Mealey's Water Rights Law Report Sample Issue

MEALEY’STMTM
Water Rights Law ReportOctober 2014 Volume 1, Issue #1
In Water Rights Case, Justice Breyer Asks States: ‘Can You Work This Out?’
WASHINGTON, D.C. — Listening to arguments by Kansas about Nebraska’s violation of a 2006 Republican
River water rights settlement, U.S. Supreme Court Justice Stephen G. Breyer on Oct. 14 asked Nebraska’s lawyer:
‘‘Is there any chance that you all could work this out?.’’ SEE PAGE 4.
U.S. Tells High Court To Hold Off Before Taking On Florida-Georgia Water Dispute
WASHINGTON, D.C. — The federal government on Sept. 18 said the U.S. Supreme Court should deny a petition
by the State of Florida to resolve a long-running water dispute with Georgia and wait until the U.S. Army Corps
of Engineers has finished updating its Master Water Control Manual (Master Manual) for federal water projects in
the Apalachicola-Chattahoochee-Flint (ACF) Basin. SEE PAGE 6.
U.S. Supreme Court Asks Solicitor General’s View On Miss.-Tenn. Water Dispute
WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 20 asked the solicitor general for his views on
Mississippi’s renewed complaint that Tennessee is unlawfully taking Mississippi’s underground water for the City
of Memphis, Tenn. SEE PAGE 7.
Judge Rules On Calif. Dam Releases, But Parties Can’t Agree On Final Remedy
FRESNO, Calif. — Although a California federal judge issued an opinion and order about federal water releases from
a Trinity River dam, the federal government and two California state water authorities on Oct. 17 said they are unable
to agree on language for a final judgment. SEE PAGE 10.
Summary Judgment Granted In Challenge Of Forest Service’s OK Of Gold-Mine Project
SACRAMENTO, Calif. — A California federal judge on Oct. 1 granted summary judgment to the U.S. Forest Service,
finding among other things that that plaintiffs opposed to a California gold-mining project did not show that the
project’s water use will have a detrimental effect on the Salmon River watershed. SEE PAGE 11.
New Environmental Study Ordered By Judge, But Water Bank Will Stay Open
SACRAMENTO, Calif. — A California state court judge on Oct. 2 ordered the state water department to conduct a
new environmental impact report (EIR) for the Kern Water Bank but denied a suggestion to shut down the bank,
saying that to do so in a historic drought would be ‘‘irresponsible.’’ SEE PAGE 12.
Montana Supreme Court Upholds Water Court’s Dismissal Of Claim Objection
HELENA, Mont. — An objector to a water diversion application failed to present evidence that the holder put the
water to beneficial use, that the diversion involved a separate water source and that the holder abandoned its rights,
the Montana Supreme Court ruled Sept. 16. SEE PAGE 16.
Idaho Supreme Court Affirms Deed Correction To Clarify Lack Of Water Rights
BOISE, Idaho — The Idaho Supreme Court on Sept. 19 affirmed a lower court’s decision to correct a deed that
mistakenly transferred water rights. SEE PAGE 19.
N.M. Ranchers Denied TRO Against Grazing Closure For New Endangered Species
ALBUQUERQUE, N.M. — A New Mexico federal judge on Oct. 9 denied issuance of a temporary restraining
order sought by 32 ranchers against the U.S. Forest Service for closing off parts of two national forests from cattle
grazing in order to protect a new endangered species. SEE PAGE 20.
Nevada Federal Judge OKs Changes To Orr Ditch Decree
LAS VEGAS — A Nevada federal judge on Sept. 30 granted a motion to amend or alter the 1944 Orr Ditch Decree,
saying circumstances have changed and the court has authority to alter past decrees. SEE PAGE 22.

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MEALEY’STMTM
Water Rights Law Report
October 2014 Volume 1, Issue #1
Cases in this Issue Page
State of Kansas v. State of Nebraska, et al., No. 126, Original, U.S. Sup ................. 4
State of Florida v. State of Georgia, No. 142, Original, U.S. Sup. ............................ 6
State of Mississippi v. State of Tennessee, et al., No. 143, Original, U.S. Sup.......... 7
Stewart & Jasper Orchards, et al. v. Sally Jewell, et al., No. 14-377, U.S. Sup......... 8
San Luis & Delta-Mendota Water Authority, et al. v. Sally Jewell, et al.,
No. 13-1232, E.D. Calif..................................................................................... 10
Klamath Siskiyou Wildlands Center, et al. v. United States Forest Service, et al.,
No. 12-1676, E.D. Calif..................................................................................... 11
Central Delta Water Agency, et al. v. California Department of Water Resources,
et al., No. 34-2010-80000561; Rosedale-Rio Bravo Water Storage District,
et al. v. California Department of Water Resources, et al.,
No. 34-2010-80000703, Calif. Super., Sacramento Co. .................................... 12
Millview County Water District, et al. v. State Water Resources Control Board,
et al., No. A139481, Calif. App., 1st Dist., Div. 1 ........................................ 13
Santa Barbara Channelkeeper v. State Water Resources Control Board, et al.,
No. CPF-14-513875, Calif. Super., San Francisco Co....................................... 14
Living Rivers Council v. State Water Resources Control Board, No. A138723,
Calif. App., 1st Dist., Div. 5............................................................................... 15
Donald C. Marks v. 71 Ranch, LP, No. DA 13-0489, Mont. Sup. ..................... 16
Eldorado Co-Op Canal Co., et al., No. DA 13-0709, Mont. Sup. ...................... 17
Jay Brown, et al. v. Augusto Sayoko Mimoto Greenheart, No. 41189, Idaho
Sup., Boise, August 2014 Term, 2014 Opinion No. 100, Idaho Sup. .............. 19
San Diego Cattlemen’s Cooperative Association, et al. v. Tom Vilsack, et al.,
No. 14-818, D. N.M. .................................................................................... 20
United States of America v. Orr Water Ditch Co., et al., No. 3:73-cv-31,
D. Nev. ........................................................................................................... 22
Village of Four Seasons Association, Inc. v. Elk Mountain Ski Resort, Inc.,
No. 996 MDA 2013, Pa. Super., 2014 Pa. Super. LEXIS 3437 .................. 23
Rural Water, Sewer and Solid Waste Management District No. 1, Logan
County, Oklahoma v. City of Guthrie, et al., No. 05-786, W.D. Okla............ 24
Niagara Mohawk Power Corporation, et al. v. Allied Healthcare Products, Inc.,
et al., No. 6516-09, N.Y. Sup., Albany Co. ....................................................... 25
HEAL Utah, et al. v. Kane County Water Conservancy District, et al.,
No. 20140429, Utah App................................................................................... 27
James Jefferson Jowers, Sr., et al. v. South Carolina Department of Health
and Environmental Control, No. 2014-CP-06-322, S.C. Comm. Pls.,
Barnwell Co......................................................................................................... 27
In the Matter Salt River Valley Water Users’ Association, et al.,
No. 13A-SW001-DWR, Ariz. Dept. Water Resources....................................... 28
Published document is available at the end of the report. For other available
documents from cases reported on in this issue, visit www.mealeysonline.com or call
1-800-MEALEYS.

In this Issue
Interstate Litigation
In Water Rights Case, Justice Breyer Asks
States: ‘Can You Work This Out?’ ............... page 4
U.S. Tells High Court To Hold Off
Before Taking On Florida-Georgia
Water Dispute................................................ page 6
U.S. Supreme Court Asks Solicitor
General’s View On Miss.-Tenn.
Water Dispute................................................ page 7
High Court Asked If Endangered Fish
Trumps Economic Harm To
California Water Users................................... page 8
California
Judge Rules On Calif. Dam Releases,
But Parties Can’t Agree On Final
Remedy........................................................ page 10
Summary Judgment Granted In
Challenge Of Forest Service’s
OK Of Gold-Mine Project........................... page 11
New Environmental Study Ordered
By Judge, But Water Bank Will
Stay Open.................................................... page 12
California Appeals Court Won’t Rehear
Russian River Water Rights Case ................. page 13
Group Seeks Mandate For State Water
Board To Study Ventura’s Water Use.......... page 14
California Appeals Court Afﬁrms
$445,005 Attorney Fee Award
In Water Policy Case ................................... page 15
New California Law Regulates
Groundwater Resources................................ page 16
Montana
Montana Supreme Court Upholds Water
Court’s Dismissal Of Claim
Objection..................................................... page 16
Montana High Court Remands Some
Teton River Water Rights Issues To
Water Court................................................. page 17
Idaho
Idaho Supreme Court Afﬁrms Deed
Correction To Clarify Lack Of
Water Rights................................................ page 19
New Mexico
N.M. Ranchers Denied TRO Against
Grazing Closure For New
Endangered Species...................................... page 20
Nevada
Nevada Federal Judge OKs Changes
To Orr Ditch Decree................................... page 22
Pennsylvania
Pennsylvania Appeals Court Partly
Reverses Summary Judgment
Against Ski Resort........................................ page 23
Oklahoma
Oklahoma City Rural Water Turf
Dispute Set For Trial Nov. 4
In Federal Court .......................................... page 24
New York
Old Water-For-Power Pact Still Valid,
New York Justice Rules................................ page 25
Utah
Utah Environmental Group Appeals
Water Rights For Green River
Nuclear Plant ............................................... page 27
South Carolina
South Carolina Residents: State’s Surface
Water Law Is Unconstitutional
Taking.......................................................... page 27
Arizona
Arizona Water Director Denies Protests
Of Salt River Project Water Permits............. page 28
MEALEY’S Water Rights Law Report Vol. 1, #1 October 2014
Cite as Mealey’s Water Rights Law Report, Vol. 1, Iss. 1 (10/14) at p.___, sec.___. 3

