervention. They have neither demurred specially as provided by CCP Sec. 430.10 (d), nor have they moved to comple joinder or to dismiss for failing to join an indispensable party.

Under the old Section 389, there was authority to the effect that the court can act on its own motion in this area. Witkin, California Procedure (2nd ed.) 1833 and cases there cited. Two reasons lead me to conclude, however, that if this question is to be decided, it should be raised more formally and thoroughly.

First: The power to act on the court's own motion under the old Section 389 stemmed from the view "that failure to join an essential party is essential to jurisdiction of the subject matter . . ." Witkin, supra. The jurisdictional nature of joinder has largely disappeared under the new section. See Law Revision Commission comment to the section and compare Rule 82 of the Federal Rules of Civil Procedure.

Second: Section 389 is modeled closely on Rule 19 of the Federal Rules.That rule is normally invoked by appropriate motion. See Rule 12(b) of the Federal Rules.

B. Propriety of intervention

Defendants assert that intervenor has not pleaded facts entitling it to intervention. This appears to be a question that may be raised by general demurrer. See Hausman v. Farmers Ins. Exchange (1963), 213 C.A.2d 611.

CCP Section 387 permits intervention by any person "who has an interest in the matter of litigation, or in the success of either of the parties, or an interest against both . . ." The many cases permitting or denying intervention are of limited assistance here. What is of assistance is an understanding of the purposes of intervention and of the balancing process that a decision as to the propriety of intervention involves. This understanding was expressed concisely in County of San Bernardino v. Harsh California Corp. (1959), 52 C.2d 341, 346 (per Justice Traynon):

"The purposes of intervention are to protect the interests of those who may be affected by the judgment (citations) and to obviate delay and multiplicity of actions (citations). [3 ELR 20507] but intervention may be denied if these objectives are outweighed by the rights of the original parties to conduct their lawsuit on their own terms, (citations)"

Plaintiffs and intervenor have in common a concern for the environmental protection of the lower American River — a concern that goes to the core of the action. Many of the allegations concerning prospective environmental damage to the river are identical. Plaintiffs and intervenor seem to differ in their ideas on how defendants should meet their future water needs: Plaintiffs show a predilection for waste water reclamation that is not shared by intervenor. They also differ somewhat in the remedies they seek. What they do share are legal theories that EBMUD's decision to seek water from the lower American is unlawful. These theories will occupy us later; the point here is not their soundness but their similarity.

It cannot seriously be doubted that intervenor has a real and practical interest in the matter in litigation and in the success of the parties.The county's interests, to use the language of County of San Bernardino, supra, obviously may be affected by a judgment in this case. Defendants seek to underplay the county's interest by a curious argument. Even if plaintiffs win, the argument runs, there may be no benefit to the river. This is because, for all we know, the U.S. Government might then sell the water intended for defendants to others. In legal terms, this amounts to saying that the judgment may or may not affect intervenor's interests, but it does not mean that intervenor has no interest. Certainly a judgment adverse to plaintiffs could, if we accept the factual allegations of the pleadings as we must at this stage, have a substantial adverse effect on the interests of the intervenor.

Turning to the second purpose of intervention, namely, obviating delay and multiplicity of action, it is obviously hard to tell whether denial would cause such delay or multiplicity. We have no way of knowing whether the county would pursue its claim independently. Any such pursuit would mean two complex lawsuits instead of one, with overlapping factual and legal issues.¹ Little would be gained by that.

We now balance these considerations against "the rights of the original parties to conduct their lawsuit on their terms." Defendants have not indicated any prejudice from the intervention and none is apparent beyond the disadvantage inherent in any two-on-one situation. Consideration of the pleadings as they now stand does not show any undue broadening of legal or factual issues: It is too early to tell with assurance but it does not look as if intervention forces defendants to fight a two-front war on very different fronts. The differences in the scope of relief sought by plaintiffs and by intervenor are hardly matters that, under these particular circumstances, should cause any great difficulty if and when this litigation gets to that point.

