Bowker v. Morton

No. C-70-1274 (N.D. Cal. August 2, 1973)

The court refuses to dismiss plaintiff small farmers' claims for injunctive relief against further construction or operation of the U.S. Bureau of Reclamation of the jointly funded San Luis Unit of the California State Water Project for failure to comply with the single owner acreage limitations of the federal reclamation laws. Assuming the correctness of plaintiffs' alleged facts for the purpose of ruling on the motions to dismiss, the court finds that plaintiffs have standing, that the suit is not barred by sovereign immunity, and that a class action is properly alleged. The court then decides that although an Interior Department Solicitor's Opinion found federal reclamation law inapplicable to the state service area (55 percent of the San Luis Unit, an area equivalent to the proportion of state funding), the question of whether the defendants have acted beyond the circumstances under which the Solicitor's Opinion confers a valid exemption merits a hearing. Plaintiffs' claim that NEPA compliance has not occurred also presents a factual question which cannot be dismissed. The court grants motions for intervention by three environmentalist parties, including the Sierra Club, after finding that they also have standing.

Counsel for Plaintiffs
James D. Lorenz, Jr.
170 Throckmorten Avenue
Mill Valley, California 94941

Michel F. Willey
315 Montgomery Street
San Francisco, California 94104

Counsel for Defendants
Evelle J. Younger Attorney General
6000 State Building
San Francisco, California 94102

Francis Boone U.S. Attorney
Federal Building
450 Golden Gate Avenue
San Francisco, California 94102

Counsel for Intervenor Sierra Club
John D. Hoffman
Sierra Club Legal Defense Fund, Inc.
Suite 311, 311 California Street
San Francisco, California 94104

[4 ELR 20255]

Carter, J.

This is an action for declaratory and injunctive relief brought by certain small farmers owning land in the San Joaquin Valley of California. Three of the plaintiffs claim that irrigation water which they receive for their farms is from federal irrigation projects in the state, thus making them, but not certain large corporate landowners, subject to federal reclamation law requirements. These plaintiffs seek to represent a class of all toher small farmers in the [4 ELR 20256] state similarly situated. A fourth plaintiff alleges injury due to severe competition from those larger farm owners who are not presently subject to the requirements of the federal reclamation laws.

The plaintiffs' complaint, as amended, sets out three claims for relief. The first two claims are grounded on the contention that while the plaintiffs — and other small farmers like them — who receive irrigation water from projects funded or constructed by the United States are bound by the acreage and residency restrictions in the federal reclamation laws, certain large corporate landowners are receiving almost unlimited amounts of federally subsidized water without being subject to those same restrictions. The plaintiffs' third claim alleges violations by the defendants of the National Environmental Policy Act.

The defendants in this action are the Secretary of the United States Department of the Interior, the Commissioner of the Bureau of Reclamation of the Interior Department, the Chief of the U.S. Army Corps of Engineers (hereinafter collectively referred to as the "Federal Defendants"), and the Director of the Department of Water Resources of the State of California (hereinafter referred to as the "State Defendant").

Presently before the Court are four motions. Both the Federal and State Defendants have moved to dismiss the complaint. The Federal Defendants have also moved the Court to strike portions of the complaint or to require a more definite statement thereof. The fourth motion is for permission to intervene in the action, made by the Sierra Club, the North Coast River Association, and Mr. Reo D. Stott. Each of these motions will be discussed by the Court in turn.

Prefatory to the substantive discussion of these motions, the Court will briefly outline certain background facts on which this action is necessarily grounded. The first major attempt at water distribution in the State of California was through the State Central Valley Project (hereinafter the "State CVP") in the central valley portion of the State. When the State found itself unable to finance the project, the United States, through the Federal Bureau of Reclamation, agreed to participate. Participation was authorized in 1937 through the Federal Central Valley Project (hereinafter the "Federal CVP"). There was thereafter very little State financial participation in the CVP until the later 1950's, when the State Water Project (hereinafter the "SWP") was established. Some of the features of the earlier State CVP were incorporated into the later SWP, which was generally a State-financed operation. The Federal CVP had meanwhile grown substantially with its assistance in irrigating the central valleys.