News
In Water Rights Case,
Justice Breyer Asks States:
‘Can You Work This Out?’
WASHINGTON, D.C. — Listening to arguments
by Kansas about Nebraska’s violation of a 2006 Re-
publican River water rights settlement, U.S. Supreme
Court Justice Stephen G. Breyer on Oct. 14 asked
Nebraska’s lawyer: ‘‘Is there any chance that you all
could work this out?’’ (State of Kansas v. State of
Nebraska, et al., No. 126, Original, U.S. Sup.).
(Transcript available. Document #95-141023-017T.)
In a case of original jurisdiction, both Kansas and
Nebraska filed exceptions to a special master’s re-
commendation last year that Nebraska pay Kansas
$5.5 million for violating the 2006 Final Settlement
Stipulation and the 1943 Republican River Compact.
In addition, the special master, Judge William J. Kay-
latta Jr. of the First Circuit U.S. Court of Appeals, said
a mistake in the water accounting procedures of the
2006 settlement should not be reformed.
Kansas says the Supreme Court should augment the re-
medies for Nebraska’s ‘‘knowing violations’’ of the com-
pact to ensure future compliance by Nebraska and that
the parties should stick to agreed accounting procedures.
Nebraska says that Kansas should not be awarded $1.8
million over and above actual damages as disgorgement
and that the accounting procedures need to be reformed.
During arguments that included the U.S. Solicitor Gen-
eral’s Office, the Supreme Court grappled with whether
disgorgement is an appropriate remedy for a violation
that is not willful and whether the settlement agreement
is a contract that should undergo rescission rather than
‘‘reformation.’’
‘Couldn’t Know Less About It’
Justice Breyer told Nebraska Chief Deputy Attorney
General David D. Cookson: ‘‘But this part about the
accounting, my instinct is that farmers and other
who use the water have to know, and it hurts them
when another five years goes by without anybody
understanding what the procedure is.’’
‘‘It looks as if what you’re facing are nine people — and
I’m not speaking for the other eight, I’m just speaking
for myself — who couldn’t know less about it, all right,
and we’re supposed to decide whether some system
here is going to work or not,’’ Justice Breyer said.
‘‘And that can be another five years. Is there any chance
that you all could work this out?’’
Cookson said that what the special master presented
‘‘is not something that requires five years to work
out.’’ Cookson said that beyond contract principles, it
is appropriate, as the Supreme Court did in Texas v.
New Mexico (462 U.S. 554 [1983]), to ‘‘conform the
terms of the accounting procedures to the final settle-
ment so that they are consistent with both the com-
pact and the final settlement stipulation.’’
5-Run Solution
Justice Sonia Sotomayor questioned why the parties
did not discuss Nebraska’s ‘‘five-run solution’’ during
negotiations. ‘‘And if you didn’t put forth an alter-
native, why shouldn’t we accept the special master’s
judgment on the [five-run solution]?’’ she asked Kansas
Solicitor General Stephen R. McAllister.
Justice Antonin Scalia questioned whether disgorge-
ment is a proper remedy if Nebraska’s compact vio-
lation was not found by the special master to be
intentional. Justice Scalia challenged Assistant U.S.
Solicitor General Ann O’Connell to cite cases to sup-
port disgorgement for what the special master called
‘‘conscious wrongdoing.’’
O’Connell pointed to a contract provision in the Re-
statement of Torts. Justice Scalia said, ‘‘I don’t think
4
Vol. 1, #1 October 2014 MEALEY’S Water Rights Law Report

the Restatement can change our law by just saying
something by consensus of law professors.’’
O’Connell also admitted that disgorgement for an
unintentional violation is ‘‘novel.’’
Contract Or Settlement?
Justice Anthony M. Kennedy also questioned if the
court should apply principle of contract law. He said
the agreement in question was reached during litigation
and is now closed.
Cookson said the technical appendix to the agreement
treats the issue ‘‘more like an ongoing matter.’’
Justice Samuel A. Alito Jr. questioned where the special
master’s $1.8 million figure in the disgorgement calcu-
lation came from. O’Connell said that ‘‘is pretty much
unexplained.’’ Justice Elena Kagan also questioned how
the disgorgement figure was arrived at.
Claim, Counterclaim
In 2010, Kansas filed a petition with the Supreme
Court seeking a remedy to Nebraska’s alleged breach
of the Final Settlement Stipulation and the Republican
River Compact. Nebraska denied Kansas’ claims and
filed a counterclaim asking the Supreme Court to cor-
rect a mistake in accounting procedures under the 2006
agreement.
In 2011, the Supreme Court appointed Judge Kaylatta
to serve as special master. In November 2013, Judge
Kaylatta submitted his report.
The special master recommended that the Supreme
Court declare that in 2005 and 2006, Nebraska brea-
ched the 1943 Compact by consuming an excess 70,869
acre-feet of water. Judge Kaylatta recommended that the
high court enter judgment in favor of Kansas for $5.5
million.
(Special Master’s report available. Document #95-
141023-007X.)
The special master also recommended that the court
deny Kansas’ other claims for relief, including that Ne-
braska be found in contempt of court. He also recom-
mended that the court order the reform of accounting
procedures in the Final Settlement Stipulation to cal-
culate water usage from the Republican River Basin.
States File Exceptions
Kansas, Nebraska and Colorado filed exceptions to the
special master’s report.
Kansas says the Supreme Court should augment the
remedies for Nebraska’s ‘‘knowing violations’’ of the
compact to ensure future compliance by Nebraska. It
says the court should also order Nebraska to comply
with the compact and final settlement with the high
court retaining jurisdiction for enforcement.
(Kansas’exceptions available.Document #95-141023-
008B.)
In addition, Kansas says the Supreme Court should
order Nebraska to disgorge a substantial portion of its
gains from its ‘‘knowing Compact violations.’’
Finally, Kansas says the Supreme Court should not
change the accounting procedures contained in the
Final Settlement Stipulation. The state says that the
accounting procedures were the result of lengthy nego-
tiations and that there was no ‘‘mutual mistake.’’
Damages Calculation Questioned
Colorado took exception to the special master’s recom-
mendation that a damages calculation take into account
Nebraska’s gain.
(Colorado’s exceptions available. Document #95-
141023-010B.)
In its exceptions, Nebraska said Kansas should not be
awarded $1.8 million over and above actual damages
as disgorgement of Nebraska’s gain over Kansas’ loss.
(Nebraska’s exceptions available. Document #95-
141023-009B.)
Finally, Nebraska took exception to the special master’s
finding that it ‘‘knowingly failed’’ to comply with the
Republican River Compact.
Federal Government Amicus
In its April 7 amicus curiae brief, the United Stated
urged the court to adopt the special master’s recom-
mendations and to reform the Republic River Compact
Agreement accounting procedures. The government
said disgorgement by Nebraska is an appropriate
5