Of course, this kind of balancing involves a certain amount of crystal-ball gazing. That is chancy in any litigation; it is particularly risky in an action such as this whose scope and issues take us into unfamiliar territory. It illustrated why, in much of what I write in this case, I speak without the confident assurance that as judges we are accustomed to bring to our decisions.

C.Intervenor's standing to sue

Defendants' contention that the County of Sacramento lacks standing to sue is a little difficult to understand. In essence, defendants urge that the county is not a taxpayer or a resident of EBMUD or a party to the contract and that it may have other remedies by way of seeking review of the action of the State Water Resources Control Board. The latter point might raise interesting questions in a different context but has no visible relation to the question of standing.

What do we mean by "standing to sue?" Basically, we mean a situation in which "the complaint may state a cause of action in someone, but not in the plaintiff." Klopstock v. Superior Court (1941), 17 C.2d 13, 19, cited in Witkin, Calofornia Procedure (2d ed.) 2429. Thus, in Venuto v. Owens-Corning Fiberglass Corp. (1972), 22 C.A. 3d 116, relied on by the defendants, the court dealt with the issue of whether private citizens have a remedy against a public nuisance. It held that a private citizen may sue only if the public nuisance is specially injurious to him.

Venuto does not benefit defendants; neither do the two federal cases cited by it which deal with federal procedure. The inquiry must run along these lines: For the purpose of deciding this issue, we have to assume that there is a cause of action. In other words, that the planned taking of water is illegal, that it will cause the environmental damage to the lower American River which flows through Sacramento County and that it will also damage the facilities the county is developing at considerable expense under its parkway plan. If all that is really so, why is Sacramento County not one of the "persons" in whom the cause of action resides? In whom would the cause of action reside? To argue, as defendants do, that the county could sue other parties in other proceedings does not answer these questions.

Putting this another and perhaps simpler way, to assert lack of standing is to tell a party, in effect, "you are trying to set up a cause of action that belongs to somebody else and you have no authority to do that." But here Sacramento County is patently endeavoring to plead a claim of its own, based on fairly concrete damage to it. Whether Sacramento County, or indeed any of the plaintiffs, actually has a cause of action remains to be seen, of course. But standing does not seem to be serious problem.

So far, I have commented on several problems of a kind that, no matter how fascinating they may be to our profession, leave citizens shaking their heads in bewilderment and frustration. It may or may not be helpful to say that these problems have to be dealt with because like Mt. Everest — or more accurately, the approaches to the mountain — they are there.

III

We are next faced with the question of whether state law applies to this case at all.The factual setting for this question is that EBMUD has contracted with the U.S. Bureau of Reclamation to buy water in the future from a water project that the Bureau is in the process of constructing. The project has been authorized by Congress; the Bureau has obtained a permit for it from the State Water Resources Control Board; the legality of the project itself is not under attack here.

Defendants contend that from these facts, it follows that the legality of EBMUD's action on contracting with the Bureau must be determined by federal law and not by the California statutes and constitutional provision on which plaintiffs and intervenor rely.

Somewhat reluctantly, I am inclined to agree. Under a line of U.S. Supreme Court decisions that include Ivanhoe Irrigation District v. McCracken (1958), 357 U.S. 275; Dugan v. Rank (1963), 372 U.S. 609 and City of Fresno v. California (1963); 372 U.S. 625, the water that EBMUD will be buying is federal water and not subject to state law.Our State Supreme Court, which once had different thoughts on the matter (in Ivanhoe I, reversed by the U.S. Supreme Court, supra), put the matter very clearly in Ivanhoe 11 (Ivanhoe Irrigation District v. All Parties (1960), 53 C.2d 692). What the court said about the projects there involved would seem to apply with equal force here:

"[The United States Supreme Court] held that the United States may acquire, by condemnation if necessary, whatever water rights it may need to operate the project and that after such acquisition such rights are not subject to state control. Thus, whether or not the United States now has complete title to the waters here involved is totally immaterial to the issues involved on these appeals. Obviously, the federal government may contract to sell water that it does not own, as long as it has the legal power to secure title. The United States Supreme Court has declared as a matter of federal law that the United States possesses such power. That holding is binding on this court." (53 C 2d at 715)

The court went on to hold that since the trust theory which sought to make state law applicable had been overturned by the Supreme Court, the districts could validly contract with the federal government for the water. 53 C 2d at 716. The situation before us would seem to be identical. I find the various efforts in the briefs to make end-runs around Ivanhoe interesting and unpersuasive. Little [3 ELR 20508] would be gained by detailing them all here since they disregard the fundamental point that EBMUD will be buying federal water which is not subject to state law.