Federal participation, through the Federal CVP and later projects, brought with it the provisions of the Federal reclamation laws, 43 U.S.C. §§ 371, et seq. Certain provisions of the reclamation laws are pertinent here. Section 431 of Title 43 states that no right to the use of water for land in private ownership shall be sold for a tract exceeding 160 acres to any one landowner. Section 524 provides that water shall not be furnished to any one landowner in excess of an amount sufficient to irrigate 160 acres from any reservoir or any canal or ditch constructed or used by the United States in cooperation with irrigation districts, water-users' associations, corporations, entrymen or water users. Section 423(e) requires that any contracts executed between the United States and an irrigation district, by which such district agrees to pay to the United States the cost of construction, operation, and maintenance of the project, shall provide that all irrigable land held in private ownership by any one owner in excess of 160 acres be appraised by the Secretary of the Interior and the sales price affixed without reference to the proposed irrigation construction, and that no excess lands so held shall receive water from any project if the owners thereof refuse to execute valid recordable contracts for the sale of such lands.

In 1960 Congress passed the San Luis Act, 74 Stat. 156, whereby the Department of the Interior would construct the "San Luis Unit" of the CVP. Joint use facilities were authorized with the State of California, and an agreement was proposed between California and the United States for this purpose, by which the State would bear 55% and the Federal Government 45% of the cost of the joint project.

The San Luis Unit would include a series of water storage and transmission facilities on the western side of the San Joaquin Valley. A portion of the area served by the joint use facilities was to be deemed served by the Federal Bureau of Reclamation and would be called the "federal service area." The other portion was deemed served by the State, and called the "state service area." 74 Stat. 156.

The plaintiffs allege that the land held in the state service area of the San Luis Unit of the CVP is held almost exclusively by large corporate interests, clearly in excess of the 160-acre limitation set out in the reclamation laws and thus in violation thereof. The plaintiffs contend that the federal reclamation laws apply to the state service area of the San Luis Unit as well as to the SWP generally, due to the alleged federal participation in the whole project.

Congress has, from time to time, made specific statutory exemptions from the acreage limitations for certain projects.¹ However, no such exemption was ever clearly expressed for the San Luis Act. Nevertheless, approximately one and a half years after passage of the Act, the Solicitor of the Department of the Interior issued a legal opinion determining that the acreage limitations of the reclamation laws did not apply to the state service unit. On the basis of this opinion, the agreement between California and the United States for carrying out the San Luis Act was executed.

The plaintiffs have requested a declaratory judgment that the federal reclamation laws, including the acreage limitation, apply to the San Luis Act facilities and the state service area, and to all irrigation facilities constructed by the Bureau of Reclamation in conjunction with the State Water Project. They also request that the Court enjoin the Federal Defendants from expending any further money for the construction or operation of any water facilities until the federal reclamation laws are applied to existing facilities and all future facilities and lands served therewith. The plaintiffs further request that the Court enjoin the Federal Defendants to require that all excess landowners comply with 43 U.S.C. § 423e regarding the entry into contracts for the sale of such excess lands. Last, the plaintiffs request that the Court enjoin the State Defendant from taking any action which would interfere with or be inconsistent with the application of the federal reclamation laws to the State Water Project.

Motions to Dismiss

The State Defendant has moved for dismissal of the complaint on four grounds. First is the contention that there is no federal jurisdiction over a suit brought by a citizen against a sovereign state. The second ground is that there is no claim for relief stated. The third and fourth grounds are that the plaintiffs have no standing to sue and that the complaint is too lengthy for a response.

The Federal Defendants also have moved for a dismissal on four grounds, several of which are similar to those of the State Defendant. First, the Federal Defendants claim that this Court lacks jurisdiction in that the United States has not consented to the suit, that an injunction against the United States is not proper, that the plaintiffs lack standing, and that this action involves a political question requiring legislative, not judicial, action. Second, the Federal Defendants contend that the complaint fails to state a claim for relief. Third is the contention that this is not a proper case or controversy for declaratory relief since the large corporate landowners and others have not been named in the suit as defendants. Last, these Defendants question whether the requirements of a class action have been met. The Court will address itself to each ground as follows.

1. Standing

The United States Supreme Court, in Data Processing Service v. Camp, 397 U.S. 150 (1970), set out a two part test for determining standing to sue. The first part is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise. Id. at 152. There is no doubt that the plaintiffs at bar have sufficiently made this allegation.