remedy to ensure compliance with a compact appor-
tioning water of an interstate stream.
(United States’ amicus brief available. Document
#95-141023-011B.)
The government said partial disgorgement is justified
because of Nebraska’s remedial efforts.
The case originated in 1998 and was resolved through a
stipulated settlement in 2003. Kansas filed its current
petition in 2010.
Counsel
Kansas is represented by Attorney General Derek
Schmidt and Jeffrey A. Chanay, Christopher M. Gru-
newald, Burke W. Griggs, Bryan C. Clark and McAll-
ister of the Kansas Attorney General’s Office in Topeka,
Kan., and Tom W. Hampton of the University of Kan-
sas in Lawrence, Kan.
Nebraska is represented by Attorney General Jon Brun-
ing, Justin D. Laverne and Cookson of the Nebraska
Attorney General’s Office in Lincoln, Neb., and Special
Attorneys General Donald G. Blankenau and Thomas
R. Wilmoth of Blankenau Wilmoth Jarecke in Lincoln.
Colorado is represented by Attorney General John W.
Struthers, Solicitor General Daniel D. Domenico and
Assistant Attorney General Scott Steinbrecher of the
Colorado Department of Law in Denver.
The United States is represented by Solicitor General
Donald B. Verrilli Jr., Acting Assistant Attorney Gen-
eral Robert C. Dreher, Deputy Solicitor General Edwin
S. Kneedler, Keith E. Saxe, James DuBois and O’Con-
nell of the U.S. Justice Department in Washington. I
U.S. Tells High Court To
Hold Off Before Taking On
Florida-Georgia Water Dispute
WASHINGTON, D.C. — The federal government
on Sept. 18 said the U.S. Supreme Court should deny
a petition by the State of Florida to resolve a long-
running water dispute with Georgia and wait until
the U.S. Army Corps of Engineers has finished up-
dating its Master Water Control Manual (Master
Manual) for federal water projects in the Apalachicola-
Chattahoochee-Flint (ACF) Basin (State of Florida v.
State of Georgia, No. 142, Original, U.S. Sup.).
(U.S. amicus curiae brief available. Document #95-
141023-012B.)
In October 2013, Florida filed a motion for leave to
file a complaint of original jurisdiction with the
Supreme Court. Florida alleges that Georgia’s storage
consumption of water from the ACF Basin has harmed
Florida’s ecosystem and economy, including its oyster
industry.
(Florida motion available. Document #95-141023-
013M.)
Florida says that Georgia’s water consumption is
expected to double by 2040. It asks the Supreme
Court to equitably apportion the waters of the ACF
Basin and to cap Georgia’s water uses at 1992 levels.
Georgia: Action Is Premature
In its January opposition, Georgia says Florida’s com-
plaint is premature because of inadequate water releases
from the Woodruff Dam by the Corps of Engineers. It
says the Corps is currently determining new flows for
the future.
(Georgia opposition available. Document #95-
141023-014B.)
In addition, George says that Florida has not alleged
sufficient injury to warrant the high court’s original
jurisdiction. It says damages to Florida’s oyster industry
were caused not by low water flows from the Apala-
chicola River but from drought and overharvesting.
In March, the Supreme Court invited the solicitor
general to express his views.
Wait For Corps’ Master Manual
‘‘Florida has pleaded an interstate water dispute of
sufficient importance to warrant this court’s exercise
of its original jurisdiction, and no other judicial
forum is suitable for resolving the overall contro-
versy,’’ the solicitor general writes. ‘‘Practical considera-
tions, however, weigh against the court’s resolution of
6

Florida’s claims before the Corps has completed its
process of updating the Master Manual for the federal
projects in the ACF Basin.’’
‘‘The Court accordingly should deny Florida leave to
file its complaint without prejudice to refiling after the
Corps has issued its revised Master Manual,’’ the Soli-
citor General continues. ‘‘In the alternative, the Court
should grant Florida leave to file, but stay or provide for
tailoring of any further proceedings until the Corps has
issued the revised Master Manual. The United States
recommends the former disposition.’’
The Supreme Court has listed the petition for discus-
sion at its Oct. 31 conference.
Counsel
Florida is represented by Christopher M. Kise and
Melissa B. Coffey of Foley & Lardner in Tallahassee,
Fla., Donald G. Blankenau and Thomas R. Wilmoth
of Jarecke in Lincoln, Neb., Attorney General Pamela
Jo Bondi, Solicitor General Allen Winsor and Jonathan
Glogau of the Office of Attorney General in Tallahassee
and Matthew Z. Leopold of the Florida Department of
Environmental Protection in Tallahassee.
Georgia is represented by Seth P. Waxman, Paul
R.Q. Wolfson, Christopher E. Babbitt, Joshua M. Salz-
man and Daniel Aguilar of Wilmer, Cutler, Pickering,
Hale & Dorr in Washington, Attorney General Samuel
S. Olens of the Georgia Department of Law in Atlanta
and Special Assistant Attorneys General Christopher
Landau, Craig S. Primis, K. Winn Allen and Sarah
Hawkins Warren of Kirkland & Ellis in Washington.
The United States is represented by Solicitor General
Donald B. Verrilli Jr., Acting Assistant Attorney Gen-
eral Sam Hirsch, Deputy Solicitor General Edwin S.
Kneedler, Assistant Solicitor General Ann O’Connell,
Keith E. Saxe, James J. Dubois and Michael T. Gray of
the U.S. Justice Department in Washington. I
U.S. Supreme Court Asks
Solicitor General’s View On
Miss.-Tenn. Water Dispute
WASHINGTON, D.C. — The U.S. Supreme Court
on Oct. 20 asked the solicitor general for his views on
Mississippi’s renewed complaint that Tennessee is
unlawfully taking Mississippi’s underground water for
the City of Memphis, Tenn. (State of Mississippi v.
State of Tennessee, et al., No. 143, Original, U.S. Sup.).
On July 6, Tennessee filed a complaint of original
jurisdiction with the Supreme Court against Tennessee,
Memphis and the Memphis Light, Gas and Water
Division. Mississippi alleges that since 1985, the def-
endants have been mechanically extracting ground-
water from Mississippi to supply Memphis.
(Mississippi complaint available. Document #95-
141023-032B.)
Mississippi alleges that Tennessee is taking water from
an underground sandstone geological formation known
as the Sparta Sand. It says the U.S. Geological Survey
in 1965 determined that the Memphis Sand Aquifer
is supplied in large part by the Sparta Sand.
As a result of Tennessee’s taking, Mississippi said there
is a substantial drop in pressure and a corresponding
drawdown of stored underground water in the Sparta
Sand. That, in turn, has created a hydrologic feature
called a ‘‘cone of depression.’’
Past Efforts Failed To Resolve
Mississippi alleges that since 1985, Tennessee has taken
more than 252 billion gallons of water from Missis-
sippi. Mississippi says that it has attempted to address
the issue several times but that the defendants have
refused to participate.
Mississippi notes that it unsuccessfully litigated the
issue in Hood, ex rel. Mississippi v. City of Memphis
(533 F. Supp.2d 646 [N.D. Miss. 2008], aff’d, 570
F.3d 625 [5th Cir. 2009], cert. denied, Mississippi v.
City of Memphis, 559 U.S. 901 [2010]).
The Supreme Court is asked to exercise original juris-
diction over a dispute between states, to declare who
owns the disputed groundwater and to order the def-
endants to pay damages or restitution.
Defendants: Deny For Same Reason
In their Sept. 5 opposition, the defendants say the
Supreme Court should deny leave to file the complaint
for the same reason it denied Mississippi’s 2009
attempt to file an original jurisdiction complaint against
7

the Memphis Light, Gas and Water Division. They say
the new complaint rests on the same territorial property
rights theory that the court rejected in 2009.
(Tennessee reply available. Document #95-141023-
033B.)
The defendants say the high court in 2009 correctly
rejected Mississippi’s argument that a state owns inter-
state waters within its borders. They said the court also
correctly rejected Mississippi’s argument that equitable
apportionment does not apply to groundwater sources
such as the aquifer in question.
In addition, the defendants say Mississippi’s claims are
barred by preclusion. They say the Fifth Circuit U.S.
Court of Appeals, in a 2009 ruling in a case involving
the same issue, rejected the argument that Mississippi
ownstheportionoftheaquiferlocatedwithinitsborders.
In its Sept. 24 reply brief, Mississippi says its claims
do not fall under the court’s equitable apportionment
jurisdiction. Instead, it says they fall under the court’s
jurisdiction to protect each state against another’s
encroachment on its retained territorial sovereignty.
(Mississippi reply available. Document #95-141023-
034B.)
No Equitable Apportionment
Mississippi says equitable apportionment does not
apply to groundwater, which under natural conditions
is an intrastate natural resource. The fact that the com-
mercial wells pumping water out of Mississippi are
physically located in Tennessee is irrelevant to claimed
violations of retained sovereignty, Mississippi says.
Decisions by lower courts, Mississippi says, did not and
cannot establish equitable apportionment as the state’s
only remedy.
Mississippi is represented by Attorney General Jim
Hood, Assistant Attorney General Geoffrey C. Mor-
gan, George W. Neville, Harold E. Pizzetta III and
Alison E. O’Neal of the Attorney General’s Office in
Jackson, C. Michael Ellingburg of Daniel, Coker, Hor-
ton & Bell in Jackson, Larry D. Moffett of Daniel
Coker in Oxford, Miss., John W. ‘‘Don’’ Barrett and
David M. McMullan Jr. of the Barrett Law Group in
Lexington, Miss., George B. Ready of George B. Ready
Attorneys in Hernando, Miss., and Charles Barrett
of Charles Barrett P.C. in Nashville, Tenn.
The Tennessee defendants are represented by Tennes-
see Attorney General Robert E. Cooper Jr., Acting
Solicitor General Joseph F. Whalen and Deputy At-
torney General Barry Turner of the Attorney General’s
Office in Nashville and David C. Frederick, Derek T.
Ho and Joshua D. Branson of Kellogg, Huber, Hansen,
Todd, Evans & Figel in Washington. I
High Court Asked If Endangered
Fish Trumps Economic
Harm To California Water Users
WASHINGTON, D.C. — Three California farms
on Sept. 30 petitioned the U.S. Supreme Court to
overturn a circuit court opinion that they say protects
an endangered species of fish at the expense of agricul-
tural water users (Stewart & Jasper Orchards, et al. v.
Sally Jewell, et al., No. 14-377, U.S. Sup.).
(Petition available. Document #95-141023-022B.)
In their petition for a writ of certiorari, Stewart & Jasper
Orchards, Arroyo Farms LLC and King Pistachio
Grove ask the high court to overturn the 2-1 March
ruling by a panel of the Ninth Circuit U.S. Court of
Appeals in San Luis & Delta-Mendota Water Au-
thority v. Jewell (No. 11-15871, 9th Cir.; 747 F.3d
581; 2014 U.S. App. LEXIS 4781). The ruling
included two partial concurrences and partial dissents.
The court denied a motion for an en banc rehearing.
The three petitioners were part of a nine-case appeal
in which agricultural water users and various California
water authorities challenged a federal biological opinion
that put the delta smelt on the endangered species list
and restricted the use of water from the fish’s habitat.
The original plaintiffs sued the federal government
in the U.S. District Court for the Eastern District of
California, arguing that the federal government violated
the Endangered Species Act and the Administrative
Procedure Act by failing to determine if a reasonable
and prudent alternative is economically feasible.
Listing Reduced Water Pumping
The petitioners say that as members of local water dis-
tricts, they rely on contractual water deliveries from
8

