Environmental Defense Fund v. Fast Bay Municipal Utility District

No. 1 Civ. 33624 (Cal. Ct. App. November 7, 1975)

ELR Digest

Environmental groups and residents of defendant's service area appeal from dismissal of their complaint, which seeks declaratory and injunctive relief under the California constitution against defendant's handling of waste waters. Plaintiffs allege that defendant has decided not to engage in waste water reclamation activities in order to meet future water needs, but rather to contract with the U.S. Bureau of Reclamation to purchase water from the American River upon completion of the Auburn-Folsom Unit of the Central California Project. Plaintiffs further allege that defendant would have little or no need to seek water elsewhere if it engaged in reclamation. Therefore, it is asserted that defendant's decision not to reclaim waste water violates the first two sentences of art. XIV, § 3, Cal. Const., Cal. Water Code § 100, which stipulate that the "right to use water . . . shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water." Plaintiffs are correct in arguing that art. XIV applies to all water users rather than just to property owners, Meridian Ltd. v. San Francisco, 13 Cal.2d 424, 447 (1939), and that it extends to all water uses including such environmental factors as recreation, fish and wildlife uses. Defendant errs in reading City of Pasadena v. City of Alhambra, 33 Cal.2d 908 (1949), cert. denied, 339 U.S. 937, as establishing as a matter of law that failure to reclaim waste water may not be deemed a violation of art. XIV, § 3. Plaintiffs are entitled to proceed to trial on this aspect of their complaint.

The demurrer must, however, be sustained as to plaintiffs' other count, which is echoed by the complaint of intervenor Sacramento County. These allege that the Bureau of Reclamation's Auburn-Folsom Project will so deplete the waters of the lower American River as to make it unsuitable for recreational or wildlife uses, whereas equal amounts of water could be obtained downstream without such harmful consequences. By contracting with the Bureau of Reclamation for future waters, it is asserted, the defendant is again in violation of art. XIV, § 3. These arguments must give way to the doctrine of federal supremacy, which applies to all aspects of contracts with the Bureau of Reclamation, and under which state courts are without authority to interfere. Ivanhoe Irrig. Dist. v. All Parties, 53 Cal.2d 692 (1960), overruling Ivanhoe Irrig. Dist. v. All Parties, 47 Cal.2d 597 (1957), rev'd sub. nom. Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275 (1958).

The order dismissing the complaint is reversed; the order dismissing the complaint in intervention is affirmed. Plaintiffs may recover costs on appeal from defendant; defendant may recover its costs on appeal pro rata from intervenor.

Full text of this opinion is available from ELR (41 pp. $5.25, ELR Order No. C-1009).

Counsel for Plaintiffs
Thomas J. Graff
Environmental Defense Fund
2728 Durant Ave.
Berkeley, Cal. 94704
(415) 548-8906

F. Bruce Dodge
Morrison & Foerster
Crocker Plaza
One Post Street
San Francisco, Cal. 94104
(415) 986-1310

Counsel for Defendant
John B. Reilley, Gen. Counsel
E.B.M.U.D.
2130 Adeline St.
Oakland, Cal. 94607
(415) 835-3000

Counsel for Intervenor
L. B. Elam, Dep. County Counsel
Sacramento County
827 7th St.
Sacramento, Cal. 95814
(916) 454-5311

Counsel for Amicus State of California
Evelle J. Younger, Atty. General
Jan E. Chatten, Dep. Atty. General
600 State Bldg.
217 W. First St.
Los Angeles, Cal. 90012
(213) 620-3085

Lazarus, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]