By way of illustration of plaintiffs' approach, they argue that "(u)nder the facts surrounding this case, however, there is no reason to believe that the federal government intended to assert an overriding interest that would vitiate provisions of state law." This not only ignores the effect of Ivanhoe II that EBMUD will be buying federal water, but it invites the court to speculate on the intent of the United States Government. At the same time, plaintiffs have chosen not to make the United States a party,² thus creating the situation where they seek this kind of speculation. The only evidence of the intent of the United States which is pleaded is its contract with EBMUD.

Moreover, plaintiffs and intervenor are in no way challenging the legality of the federal project. If the United States is legally building a project utilizing water from the American River — if the United States does this either free of state law or in compliance with applicable state law — then it is a little difficult to see how state law would block persons from buying the water that the United States is acquiring for the precise purpose of selling. To put this another way, if the United States is free to take the water regardless of state law, then making the water unsellable would render the United States' right to build the project meaningless; or, at best, seriously interfere with that right. Thus, federal supremacy is of at least as great importance here as in Ivanhoe. If, on the other hand, the United States is complying with the state laws relied on by plaintiffs in acquiring the American River water, then any basis for a cause of action tends to evaporate. Only if the federal government's acquisition of the water violated applicable state law might we be forced with a question of whether EBMUD's purchase of such water also violates state law. As already mentioned, no such violation by the federal government is urged here.

It should be noted that I am not expressing any view, because the question is not before me, on whether the federal government may lawfully take water from California rivers in quantities that would cause serious environmental damage.³

Assuming for the sake of discussion that state law applies, does it help plaintiffs? They contend that Water Code Sections 13500 et seq., California Constitution Art. XIV, Section 3 and Water Code Section 100, impose on defendants a duty to reclaim waste water and not to purchase American River water from the federal government.

A. Water Code Sections 13500 et seq

These sections are known as the Water Reclamation Law. Reading them suffices to show that they do not afford plaintiffs any basis for relief.

Section 13500 gives the title of the law. Section 13510 declares the public interest in the development of water reclamation facilities. Section 13511 contains legislative findings "that a substantial portion of the future water requirements of this state may be economically met by beneficial use of reclaimed water" and that such use "will contribute to the peace, health, safety and welfare of the people of the state." Section 13512 is a declaration that "(i)t is the intention of the legislature that the state undertake all possible steps to encourage development of water reclamation facilities so that reclaimed water may be made available to help meet the growing water requirements of the state.

These provisions are followed by a section authorizing state loans for the development of reclamation facilities and studies pertaining to reclamation (Section 13515) and with a series of sections setting up machinery to control the quality of reclaimed water (Sections 13520-13526). Section 13527 deals with financial assistance; Section 13528 preserves the existing powers of the State Department of Public Health; Section 13530 provides for state surveys and investigations relating to waste water reclamation "to the extent funds are allocated therefor" and the final two sections restrict the use of waste wells.

It does not require extensive discussion to conclude that these provisions do not make it mandatory to anyone to reclaim waste water. I know of no legal alchemy to transmute these policy declarations into legal duties. The expression of legislative intent in Section 13512 leaves no doubt: What was intended is state encouragement of the development of water reclamation facilities. This is far different from mandating such development.

The Water Reclamation Law recognizes the importance of reclamation. The law authorizes state loans and establishes a mechanism for the regulation of water purity. But the Water Reclamation Law patently does not say: "Thou shalt recycle."

B. California Constitution Article XIV, Sec. 3 and Water Code Sec. 100

The constitutional argument requires more extensive discussion. Article XIV, Section 3 of the California Constitution provides:

"It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste of unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste of unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained."