the federal Central Valley Project and the California
State Water Project. They say large pumping stations
at the Sacramento-San Joaquin Delta draw fresh water
and pump it to reservoirs.
The projects’ pumps also draw in various aquatic
species, including the delta smelt. They say that starting
in 1993, the federal government listed the smelt as
threatened and designated a large area of the delta as
a critical habitat for the fish.
The Endangered Species Act prohibits any person or
entity from taking a listed species without authori-
zation, the petitioners note. They say that U.S. Fish
and Wildlife Service has interpreted its regulation and
defined a ‘‘reasonable and prudent alternative’’ to pro-
tecting the delta smelt.
‘Disastrous Consequences’
By complying with regulations to decrease pumping
water from the delta smelt’s habitat, the petitioners say
compliance has had ‘‘disastrous consequences,’’ includ-
ing lost permanent crops, fallow farmland, layoffs and
‘‘destruction’’ of farming businesses.
The Eastern District Court partially invalidated the
biological opinion of the Fish and Wildlife Service. It
found the agency violated the Endangered Species Act
and the Administrative Procedure Act by failing to
explain how its proposed ‘‘reasonable and prudent alter-
native’’ is economically feasible.
The Fish and Wildlife Service and environmental inter-
venors appealed. In reversing the District Court, the
Ninth Circuit panel said it was constrained by the
Supreme Court’s Hill decision (Tennessee Valley
Authority v. Hills [U.S. 158 (1978)]) and said the
Fish and Wildlife Service is due deference in its deci-
sion making.
The Ninth Circuit also held that the ‘‘reasonable and
prudent alternative’’ in the biological opinion is consis-
tent with the Endangered Special Act and the Admin-
istrative Procedure Act.
‘Absolves’ Agency Explanation?
‘‘The Ninth Circuit decision threatens the water supply
for millions of domestic and agricultural users,’’ the peti-
tioners write. ‘‘It upends basis administrative law by
absolving an agency of any duty to explain or support
its legally mandated determinations, so long as the legal
obligation derives from a ‘definitional’ provision.’’
The petitioners go on to say that the Ninth Circuit
ruling ‘‘authorizes the federal agencies charged with
administering the Endangered Species Act to impose
draconian limitations on productive activity in the
name of species preservation without any regard for
economic consequences.’’ They say the Ninth Circuit’s
ruling conflicts with the Fourth Circuit’s ruling in
Dow AgroSciences LLC v. National Marine Fisheries
Service (707 f.3d 462 [4th Cir. 2013] ‘‘and further
exposes a longstanding Circuit split over whether an
how to apply judicial deference to an agency’s inter-
pretation of its own regulations.’’
The petitioners say the Ninth Circuit ruling under-
scores the need for the Supreme Court to overrule its
decision in Hills, which says federal agencies are
required to protect species and their habitat ‘‘whatever
the cost.’’ The plaintiffs say Congress has subsequently
amended the act to add ‘‘reasonable and prudent alter-
native’’ framework.
Does Agency Define Its Rules?
The petitioners say the Supreme Court should decide if
the Administrative Procedure Act ‘‘excuses’’ an agency’s
failure to explain its decision making if a legal obligation
derives a ‘‘definitional’’ provision. They also say the
high court should determine whether the economic
feasibility of a ‘‘reasonable and prudent alternative’’
dependsontheeconomicconsequencesofthealternative.
The Supreme Court should also decide to what extent
an agency’s interpretation of its own regulations is
entitled to deference, they say.
Finally, the petitioners say the Supreme Court should
overrule Hill’s holding that the Endangered Species Act
requires federal agencies to make species preservation
the ‘‘highest of priorities’’ and to protect them and their
habitat at ‘‘whatever the cost.’’
Counsel
The petitioners are represented by James S. Burling,
M. Reed Hopper, Paul J. Beard II and Damien M.
Schiff of Pacific Legal Foundation in Sacramento, Calif.
9

The federal government is represented by Solicitor
General Donald B. Verrilli Jr. of the U.S. Justice
Department in Washington. I
Judge Rules On Calif.
Dam Releases, But Parties
Can’t Agree On Final Remedy
FRESNO, Calif. — Although a California federal
judge issued an opinion and order about federal water
releases from a Trinity River dam, the federal gov-
ernment and two California state water authorities on
Oct. 17 said they are unable to agree on language for a
final judgment (San Luis & Delta-Mendota Water
Authority, et al. v. Sally Jewell, et al., No. 13-1232,
E.D. Calif.).
(Joint report available. Document #95-141023-026B.
Plaintiff’s proposed judgment available. Document
#95-141023-027B. Defendants’ proposed judgment
available. Document #95-141023-028B.)
In 2013, the San Luis & Delta-Mendota Water Au-
thority and the Westlands Water District sued the fed-
eral government and various agencies and officials in the
U.S. District Court for the Eastern District of California
to stop the U.S. Bureau of Reclamation from making
flow augmentation releases (FARs) of water from the
Lewiston Dam on the Trinity River. The releases were
to reduce the likelihood of an Ich (Ichthyophthirius mul-
tifiliis) epizootic event that could lead to a fish die-off
in the Lower Klamath River.
The plaintiffs alleged that the federal government
violated various provisions of the Central Valley Project
Improvement Act (CVPIA) and the Reclamation Act
of 1902. They said the federal government should have
first prepared an environmental impact statement
under the National Environmental Policy Act or the
Endangered Species Act.
The Hoopa Valley Tribe, the Yurok Tribe, the Pacific
Coast Federation of Fishermen’s Associations and the
Institute for Fisheries Resources were later joined as
defendant-intervenors.
Order Limited Release
The court issued a temporary restraining order against
release from the Lewiston Dam in excess of 450 cubic
feet per second for fishery purposes. The court later
lifted its order and denied a preliminary injunction.
In an amended complaint, the plaintiffs say the releases
also exceeded a volume limit set by the Trinity River
Record of Decision (TRROD).
The parties filed cross-motions for summary judgment.
Release Violated 1 Law, Not Other
In an Oct. 1 opinion and order, Judge Lawrence J.
O’Neill granted summary judgment to the defendants,
finding that the federal government did not violate the
CVPIA by implementing the dam releases (2014 U.S.
Dist. LEXIS 140539). He denied the plaintiffs’ cross-
motion on the same issue.
(Opinion and order available. Document #95-
141023-025Z.)
The judge granted summary judgment to the plaintiffs
on the issue of whether the 1955 Trinity River Division
Central Valley Project Act provided authorization to
implement the 2013 releases.
Judge O’Neill said the question of remedies remain to
be addressed and said that since the releases are made
annually, he directed the parties to file a joint form of
judgment consistent with his ruling.
Parties Can’t Agree
In an Oct. 17 joint report, the parties said they told
the judge they are unable to agree on a joint form of
judgment. The plaintiffs say their proposed judgment
provides declaratory relief regarding the 1955 act, the
CVPIA and the TRROD.
The plaintiffs say the government wants a judgment
limited to stating whether the 1955 act and CVPIA
authorized the 2013 releases only.
E M A I L T H E E D I T O R
email editor tom moylan at
tom.moylan@lexisnexis.com
10