The second part of the test is whether the interest sought to be protected is arguably within the zone of interests to be protected or regulated by the statute in question. Id. at 153. Although this latter [4 ELR 20257] test is somewhat more difficult to satisfy in the instant action, the Court feels that the plaintiffs have met its requirements also.

There appears to be no statutory purpose set out in the reclamation laws themselves. However, the various statutory provisions which limit the acreage for which water can be supplied and which require actual residency on the land would seem to indicate a purpose to benefit the small landowner and promote settlement in the areas subject to the federal laws. The Congressional debates surrounding the San Luis Act appear to comport with this reasoning. See, e.g., 105 Cong. Rec. 8000 and 106 Cong. Rec. 10458-10470.

Moreover, the Supreme Court has stated that from the beginning of the federal reclamation program in 1902, the policy as declared by the Congress has been one requiring that the benefits therefrom be made available to the largest number of people, consistent, of course, with the public good. This policy has been accomplished by limiting the quantity of land in a single ownership to which project water might be supplied. Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 292 (1958). See generally, Taylor, "The Excess Land Law: Execution of a Public Policy," 64 Yale L.J. 477 (1955).

The State and Federal Defendants' reliance on Tumer v. Kings River Conservation District, 360 F.2d 184 (9th Cir. 1966), is misplaced. It is true that the court therein stated that the reclamation laws imposed a duty on the Secretary of the Interior in the interest of the public at large and that there was nothing in such laws to indicate that Congress intended to confer a litigable right on private persons claiming injury from the Secretary's failure to discharge his duty to the public. Id. at 198. Nevertheless the appellants in Tumer were attempting to establish their riparian water rights, in part by relying on the 160-acre limitation. The court there held that the injury which the appellants claimed was not caused by a violation of the limitation, and therefore the appellants could not assert a right in themselves to injunctive relief on that ground. Id. Therefore the situation in Tumer is inapposite to the instant case.

The Court must heed the language used by the Supreme Court in the Data Processing case, supra, that the interest sought to be protected need only be "arguably" within the zone of interests protected or regulated by the statute. This Court feels that the plaintiffs at bar have at least "arguably" demonstrated that they, as owners of small or family-sized farms, possess interests protected by the federal reclamation laws. As the court stated in Yellen v. Hickel, 352 F. Supp. 1300, 1303-1304 (S.D. Cal. 1972), which involved a question of standing strikingly similar to the instant case,

[i]f the plaintiffs are not granted standing to bring this suit, the Department of Interior will in effect be given a license to disregard the law, as well as an immunity from challenges by the intended beneficiaries of the legislation in question.

2. Sovereign Immunity

The Defendants' motions both raise the question of whether the State or Federal Governments are subject to a suit of this kind, and whether the United States is subject to an injunction thereby.

It is at this point that the Court must remind the parties that they are before the Court on motions to dismiss. In considering such motions, the truth of the facts set forth in the complaint is to be assumed. Dodd v. Spokane County, Washington, 393 F.2d 330, 334 (9th Cir. 1968). Ordinarily a motion to dismiss should not be granted. Where there are any doubts about the character of the action, doubts should be resolved in favor of the pleader. Pond v. General Electric Company, 256 F.2d 824, 826-827 (9th Cir. 1958), cert. den. 358 U.S. 818 (1958).

Unfortunately, it appears that the parties have engaged, in the extensive briefs and memoranda filed in support of these motions, in factual as well as legal argumentation. This is not proper on motions to dismiss, and the Court therefore will consider no factual arguments except those set forth in the complaint, which will, as stated above, be assumed to be true for the purposes of these motions.

As to the question at hand — the sovereignty claims — the Court must be guided first of all by the United States Supreme Court in Dugan v. Rank, 372 U.S. 609 (1963) and Larson v. Domestic & Foreign Corp., 337 U.S. 682 (1949). The general rule of those cases is that a suit for equitable relief may be barred as against a sovereign where the sovereign has not consented to such suit. Actions which are nominally directed against individual Government officers may nonetheless fail for, since the sovereign can act only through its agents, when an agent's actions are restrained, the sovereign itself may, through him, be restrained. Two exceptions to this general immunity are recognized. Those exceptions are (1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void.