Water Code Section 100 repeats the first two sentences of Article XIV, Sec. 3. Water Code Section 101 repeats the third sentence.

Plaintiffs and intervenor contend that in view of their factual allegations, EBMUD's proposed acquisition of American River water is not a "beneficial use to the fullest extent" of these water resources, within the meaning of Article XIV, Sec. 3 and Water Code Sec. 100, and that it is an "unreasonable use" or unreasonable method of use or diversion or waste within the meaning of these provisions. Plaintiffs, but not intervenor, also content that these provisions require defendants to reclaim waste water under the facts here alleged.

One attractive focus for both plaintiffs' and intervenor's views is the finding by the State Water Resource Control Board in Decision 1400 that the Bureau of Reclamation contract with EBMUD "eliminates the possibility of multiple beneficial uses of the water and is not sound management of the water resources."

If Article XIV, Section 3 and its statutory counterpart were before the courts for the first time, much could be said for the position [3 ELR 20509] of plaintiffs and intervenor. The long history of the constitutional provision, discussed by plaintiffs in their "Supplemental Brief on Scope of Article XIV, Section 3," sheds a different light.

The leading case setting out that history is Gin S. Chow v. City of Santa Barbara (1933), 217 Cal. 673, 695 et seq. Beginning with Lux v. Haggin (1886), 69 Cal. 255, California case law developed and adhered to the rule "that in a controversy between a riparian owner and an appropriator the doctrine of reasonable use does not apply." (Chow at 696.) Between riparian owners, each was limited to a reasonable use of the water. But "(a)s against an appropriator who seeks to divert water to nonriparian lands, the riparian owner is entitled to restrain any diversion which will deprive him of the customary flow of water which is or may be beneficial to his lands. He is not limited by any measure of reasonableness." Miller Lux v. Madera Canal etc. Co. (1909), 155 Cal. 59, 64.

The legislature attempted to curtail riparian rights in the Water Code of 1913, but its efforts were struck down in Herminghaus v. Southern Cal. Edison Co. (1926), 200 Cal. 81. See Maloney & Ausness, A Modern Proposal for Regulation of Consumptive Use of Water (1970), 22 Hast. Law Journal 523, 533.

Immediately following the Herminghaus decision, the legislature proposed an amendment to the Constitution. This proposal was adopted by the voters in 1928 as Article XIV, Sec. 3 (see Chow, supra at 699). "It was because this court felt impelled to adhere to the long-established rule of Lux v. Haggin, supra, that a constitutional amendment was made necessary." Id. at 700. As the ballot argument stated: "Under present interpretations, the riparian owner is not bound by any rule of reasonableness in the use of water." (Quoted in Treadwell, Developing a New Philosophy of Water Rights (1950), 38 Cal. Law Rev. 572, 573.) For an excellent summary of the history of the amendment, see also Joslin v. Marin Mun. Water District (1967), 67 C.2d 132, 136-138.

What the constitutional amendment accomplished was, in a sense, the opposite of what plaintiffs want: It made it easier to take water and it did that by limiting riparian owners to a reasonable use. The words "waste" and "conservation" are used in the amendment and in the cases applying it, but in a particular way. As Chow, supra, observes (217 Cal. at 700), in the ballot argument "(t)he purpose of the amendment was stated to be 'to prevent the waste of waters of the state resulting from an interpretation of our law which permits them to flow unused, unrestrained and undiminished to the sea.'" Compare Threadwell, Modernizing the Water Law (1928), 17 Cal. Law Rev. 1:

"The problem stated in a broad way is the desire that the most extensive use practicable be made of the waters of the state. The obstacle in the way is the claim that a riparian owner is entitled to the full flow of the stream past his land, at least as far as it is in any way beneficial to him, no matter how extravagant and wasteful his use or enjoyment of the water may be . . ."