The federal government says the judgment should be
in two paragraphs. It says the first is a ruling that the
1955 act did not authorize the 2013 releases.
The second proposed paragraph, the federal govern-
ment says, is a ruling that they did not violate the
CVPIA in implementing the 2013 releases.
The government says the plaintiffs’ proposed judgment
is beyond the scope of the lawsuit and the court’s find-
ing. It says it never asserted that the TRROD provided
authority for the releases.
Counsel
San Luis & Delta-Mendota and Westlands Water Dis-
trict are represented by Daniel J. O’Hanlon, Rebecca R.
Akroyd and Elizabeth L. Leeper of Kronick, Moskovitz,
Tiedmann & Girard in Sacramento, Calif. Westlands is
also represented by Steven O. Sims and Dulcinea Z.
Hanuschak of Brownstein Hyatt Farber Schreck in
Denver.
The federal government is represented by Acting Assis-
tant Attorney General San Hirsch, Anna K. Stimmel
and Bradley H. Oliphant of the U.S. Justice Depart-
ment in Washington, D.C. I
Summary Judgment Granted In
Challenge Of Forest Service’s
OK Of Gold-Mine Project
SACRAMENTO, Calif. — A California federal judge
on Oct. 1 granted summary judgment to the U.S.
Forest Service, finding among other things that that
plaintiffs opposed to a California gold-mining project
did not show that the project’s water use will have a
detrimental effect on the Salmon River watershed (Kla-
math Siskiyou Wildlands Center, et al. v. United States
Forest Service, et al., No. 12-1676, E.D. Calif.; 20014
U.S. Dist. LEXIS 141028).
(Opinion available. Document #95-141023-004Z.)
At issue is Wabuska Mining LLC’s High Bar Placer
Mine Phase 2 Project, a gold-mining operation located
in the Salmon River watershed in Northern California.
The project calls for the mining operations to withdraw
water from the McNeal Creek via an electric pump and
hoses.
The water draw is limited to 30 minutes per day and no
more than 6,000 gallons per day, and then only when
the stream flow is above 4.5 cubic feet per second (cfs).
The operators of the project sought and received
approval from the Forest Service.
Approval Challenged
In 2012, the Klamath Siskiyou Wildlands Center
and Klamath Forest Alliance sued the Forest Service
in the U.S. District Court for the Eastern District
of California. The plaintiffs argued that the Forest
Service’s review and approval of the mining project
violated the National Environmental Policy Act, the
National Forest Management Act, the 1872 Mining
Law and the federal Administrative Procedure Act.
Both parties moved for summary judgment. Judge
Troy L. Nunley denied the plaintiffs’ motion and
granted the defendant’s motion.
Theplaintiffsarguedthatthewaterwithdrawalsfromthe
Salmon River may be detrimental to fish species at the
milling site. Judge Nunley said the plaintiffs produced
no evidence that detrimental effects will occur.
Water Estimates Not Inadequate
As to water withdrawals from the McNeal Creek,
Judge Nunley said he did not find the Forest Service’s
measurements for flow rate in its environmental assess-
ment (EA) to be inadequate.
The judge said there is insufficient indication at this
point that the mining operator will fail to comply with
the project design features (PDFs), including the lim-
itation on water withdrawals when stream flow is below
4.5 cfs.
‘‘If the Proponent [Wabuska] is not able to draw water
from McNeal Creek between July and October, then
that is the consequence of the PDFs established in the
EA and the SIR [Supplemental Information Report],’’
the judge wrote. ‘‘However, without more, the Court
will not presume that the Project cannot comply with
its plan of operations, and that Defendants’ approval
was therefore arbitrary, capricious, unlawful, or resulted
from an abuse of discretion.’’
In addition, Judge Nunley said project documents do
not show that the access road to the mining sites, the
11

water line and the haul route are within riparian
reserves. He said the HYDRO-8 section of the PDF
appears to partially address the plaintiffs’ concerns
regarding ground-disturbing activities within riparian
reserves.
Counsel
The plaintiffs are represented by Courtney B. Johnson
and Ralph O. Bloemers of the Crag Law Center in
Portland, Ore., and Rachael M. Fazio of the John
Muir Project in Big Bear City, Calif.
The Forest Service is represented by John Tustin of the
U.S. Justice Department in Washington, D.C. I
New Environmental Study
Ordered By Judge, But
Water Bank Will Stay Open
SACRAMENTO, Calif. — A California state court
judge on Oct. 2 ordered the state water department to
conduct a new environmental impact report (EIR) for
the Kern Water Bank but denied a suggestion to shut
down the bank, saying that to do so in a historic drought
would be ‘‘irresponsible’’ (Central Delta Water Agency,
et al. v. California Department of Water Resources,
et al., No. 34-2010-80000561; Rosedale-Rio Bravo
Water Storage District, et al. v. California Department
of Water Resources, et al., No. 34-2010-80000703,
Calif. Super., Sacramento Co.).
(Joint ruling available. Document #95-141023-
030Z.)
In separate cases, plaintiffs challenged the state’s EIR
for the Monterey Plus Project under the California
Environmental Quality Act. The Monterey Plus Pro-
ject is a reworking of a contract governing the operating
and management of the State Water Project long-term
water supply contracts.
The challenges were ﬁled in the Sacramento County
Superior Court; in March, the court ruled that the EIR
was defective in that it failed to adequate describe, ana-
lyze and mitigate the potential impacts associated with
the anticipate use and operation of the Kern Water
Bank, a 30-square-mile area for water conservation
and storage. The court then scheduled a hearing to
discuss an appropriate remedy.
Judge Timothy M. Frawley said the case presents a
dilemma because the EIR came about 15 years after
the California Department of Water Resources ap-
proved and completed transfer of the Kern Water
Bank lands to an authority. The Central Delta Water
Agency and other plaintiffs recommended voiding
the EIR.
Judge’s Remedies
In his March ruling, Judge Frawley said he would resist
calls to ‘‘unwind’’ what has been done.
In his Oct. 2 decision, Judge Frawley ruled:
That the use and operation of the Kern Water Bank
is severable from the remainder of the Monterey
Plus Project.
That the prior project approvals should remain in
place.
That the court will not enjoin the use and operation
of the Kern Water Bank pending compliance with
the California Environmental Quality Act.
That the Department of Water Resources’ addi-
tional environmental review should not be geogra-
phically limited to the impacts of the Kern Water
Bank on neighboring lands.
That the entire EIR will be decertiﬁed.
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12

That the Department of Water Resources will file
an initial return indicating the steps it proposes to
take to comply with the court’s writ.
That the petitioners are the prevailing parties and
can seek attorney fees.
Judge Frawley said that suspending the Kern Water
Bank operations is ‘‘contrary to the public interest’’ be-
cause ‘‘The point of having a water bank is primarily
to provide water in times of shortage.’’ He noted that
2013 was California’s driest year on record and 2014
‘‘is no better.’’
‘Reckless And Irresponsible’
‘‘A growing number of communities in California could
end up without any water,’’ the judge continued. ‘‘The
Kern Water Bank is a nearly 20,000 acre underground
reservoir capable of storing approximately one million
acre-feet of water (or about 326 billion gallons of
water). For the court to order the Kern Water Bank
to suspend operations at this time, under these condi-
tions, would be reckless and irresponsible.’’
Shutting down the Kern Water Bank would also cause
environmental harm to endangered and threatened
species, the judge added. He said suspending operations
would potentially result in 17,000 acres of land becom-
ing fallow and creating ‘‘Dust Bowl’’ conditions.
The Central Delta Water Agency is represented by
Dante John Nomellini Jr. of Nomellini, Grilli
McDaniel, S. Dean Ruiz of Harris, Perisho Ruiz
and John Herrick of the Law Office of John Herrick,
all in Stockton, Calif.
The California Department of Water Resources is
represented by Daniel M. Fuchs of the California Attor-
ney General’s Office in Sacramento, Eric M. Katz and
Marilyn H. Levin of the Attorney General’s Office in
Los Angeles and Mary U. Akens of the Department of
Water Resources in Sacramento. I
California Appeals Court
Won’t Rehear Russian River
Water Rights Case
SAN FRANCISCO — A California appeals court panel
on Oct. 14 said it will not rehear a case in which it
found that the state water board used the wrong legal
standing in deciding if a county water district had for-
feited its right to divert water from the Russian River
(Millview County Water District, et al. v. State Water
Resources Control Board, et al., No. A139481, Calif.
App., 1st Dist., Div. 1).
(Opinion in Section F. Document #95-141023-
020Z. Modified opinion and order denying rehear-
ing available. Document #95-141023-021Z.)
In 2001, the Millview County Water District (Millview)
began diverting water from the Russian River under
authority of a pre-1914 appropriative water right as-
signed to it by Thomas Hill and Steven Gomes. After
a citizen complaint and following an evidentiary hear-
ing, the California State Water Resources Control Board
issued a cease-and-desist order (CDO) substantially
restricting Millview’s diversion, finding that the ap-
propriative water right had been largely forfeited by a
period of diminished use from 1967 to 1987.
Millview, Hill and Gomes filed a petition for a writ of
mandate in the Mendocino County Superior Court
requiring the board to set aside its CDO. They argued
that the board lacked jurisdiction to limit appropriation
under the pre-1914 water right and that the evidence
did not support the board’s finding of a forfeiture be-
cause there was no evidence of a timely adverse claim
of use.
Pre-1914 water rights are not subject to a permit or
license issued by the board.
Board Used Wrong Standard
The trial court granted the writ. The board and inter-
venor Sonoma County Water Agency appealed.
A panel of the First District California Court of Ap-
peal on Sept. 11 affirmed the writ and directed the
board to set aside its decision, but on narrower grounds
than the trial court.
‘‘We conclude the Board does have jurisdiction under
[California] Water Code section 1831 to issue a CDO
precluding excessive diversion under a pre-1914 right
to appropriate and the Board properly determined the
original perfected scope of the claim,’’ the panel wrote.
13