The Court finds that if the facts alleged in the complaint are true and if the federal reclamation laws do apply to the lands now held in excess of the acreage limitation, then the Federal Defendants may indeed have acted beyond or outside the scope of their authority in permitting water to be used by landowners in violation of the limitation. However, the sovereignty question does not end there. The United States Court of Appeals for the Ninth Circuit has interpreted certain language in the Larson opinion, supra, to mean that some suits against officers must be dismissed as suits against the Government even though the officers were not acting pursuant to valid statutory authority, if the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm. State of Washington v. Udall, 417 F.2d 1310, 1318 (9th Cir. 1969); see also Tumer v. Kings River Conservation District, 360 F.2d 184, 196-197 (9th Cir. 1966). This appears to mean nothing more than that where, as here, the propriety of injunctive relief against a sovereign is involved, the Court must, once it is determined that an officer's action has fallen beyond the scope of his authority, still apply the fundamental equitable doctrine of "balancing the equities."

That is in effect what the Defendants are requesting the Court to do now. However the Court submits that this is a factual determination which cannot be made on motions to dismiss. The Court cannot now weigh the relative burdens to the Government by enforcing the acreage limitations as against the possible harms to the plaintiffs until a full factual record is before it. The Court here can merely note that the plaintiffs have stated a possible claim against the Federal Defendants under one of the exceptions to the sovereign immunity doctrine, as outlined in the foregoing authorities. Therefore this Court has jurisdiction over the Federal Defendants.

The State Defendant additionally contends that he is protected from suit under the Eleventh Amendment to the United States Constitution. The Court disagrees. The State, and its officers, are inextricably interwoven into the scheme of federal reclamation laws. The San Luis Act is a joint operation of both the State and Federal Governments. To command action of one without the other would in effect defeat the plaintiffs' relief, if they are to ultimately prevail in this action. Therefore the Court will retain jurisdiction over the State Defendant as well.

3. Failure to State a Claim

The Defendants have also moved to dismiss on the ground that the complaint fails to state a claim for relief. In their Amended Complaint, the plaintiffs set out three separate causes of action. The first is that there is no express exemption to the reclamation laws stated in the San Luis Act, and therefore those laws must be applied to the state service area. The second claim states that, assuming the reasoning of the Solicitor's Opinion of the Interior Department to be correct, the facts on which such reasoning was based are not true in practice, and the reclamation laws must therefore be applied notwithstanding that Opinion. Third, the complaint states that the Defendants have not complied with the provisions of the National Environmental Policy Act.The Court will discuss each claim in turn.

The threshold question is, of course, what weight should be given the Opinion of the Solicitor. It was on the basis of this Opinion that the State and Federal Governments made their joint agreement pursuant to the San Luis Act. That Opinion held that the requirements of reclamation law did not apply to the state service area. The Defendants argue that the Court should accord great [4 ELR 20258] weight to the Opinion since the State has, in the intervening years since the agreement was executed, spent approximately $200,000,000 in its administration. Whether this is true is not a legal matter and is therefore not before the Court.

The Defendants have cited to an extensive list of cases which hold that, in construing a statute, weight must be given to the interpretation placed on the statute be those charged with its administration. E.g., Zemel v. Rusk, 381 U.S. 1 (1965) and udall v. Tallman, 380 U.S. 1 (1964).

There is the countervailing statement, advanced by the plaintiffs, that where a particular project has been exempted because of its peculiar circumstances, the Congress has always made such exemption by express enactment. Ivanhoe Irrig. Dist. v. McCracken, supra.

Nevertheless, an administrative practice has peculiar weight when it involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new. Norwegian Nitrogen Co. v. U.S., 288 U.S. 294, 315 (1933). "[G]overnment is a practical affair intended for practical men. Both officers, law-makers and citizens naturally adjust themselves to any long-continued action of the Executive Department — on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself — even when the validity of the practice is the subject of investigation." United States v. Midwest Oil Co., 236 U.S. 459, 472-473 (1915).

The Court feels itself bound by those principles in the instant situation. Here the Department of the Interior, through its Solicitor, made a contemporaneous contruction of the San Luis Act in order to determine whether it was exempt from the reclamation laws. In a through and well-reasoned analysis, the Solicitor's Opinion found that there was such an exemption. In reliance on that Opinion, the Department and the State, both charged with execution of the Act, proceeded to act through the intervening years. In light of the foregoing authorities, the Court sees no good reason to now question have validity of the Solicitor's Opinion. Therefore, the plaintiffs' First Claim for Relief, insofar as it charges that the San Luis Act in ipso facto subject to the federal reclamation laws, will be dismissed for failure to state a claim for relief.