Of course, the appropriator's use must also be "reasonable." Thus, in Tulare Dist. v. Lindsay-Strathmore Dist. (1935), 3 C 2d 489, 547, the court said: "As the pressure of population has led to the attempt to bring under cultivation more and more lands and as the demands for water to irrigate these lands have become more and more pressing, the decisions have become increasingly emphatic in limiting the appropriator to the quantity reasonably necessary for beneficial uses. (Citations) If the appropriator uses more than the amount so required, he gains no right thereto."

"An excessive diversion of water for any purpose cannot be regarded as a diversion for a beneficial use. Insofar as the diversion exceeds the amount reasonably necessary for beneficial purposes, it is contrary to the policy of the law and is a taking without right and confers no title, no matter for how long continued. (Citations) In determining what is a reasonable quantity for beneficial uses, it is the policy of the state to require within reasonable limits the highest and greatest duty from the waters of the state. (Citation). However, an appropriator cannot be compelled to divert according to the most scientific method known. He is entitled to make a reasonable use of water according to the general custom of the locality so long as the custom does not involve unnecessary waste. (Citation)"

In short, the amendment extended the rule of reasonableness to all water rights. Joslin v. Marin Mun. Water Dist. (1967) 67 C.2d 132, 138; Peabody v. City of Vallejo (1935), 2 C.2d 351, 383, and see Wiel, The Pending Water Amendment to the California Constitution, and Possible Legislation (1928), 16 Cal Law Rev. 169, 175; Waldo, Evaluation of California Water Rights Law (1945), 18 So. Calif. Law Rev. 267; Harding, Background of California Water and Power Problems (1950), 38 Cal. Law Rev. 547, 552.

But to recognize that does not help plaintiffs. It does not help them because water rights are not involved here.Defendants claim no water rights in the American River; the parties are not rival claimants to property rights in the water of the river. Article XIV, Section 3 provides a basis for settlement of such rival claims: It delineates a basic water rights policy. The cases applying the constitutional provision concern competing claims to water rights. They provide no basis that I can discern for turning Article XIV, Section 3 into a broad environmental charter that extends to water purchasers.

I will illustrate rather than discuss these cases at length. Peabody v. City of Vallejo (1935), 2 C.2d 351, was litigation between riparian owners and an appropriator. See comment, 8 So. Cal. Law Rev. 235 (1935), Tulare Dist v. Lindsay-Strathmore Dist., supra, dealt with the effort of prior appropriators to enjoin a subsequent one. 3 C.2d at 547-548. In City of Lodi v. East Bay Municipal Utilities District (1936), 7 C.2d 316, a prior vested right clashed with the claim of a subsequent appropriator. City of Pasadena v. City of Alhambra (1949), 33 C.2d 908, adjudicated ground water rights and, as many earlier decisions, clearly indicates that the constitutional provision deals with water rights:

"Although the law at one time was otherwise, it is now clear that an overlying owner or any other person having a legal right to surface or ground water may take only such amount as he reasonably needs for beneficial purposes. (Citations)." 33 C.2d at 925.

In that case, the court also held that failure to reclaim "storm waters and waters used to flush streets, fight fires, and flow sewage does not, as claimed by appellant, constitute waste in violation of Section 3 of Article XIV of the California Constitution." Id. at 934-935.

The most recent California decision on which the parties rely is Joslin v. Marin Mun. Water Dist. (1967), 67 C.2d 132. There riparian owners sought damages for diversion by an upstream appropriator who had built a dam. The court reviewed the history of the amendment and said (137-138):

"The amendment was generally construed as applying a rule of reasonable use 'to all water rights enjoyed or asserted in this state, whether the same be grounded on the riparian right, of the overlying land owner, or the percolating water right, of the appropriative right.' (Citation) Thus the rule of reasonableness of use as a measure of the water right which had theretofore been applied as between other contesting claimants⁴ but had been denied application as between riparian owners and appropriators was finally extended to include the latter. (Citations)"

* * *

Where does this long history take us? It is clear that for plaintiffs to prevail, two things have to be true of Article XIV, Section 3. It must cover environmental considerations of the kind urged here and it must extend beyond the regulation of water rights.