‘‘We conclude, however, the Board applied an incorrect
legal standard in evaluating the forfeiture of Millview’s
claimed water right and, applying the proper legal stan-
dard, the evidence before the Board was insufficient to
support a finding of forfeiture,’’ the panel continued.
‘‘We remand to the Board for reconsideration in light of
our decision.’’
Rehearing Petition
Millview petitioned the appeals court for a rehearing.
It argued that original landowner J.S. Waldteufel could
have perfected an appropriative right by use of water on
riparian lands merely by expressing an intent that his
use be considered appropriative. The panel said the case
cited by Millview ‘‘contains no suggestion that a person
who already owns riparian land can acquire appropria-
tive rights and contains no suggestion that a person who
already owns riparian land can acquire appropriative
rights by use of water on that land.’’
‘‘Such a holding would be entirely inconsistent with the
rules governing perfection of an appropriate right under
California water law,’’ the panel concluded.
The panel denied the rehearing petitions of Sonoma
County, Gomes and Hill.
Although the panel corrected its original opinion in
five places, it did not change its judgment.
Panel, Counsel
The opinions were written by Acting Presiding Justice
Sandra L. Margulies. The other panel members were
Justices Robert L. Dondero and Kathleen M. Banke.
The board is represented by Attorney General Kamala
D.Harris,AssistantAttorneyGeneralGavinG.McCabe
and Deputy Attorney General William Jenkins of the
Attorney General’s Office in San Francisco. Sonoma
County Water Agency is represented by Alan B. Lilly
and Andrew J. Ramos of Bartkiewicz, Kronick, Sha-
nahan in Sacramento, Calif.
Millview is represented by Christopher J. Neary and
Jennifer O’Brien of Neary O’Brien in Willits, Calif.
Gomes and Hill are represented by Jared G. Carter,
Matisse M. Knight and Alexander C. Rich of Carter,
Momsen Knight in Ukiah, Calif.
Intervenor Mendocino County Russian River Flood
Control and Water Conservation Improvement Dis-
trict is represented by Michael R. Woods of the Law
Office of Michael R. Woods in Sonoma, Calif. I
Group Seeks Mandate For State
Water Board To Study
Ventura’s Water Use
SAN FRANCISCO — An advocacy group on Sept. 19
asked a California state court to mandate that the state
Water Resources Control Board prevent unreasonable
use of water from part of the Ventura River (Santa
Barbara Channelkeeper v. State Water Resources Con-
trol Board, et al., No. CPF-14-513875, Calif. Super.,
San Francisco Co.).
(Petition available. Document #95-141023-024C.)
In a petition filed in the San Francisco County Superior
Court, Santa Barbara Channelkeeper seeks a declara-
tory judgment that the use of Reach 4 of the Ven-
tura River by the City of Buenaventura (commonly
known as Ventura) is unreasonable and in violation
of Article X, Section 2 of the California Constitution,
which requires that all waters in California be put to
beneficial use.
The petition also seeks a writ of mandate compelling
the California State Water Resources Control Board
to analyze Ventura’s pumping and diversion of water
from Reach 4 ‘‘based on existing conditions in the
River, which have changed since Ventura began its
use of the River, and to consider the impacts to public
trust resources resulting from Ventura’s use of Reach 4’’
as required by the state constitution and the Public
Trust Doctrine.
Danger To Steelhead Trout
The petition says Ventura takes water from Ventura
River under a pre-1914 claim and is not required to
apply for or have permit or license to do so. It says
Ventura’s water right was first put to use in 1870.
Santa Barbara Channelkeeper says that after storm
damage in 2005, the National Marine Fisheries Service
stated that resumed pumping and diversion in the
Foster Park vicinity of Ventura River would likely
14

jeopardize the continued existence of the Southern
California steelhead trout and its critical habitat. The
group says Venture did not perform the repairs but
continued to operate five water production facilities,
which it says threatens the steelhead trout.
Santa Barbara Channelkeeper is represented by Daniel
Cooper and Caroline Koch of Lawyer for Clean Water
Inc. in San Francisco. Counsel for the defendants have
not yet entered appearances. I
California Appeals Court
Affirms $445,005 Attorney Fee
Award In Water Policy Case
SAN FRANCISCO — A California appeals court on
Oct. 15 affirmed a lower court’s award of $445,005 in
attorney fees to an environmental group that success-
fully challenged a state water board policy (Living Riv-
ers Council v. State Water Resources Control Board,
No. A138723, Calif. App., 1st Dist., Div. 5; 2014 Cal.
App. Unpub. LEXIS 7321).
The California State Water Resources Board adopted
the Policy for Maintaining Instream Flows in Northern
California Coastal Streams as required by the California
Water Code Section 1259.4. The policy was to ensure
that the administration of water rights maintains
instream flows needed to protect fishery resources.
In connection with the policy, the board certified a
substitute environmental document (SED) indicating
that the policy may cause depletion of instream flows
because of increased groundwater extraction and use.
Group Sought Mandate
The Living Rivers Council petitioned the Alameda
County Superior Court for a writ of mandate. The
council alleged that the policy and SED violated the
California Environmental Quality Act (CEQA, Public
Resources Code 21000, et seq., California Code Re-
gulations Title 23, 3775, et seq.) by failing to identify,
analyze and disclose mitigation measures for the policy’s
environmental impacts.
The Superior Court granted the writ of mandate and
directed the board to vacate the policy.
The court also awarded Living Rivers $445,005
in attorney fees under California Code of Civil Proce-
dure Section 1021.5. Living Rivers had sought fees of
$602,211.
The court reduced the fee award after calculating the
fees lodestar amount and decreasing it to account for
the Living Rivers’ partial success. The court also applied
a multiplier of 1.5 based on the contingent risk Living
Rivers’ counsel assumed in taking the case.
Group Was Successful
The boardappealedtothe First District Court of Appeal,
arguing that Living Rivers was not a successful party,
that the litigation did not confer a significant non-
pecuniary benefit to the general public, that the litiga-
tion was not necessary to achieve the results obtained
and that the lower court’s lodestar reduction was in-
sufficient and the multiplier was an abuse of discretion.
The appeals court panel found that Living Rivers was
the prevailing party under Section 1021.5.
‘‘Here, but for Living Rivers’s petition for writ of
mandate, the court would not have concluded that
the Board failed to disclose there would be little or no
CEQA review of the anticipated increased use of per-
colating groundwater in four of the five affected coun-
ties,’’ the panel wrote.
The panel was also not persuaded by the board’s argu-
ment that Living Rivers did not raise the issue of
groundwater delineations until it filed its trial brief. It
said there is no authority cited requiring Living Rivers
to raise an issue during the administrative process or in
the initial filing in order to be considered a prevailing
party.
The appeals court panel also rejected the board’s argu-
ment that this is a ‘‘catalyst’’ case, rather than getting a
favorable judgment. It said Living Rivers got judicial
relief.
Significant Public Benefit
The panel also found that Living Rivers’ litigation con-
ferred a significant nonpecuniary benefit to the general
public. It said the public ‘‘will benefit significantly
from disclosure of additional information assessing
the legal framework for mitigating the expected in-
crease in the use of percolating groundwater.’’
15