However, in their Second Claim For Relief, the plaintiffs argue that even if the San Luis Act is found to be exempt from the reclamation laws on the basis of the Solicitor's Opinion, the Defendants have nevertheless acted in a manner beyond the circumstances under which the Solicitor felt there was a valid exemption. The Court is more impressed with the plaintiffs' arguments on this claim.

The Defendants argue that the main acreage limitation provisions, 43 U.S.C. §§ 423e and 524, are not applicable since they relate only to repayment contracts with irrigation districts. They contend that the State is, first of all, not an irrigation district and, second, that the joint agreement here was not a repayment contract at all. Rather, the State prepaid its 55% burden of the cost.

As to the first ground, the Court reserves doubts as to whether the State can or cannot be considered an irrigation district. The State appears to be contracting with the United States for groups of irrigation districts. It would appear unreasonable to believe that the State can escape application of the reclamation laws simply because it, rather than the individual irrigation districts, does the direct contracting, for under such conditions the State would in reality be acting as a "super" irrigation district rather than as a participating sovereign.Any doubts as to the nature of this portion of the claim must be resolved in favor of the plaintiffs.

While it may be true, as to the second ground, that the agreement provided for prepayment of the State's 55% share of the cost, nevertheless the plaintiffs have alleged facts in their Second Claim which indicate that it receives more than its proportionate share of the water supply. This would seem to indicate a repayment situation, or at least a situation wherein the reclamation laws might apply. In any event, the Court simply assumes the plaintiffs' factual allegations in this regard to be true and resolves its doubts, again, in their favor. Accordingly, the Court cannot state with any certainty that the plaintiffs' Second Claim For Relief must be dismissed.

The plaintiffs' last Claim for Reief charges violation of the National Environmental Policy Act, and in particular 42 U.S.C. § 4332 (2)(C), which requires an environmental impact statement to be made on any proposed major Federal action. A violation is also charged of Department of Interior Release 516DM1-3, September 17, 1970, which makes the provisions of the foregoing Act applicable to continuing Federal projects even though initiated prior to its enactment. The plaintiffs request a declaratory judgment that the Act applies and an injunction restraining any further construction or operation of the projects until a determination is made of the environmental impact of the SWP.

The Defendants, on the other hand, contend that the Act is not retroactive and that since the projects in question here were authorized long before the Act was passed, compliance therewith is not required. Although the Defendants cite many cases which so hold, most of those cases also recognize that the Act may be applicable to a "continuing" project. See, e.g., Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613, 624 (4d Cir. 1971); Investment Syndicates, Inc. v. Richmond, 318 F. Supp. 1038, 1039 (D. Ore. 1970); see also Note, "A Challenge To The California Water Plan," 22 Hastings L.J. 732, 753-755 (1971).

The rule has emerged from several recent cases that an ongoing project is subject to the requirements of the Act until it has reached the stage of completion where the cost of abandoning or altering it clearly outweighs the benefits which could flow from compliance. Scherr v. Volpe, 466 F.2d 1027, 1034 (7th Cir. 1972); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1332 (4th Cir. 1972), cert. den. 409 U.S. 1000.

The Court reiterates that it cannot make a factual determination at this time. It can only note that the plaintiffs allege in their complaint that there is "on-going Federal participation and financing" of the SWP. Whether such continuing participation is sufficient to require compliance with the Act at this late date must await a full factual record wherein the details of such participation are outlined. Again, any doubts which the Court harbors in this regard must be resolved in favor of the plaintiffs. Therefore the plaintiffs' Third Claim cannot be dismissed.

4. Political Question

The Federal Defendants also move to dismiss on the ground that this case involves a political question requiring legislative, rather than judicial, action. The Court disagrees with the Defendants that this case falls within the "tests" enumerated in Baker v. Carr, 369 U.S. 186, 217 (1962) for a political question. The mere fact that the reclamation laws, and in particular the acreage limitation, have engendered so must litigation in recent years belies this challenge.

5. Improper Declaratory Judgment

The Federal Defendants further move to dismiss on the ground that this action is not a case or controversy within the meaning of the Declaratory Judgment Act, 28 U.S.C. § 2201. The Defendants claim that neither the large corporate landowners nor any irrigation districts or other water users' entities are named parties to the suit. Again, the Court disagrees. It is the named Defendants, and in particular the Secretary of the Interior, who are charged with enforcement of the reclamation laws.If the plaintiffs have been injured as they have alleged, it is the claimed failure of the Defendants to enforce the laws which have caused their injury, not the landowners or others who merely receive the benefits which flow from the laws.