The meaning of constitutional provisions changes. We know that the due process clause, the equal protection clause, the prohibition of cruel and unusual punishment — to name only a few — are applied quite differently today than they were a few decades ago. Justice Leonard Friedmanrecently wrote of the problems of applying [3 ELR 20510] a constitution in a changing world as problems of "principled response; not expediency, but allegiance to fundamental purpose as applied to new conditions; not rigidity, but adaptable firmness." (Quoted by Justice Mosk in 12 CLTJ 27 at 28 (1973)).

As to the first of the two major issues, our understanding of water conservation problems has advanced over what it was in 1928 or 1948. We know today that wild rivers are an irreplaceable resource. As our everyday life becomes more urban, we have become increasingly conscious of the great need to protect and enhance our physical environment, including our rivers and our shrinking wilderness areas. We have given legislative recognition to this need. See, e.g., the Environmental Quality Act of 1970 (Public Resources Code Sections 2100 et seq). In light of this, I have no great difficulty in saying that what is "reasonable" under Article XIV, Section 3, is not fixed and that today a determination of reasonableness should properly include, when appropriate under the facts, environmental factors such as the recreational, fish and wildlife uses of a river. Court decisions applying Article XIV, Section 3, do not preclude such a view and this appears to be the interpretation of the State Water Resources Control Board, an interpretation entitled to considerable respect. See Decision 1379 and 1400.

What the court decisions do preclude a trial judge from doing is to extend Article XIV, Section 3, beyond competing claims to water rights. Joslin is only six years old and sets forth the view which our Supreme Court has consistently taken. It can, of course, be argued that the question has not been squarely presented to the appellate courts, that past litigation has involved competing water rights claims and that, therefore, the courts have not had to decide whether the constitutional provision has any scope of operation beyond the resolution of such claims.

This argument may be available to an appellate court, However, as I have tried to indicate, the provision throughout its history has been viewed as dealing with asserted water rights and, specifically, as extending the rule of reasonableness to contests between riparian owners and appropriators. I have no basis for now turning the provision into something very different.

CONCLUSION

Trial court judges who write decisions, especially long ones in complex areas, should be given a Miranda warning. I have ventured to put pen to paper here without pride of authorship or sholarship, but because of the importance of the issues raised and for whatever help it might be to reviewing courts.

The parties have raised questions in addition to the ones I have discussed. The disposition of the issues above makes discussion of these questions unnecessary. Specifically, I have not decided whether to take judicial notice of a number of documents which defendants submitted with a request to take judicial notice.

In light of the foregoing discussion, the demurrers must be sustained. Plaintiffs have made it clear that they have no other theories for relief. They re-pleaded the same theories in their amended complaint. Nothing would be gained by granting further leave to amend.

It is, therefore, ordered that the demurrers to the first amended complaint and to the complaint in intervention be and the same hereby are sustained without leave to amend.

1. It may be noted that plaintiffs are more seriously risking multiplicity and delay by their decision not to make the United States a party. Whatever bearing that factor may have on the joinder problem, it patently has none here.

2. While intervenor and defendants apparently feel that the United States could not be joined, plaintiffs stated during oral argument that their decision not to join the United States was based on a desire to have the case decided in state court and on state law.

3. That question may be in issue in other litigation. Plaintiffs' main brief advises the court that the State Water Resources Control Board has attempted to regulate and limit the diversion of water from the lower American, including the proposed federal diversion, with a view to protecting the environment of the river. Plaintiffs submitted with their briefs here Board Decisions 1379 and 1400 in this connection. Plaintiffs also advise the court that the United States has taken the position that these decisions conflict with congressional enactments authorizing the project. Plaintiffs further advise that water users' associations are litigating the validity of the Water Resources Control Board decisions and have temporarily enjoined their operation.

4. The court's footnote at this point says: "For example 'as between riparian owners (Citation); as between owners overlying an underground water supply (Citation); as between appropriators (Citation); as between overlying owners and exporters from an underground basin to nonoverlying lands (Citation); and as between riparian owners and overlying owners under the doctrine of common source of supply (Citation); . . .'"