In addition, the appeals panel said the necessity of pri-
vate enforcement made the attorney fee award appro-
priate. The panel said there were settlement discussions
between the parties but said that the trial court’s con-
clusion was not an abuse of its discretion.
The amount of the fees awarded was also within the trial
court’s discretion, the panel said. It noted that it rejected
the argument that Living Rivers did not prevail.
The panel also disagreed with the board that the con-
tingency risk was not a basis for the 1.5 multiplier.
Panel, Counsel
The opinion was written by Presiding Justice Barbara
J.R. Jones. The other panel members were Justices
Mark B. Simons and Terence L. Bruiniers.
Living Rivers is represented by Thomas N. Lippe of
the Law Offices of Thomas N. Lippe in San Francisco.
The board is represented by Anita E. Ruud and Wil-
liam N. Jenkins of the Attorney General’s Office in San
Francisco. I
New California Law Regulates
Groundwater Resources
SACRAMENTO, Calif. — Calif. Gov. Edmund G.
Brown on Sept. 16 signed legislation that will regulate
for the first time the state’s groundwater resources.
Brown signed Assembly Bill 1739 and Senate Bills
1168 and 1319.
According to the governor’s office, the bills establish a
definition of sustainable groundwater management and
require local agencies to adopt management plans for
the state’s most important groundwater basins. The laws
prioritize groundwater basins that are currently over-
draftedandsetthefollowingtimelinesforimplementation:
By 2017, local groundwater management agencies
must be identified.
By 2020, overdrafted groundwater basins must have
sustainability plans.
By 2022, other high- and medium-priority basins
not currently in overdraft must have sustainability
plans.
By 2040, all high- and medium-priority ground-
water basins must achieve sustainability.
State Could Intervene
In addition, the legislation provides measurable ob-
jectives and milestones to reach sustainability and give
the state government a role of limited intervention
when local agencies are unable or unwilling to adopt
sustainable management plans.
California is in the midst of what may be its longest and
most severe drought in the past 500 years. With surface
water resources drying up, attention has focused on
preserving groundwater resources. I
Montana Supreme Court
Upholds Water Court’s
Dismissal Of Claim Objection
HELENA, Mont. — An objector to a water diversion
application failed to present evidence that the holder
put the water to beneficial use, that the diversion
involved a separate water source and that the holder
abandoned its rights, the Montana Supreme Court
ruled Sept. 16 (Donald C. Marks v. 71 Ranch, LP,
No. DA 13-0489, Mont. Sup.; 2014 Mont. LEXIS
589).
(Opinion in Section A. Document #95-141023-
001Z.)
In 1982, Louise R. Galt, widow of Wellington Rankin,
filed statements of claim for water rights held by 71
Ranch LLP on Confederate Creek. The claim was for
the upper portion of Confederate Creek, about three
miles upstream of the former downstream diversion
location.
Donald C. Marks, who also holds water rights on
Confederate Creek and who is located between 71
Ranch’s claimed upstream location and its former
downstream location, objected to the place of use and
to the point of diversion. Marks’ rights are junior to the
creek rights of 71 Ranch.
Water Master’s Decision
In 2002, a water master dismissed Marks’ objection,
finding that the points of diversion on Confederate
16

Creek were changed between a 1940 decree (the Ran-
kin decree) and July 1, 1973. He said Marks failed to
rebut 71 Ranch’s statement of claim.
Marks objected to the water master’s findings and
renewed his objections to the Montana Water Court.
The court affirmed the water master’s findings and
conclusions of law.
Marks appealed to the Montana Supreme Court. He
argued that the creek rights were not beneficially used
prior to July 1, 1973, that the upper and lower portions
of Confederate Creek have different water supply
sources and that 71 Ranch abandoned its creek rights.
Commissioner’s Records Not Probative
In support of his first argument, Marks submitted cer-
tain records of the Confederate Creek water commis-
sioner that he said show that on specific dates, there was
not more than 360 miner’s inches of water delivered
to the upstream location.
The Montana Supreme Court concluded that the water
master did not misinterpret the effect of the water com-
missioner records. ‘‘The records offer little to demon-
strate the historical amount of water utilized at the
upstream location,’’ the court wrote.
Since water commissioners are usually appointed when
there is insufficient water flow to satisfy all rights to a
source, the court said the records submitted by Marks
may only reflect flow during low-flow years. It said
there was a complete absence of flow data for 18 years.
The court said the water master did not err by deter-
mining that the water commissioner records ‘‘have little
probative value concerning whether the Creek Rights
were beneficially used at the upstream location.’’
No 2-Source Evidence
Marks’ argument that the Confederate Creek has sepa-
rate water sources was supported by the testimony of
the 2002 water commissioner. But the Supreme Court
said that his testimony seemed to conflict with Marks’
testimony.
The water master ‘‘properly afforded’’ weight to the
Rankin decree, which the court said ‘‘provided the
most objective evidence of Confederate Creek’s char-
acteristic prior to July 1, 1973.’’ ‘‘In light of the Rankin
Decree and in the absence of any reliable evidence that
the upper and lower portions of the Confederate Creek
are sourced separately, the Water Master correctly com-
prehended the evidence,’’ the court wrote.
‘‘Substantial evidence supports the Water Master’s find-
ings and our review of the record does not leave us with
a definite and firm conviction that a mistake has been
made,’’ the court continued.
No Abandonment
Finally, Marks argued that the creek rights were aban-
doned because the water was not beneficially used and
the rights were dormant for more than 20 years. The
Supreme Court said Marks’ evidence is the same water
commissioner records he used for his argument that the
water was not beneficially used.
The Supreme Court said the water commissioner
records are inadequate, standing alone, to prove nonuse
of water and Marks’ abandonment argument ‘‘necessa-
rily fails.’’
‘‘We are not left with a definite and firm conviction
that the Water Master reached a mistaken conclusion,’’
the court said. ‘‘The Water Court appropriately deter-
mined that Marks failed to present sufficient evidence
to demonstrate the Creek Rights were abandoned.’’
Justices, Counsel
The opinion was written by Justice Jim Rice. Justices
James Jeremiah Shea, Laurie McKinnon, Beth Baker
and Michael E. Wheat concurred.
Marks, of Helena, is self-represented. W. John Tietz
and Mark R. Taylor of Browning, Kaleczyc, Berry
Hoven and John P. Poston, all of Helena, represent 71
Ranch. I
Montana High Court Remands
Some Teton River Water Rights
Issues To Water Court
HELENA, Mont. — The Montana Supreme Court
on Oct. 7 affirmed in part and reversed in part a state
Water Court decision in water rights and diversion
along the Teton River (Eldorado Co-Op Canal Co.,
et al., No. DA 13-0709, Mont. Sup.; 2014 Mont.
LEXIS 608).
17

(Opinion in Section C. Document #95-141023-
005Z.)
MonteGiese,StevenKellyandWilliamReichelt,known
as the Lower Teton joint objectors, and intervenor Pat-
rick Saylor appealed an order from the Montana Water
Court that amended a water master’s report. They ar-
gued that the Water Court erred in amending the report
finding that Saylor was a party to a historical water
exchange or substitution plan under which Saylor pro-
vided the source of carriage water used to deliver water
to the Choteau Cattle Co. through the Bateman Ditch.
The objectors and Saylor also said the Water Court
erred by including Choteau Cattle on the tabulation
of water rights authorized to divert water from the
Teton River into the Bateman Ditch under a water
rights exchange or substitution plan that was not
claimed by any person.
Finally, the objectors and Saylor said the Water Court
erred in its decision that water rights in addition to
Choteau Cattle can be diverted from the Bateman
Ditch.
Appropriation Rights
The objectors hold appropriation rights from the lower
Teton River in Choteau County, Mont. In 2011, they
sued water commissioners appointed by the Ninth
Judicial District Court to administer certain water
rights diverted from the Teton River under a 1908
water rights decree in Perry v. Beattie (Cause 371,
9th Jud. Dist.).
The objector’s rights are not included in the Perry
decree. The objectors claimed that the water commis-
sioners’ practice of diverting water out of the Teton
River and into the Bateman Ditch harmed them by
depriving the river aquifer of recharge water.
The District Court dismissed the petition, and the
objectors appealed. The Montana Supreme Court
reversed and remanded with instructions to certify all
appropriate issue to the chief water judge.
The Water Court combined the objectors’ claims
with another case. A water master issued a report, and
after objections were filed, a water judge amended the
findings of fact.
The objectors again appealed to the Supreme Court.
No Private Right
On the first issue, the high court said the Water Court
erred by concluding that the Bateman Ditch divert
to supply water to Choteau Cattle is a private right
held by Saylor. It said that conclusion is contrary
to the statutory roles of district courts and water com-
missioners in administering and overseeing water
rights.
‘‘Whereas the Water Court invested ‘Saylor with the
option of delivering (the Choteau Cattle) claim . . .
through the Bateman ditch, (but) he is not obliged to
do so,’ that power rests in the District Court and its
appointed Water Commissioner,’’ the high court wrote.
‘‘It is not Saylor’s right or duty to administer the water
rights of others any more than it is the right or duty
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18