6. Improper Class Action

Finally, the Federal Defendants claim that the complaint should be dismissed for failure to properly satisfy the requirements for a class action. However, the Court points out that it has not been requested to determine whether a class, in fact, exists. The question now before the Court is merely whether a class action has [4 ELR 20259] been properly alleged. It appears that the requirements of Rule 23, F.R. Civ.P., have been satisfied as a matter of pleading. See Gillibeau v. City of Richmond, 417 F.2d 426, 432 (9th Cir. 1969).

Motions to Strike or For More Definite Statement

The Federal Defendants have moved the Court to strike the plaintiffs' complaint or to require a more definite statement on the grounds that it is vague, filled with immaterial statements and opinions, and is indirect. The State Defendant has moved to dismiss on largely the same grounds.

Although the Court agrees that the complaint is lengthy and descriptive and perhaps overly long, such pleading in a complex case as this probably facilitates rather than confuses the understanding of this action. The various motions which the Defendants have thus far filed in the action demonstratethat all parties have a clear understanding of the issued involved.

At this juncture the Court should note that the plaintiffs filed an amendment to their complaint without leave of the Court on February 23, 1971. Such leave is required pursuant to Rule 15(a), F.R. Civ.P. The plaintiffs have since lodged with the Court a copy of their First Amended Complaint. The Court has, in this discussion, referred to this Amended Complaint Since the parties have stipulated that their motions shall apply to it, and it would be reasonable to anticipate the amendments in any case in order to conserve time. In such case, the Court shall simply, rather than permit the filing of the First Amended Complaint, direct the plaintiffs to prepare a new Amended Complaint to conform with the dictates of this Order.

Motion to Intervene

The Sierra Club, the North Coast Rivers Association, and Reo D. Stott have moved for permission, under Rule 24, F.R. Civ.P., to intervene in this action.The Sierra Club claims that the recreational benefits, and the health and well-being, of its members and the general public are injured by lowered water quality resulting from excess water exportation as a result of the alleged failure of the Defendants to enforce the reclamation laws. Petitioner Stott owns several large parcels of land on or near the Trinity River which he claims have been seriously injured by the Defendants' alleged violations. Petitioner North Coast Rivers Association engages in diverse conservation efforts at considerable expenditure of time and money to protect the North Coast rivers from damage.

The Defendants object to the intervention on the grounds that the petitioners lack standing to sue and that they do not have a litigable right, either under the reclamation laws or under the National Environmental Policy Act.

On the question of standing, This Court is guided by the recent opinion in Sierra Club v. Morton, 405 U.S. 727 (1972). A reading of that case indicates that the petitioner was denied standing solely because it had asserted no individualized harm to itself or its members. Id. at 736. The court there noted that its decision did not bar the petitioner from seeking to mend its complaint to make such specific allegations.

The intervenors' complaint suffers from no such defect here. Each of the petitioners in this case have alleged specific injury to themselves in addition to the public at large. Therefore, the Court must find that they have standing under the dictates of the case cited above. Likewise, their rights seem to be no less litigable than those of the original plaintiffs in this action. Whether they will ultimately prevail is not before the Court and such a determination will require a full factual record.

Orders

Accordingly, IT IS ORDERED that the Defendants' motions to dismiss be, and the same are, hereby denied except as to the plaintiffs' First Claim For Relief. The plaintiffs' First Claim For Relief is hereby dismissed insofar as it alleges that the San Luis Act, 74 Stat. 156, is not exempt from the federal reclamation laws.

IT IS FURTHER ORDERED that the Federal Defendants' motion to strike or for a more definite statement be, and the same is, hereby denied.

IT IS FURTHER ORDERED that the motion of the Sierra Club, Reo D. Stott, and the North Coast Rivers Association to intervene in this action be, and the same is, hereby granted, and the Clerk of the Court is herewith directed to permit the filing of the Complaint in Intervention.

IT IS FURTHER ORDERED that the plaintiffs, within thirty days of the filing of this Order, prepare and file a First Amended Complaint in accordance with the dictates of this Order.

1. E.g., 54 Stat. 1219 and 43 U.S.C. § 386.