of Eldorado or any other upstream junior right holder.
That is a management tool available to the District
Court and its Water Commissioner, as it has been for
many decades on the Teton River.’’
The court remanded the issue to the Water Court to
modify its decision to the extent that the water com-
missioner, under the supervision of the District Court,
may determine whether and when to use the Bateman
Ditch to deliver water to Choteau Cattle. It said that if
the objectors then claim to suffer adverse effects, they
can seek relief from the District Court.
OK To List Water Rights
On the second issue, the Supreme Court said that the
Water Court did not err in providing a listing of water
rightsthatcanbedivertedthroughtheBatemanDitch.It
said that since the use of the Bateman Ditch to deliver
water to Choteau Cattle is a management tool and not a
right personal to Saylor, ‘‘it does not matter he claimed
the right todosointhe waterrightadjudicationprocess.’’
‘‘We conclude that the Water Court acted properly in
listing the water rights that can be diverted through the
Bateman Ditch,’’ the court wrote.
On the third and final issue, the Supreme Court said
the Water Court did not err when it declined to list two
other water rights in a tabulation of rights that can be
diverted through the Bateman Ditch. It agreed with the
Water Court that the two rights ‘‘had only rarely been
diverted down the Bateman Ditch.’’
In addition, the high court said the owners of the two
rights were not involved in the appeal.
Court, Counsel
The opinion was written by Chief Justice Mike Mc-
Grath. The other court members were Justices Patricia
Cotter, Michael E. Wheat, Beth Baker and Jim Rice.
Giese, Kelly and Reichelt are represented by Stephen R.
Brown of Garlington, Lohn Robinson in Missoula,
Mont. Eldorado Co-Op is represented by John E.
Bloomquist of the Bloomquist Law Firm in Helena.
Saylor is represented by Michael J.L. Cusick and
Abigail R. Brown of Moore, O’Connell Fefling in
Bozeman, Mont. I
Idaho Supreme Court Affirms
Deed Correction To Clarify
Lack Of Water Rights
BOISE, Idaho — The Idaho Supreme Court on Sept.
19 affirmed a lower court’s decision to correct a deed
that mistakenly transferred water rights (Jay Brown,
et al. v. Augusto Sayoko Mimoto Greenheart, No.
41189, Idaho Sup., Boise, August 2014 Term, 2014
Opinion No. 100, Idaho Sup.; 2014 Ida. LEXIS 259).
In 1988, Jay Brown and Christine Hopson-Brown
acquired a 320-acre parcel of land in Elmore County,
Idaho. In 2000, the Browns were granted two water
rights for the property.
In 2009, the Browns sold 60 acres of unirrigated prop-
erty to Augusto Sayoko Mimoto Greenheart. The
Browns did not intend to transfer their water rights
for the acreage.
Greenheart acknowledged being told the land was ‘‘dry’’
and bought it sight unseen. The purchase and sale
agreement stated that water rights were included and
did not list an exclusion. However, a box about pay-
ment for water rights was checked ‘‘not applicable,’’ and
a seller’s disclosure form also stated that irrigation
water was not applicable.
Transfer Language Discovered
In 2007, Greenheart challenged her tax classification
as ‘‘irrigated agriculture,’’ arguing that it should be re-
classified at a lower tax rate for dry-grazing.
In 2012, the City of Mountain Home, Idaho, offered
to purchase the Browns’ water rights for $2,000 per
acre. It was discovered that the ‘‘appurtenances’’ lan-
guage in the deed may have conveyed a portion of
the water rights to Greenheart.
Later that month, Greenheart filed a notice of change
of water right ownership with the Idaho Department
of Water Resources and the department revised its
records to reflect that change.
The Browns filed a quiet title complaint in 2012.
Greenheart argued that the statute of limitations ex-
pired. Both moved for summary judgment.
19

Mutual Mistake
After a 2013 bench trial, the Elmore County District
Court ruled that a mutual mistake was made when the
warranty deed included unqualified appurtenances
language. It said the Browns were entitled to equitable
relief on the grounds of quasi-estoppel and waiver.
The District Court reformed the warranty deed to ex-
clude and reserve the water rights to the Browns. The
court also found that the transaction was commercial
and awarded attorney fees to the Browns.
Greenheart appealed.
Limitations Started With Claim
The Supreme Court said Idaho’s four-year statute of
limitations did not preclude the Browns’ quiet title
action. It said the statute did not begin to run until
Greenheart claimed the water rights.
Likewise, the court said the finding of a mutual mistake
was not barred by a three-year statute of limitations. It
agreed that the statute did not begin to run until the
Browns were informed of the mistake by an attorney.
Greenheart also argued that the District Court erred in
finding a mutual mistake because the Browns did not
plead one. The Supreme Court found that the Browns
sufficiently pleaded circumstances to show that a mis-
take was at issue.
Claims Raised On Appeal
Greenheart’s claim that the Browns’ action was barred
by quasi-estoppel or waiver was not pleaded before the
District Court, the Supreme Court said, and cannot be
raised on appeal. It said the same applied to Green-
heart’s claim of negligence.
The high court also agreed with the District Court that
the purchase and sale agreement, as a whole, was am-
biguous about water rights. It said the District Court
did not err in examining extrinsic evidence to resolve
the ambiguity.
Finally, the Supreme Court said the District Court
was correct in finding that the transaction was com-
mercial and that the Browns are entitled to attorney
fees. It noted evidence that Greenheart leased the
land for grazing.
Author, Counsel
The opinion was written by Senior Justice Jesse
Walters, sitting pro tem, and the other four justices
concurred.
Michael C. Creamer of Givens Pursley in Boise repre-
sented the Browns. Victor Villegas of Borton Lakey Law
Offices in Meridian, Idaho, represents Greenheart. I
N.M. Ranchers Denied TRO
Against Grazing Closure For
New Endangered Species
ALBUQUERQUE, N.M. — A New Mexico federal
judge on Oct. 9 denied issuance of a temporary restrain-
ing order sought by 32 ranchers against the U.S. Forest
Service for closing off parts of two national forests from
cattle grazing in order to protect a new endangered
species (San Diego Cattlemen’s Cooperative Associa-
tion, et al. v. Tom Vilsack, et al., No. 14-818, D. N.M.).
(Opinion and order in Section D. Document #95-
141023-015Z.)
After an Oct. 3 hearing, Judge Robert C. Brack of the
U.S. District Court for the District of New Mexico
said he is ‘‘unconvinced that the temporary fences will
cause the Plaintiffs irreparable injury.’’
‘‘Furthermore, the Court finds that the Plaintiffs’
chances of succeeding on the merits and the balance
of equities tip in the Government’s favor,’’ he continued.
Lincoln, Santa Fe National Forests
On Sept. 8, the San Diego Cattlemen’s Cooperative
Association, ranchers and other rancher associations
sued U.S. Agriculture Secretary Tom Vilsack and
other federal officials in federal court, seeking a tem-
porary restraining order and a preliminary injunction.
The plaintiffs allege that the government violated the
federal National Environmental Policy Act (NEPA)
and the Administrative Procedure Act in declaring the
New Mexico meadow jumping mouse an endangered
species and taking or proposing to erect fences to pro-
tect the animal’s ‘‘occupied habitat’’ in the Lincoln
National Forest and the Santa Fe National Forest.
(Complaint available. Document #95-141023-002C.)
20

The plaintiffs say the government’s actions close ripar-
ian areas in the Lincoln National Forest on which some
of them have grazing rights. They also say the govern-
ment proposed fencing on riparian lands in the Santa Fe
National Forest on which they also have grazing rights.
The plaintiffs say that the defendants have ‘‘publically
admitted’’ that they have ‘‘made no scientific inquiry or
assessment of the habitat or range conditions at the
proposed locations for removing cattle grazing.’’ They
say the government has not identified any statutory or
regulatory provisions creating a duty to protect the
jumping mouse’s occupied habitat.
No Environmental Reviews
The plaintiffs say the government failed to undertake
environmental reviews required by the NEPA.
‘‘In addition, the Forest Service has ignored the fact that
the range management practices set forth in the grazing
permits are protective of the riparian areas as issue and
there is no evidence of impacts from cattle grazing on
these areas.’’
‘‘A recent inspection of the San Diego Allotment [in the
San Diego National Forest] indicated that the riparian
areas in question are in excellent shape under current
range management practices, with very little to no evi-
dence of grazing by cattle or of impacts from grazing by
cattle, although the cattle currently have uninhibited
ingress and egress from the areas,’’ the plaintiffs say.
The Forest Service argued that its decision to erect tem-
porary fences to prevent further habitat loss while ex-
ploring a permanent solution is a categorical exclusion
of the Administrate Procedure Act.
No Full NEPA Review
‘‘The Forest Service’s actions do not fit comfortably in
the administrative exclusions set forth in section (d),
nor do they perfectly match the listed exclusions in
section (e),’’ Judge Brack wrote. ‘‘But the Defendants
have a reasonable argument that temporary measures,
lasting a year or less, do not have ‘a significant effect on
the human environment’ and thus are categorically
excluded from full NEPA review.’’
‘‘Moreover, the Plaintiffs have not made a ‘strong
showing’ that the decision was arbitrary and capricious,
or unrelated to rational decision-making,’’ the judge
continued. ‘‘Looking at the high standard for pre-
liminary injunctions, and at the heavy burden the
Plaintiffs must ultimately bear, the Court feels that
this prong tips in the Government‘s favor.’’
As to the irreparable harm requirement, Judge Brack
said ‘‘Ultimately, the Court is not persuaded by any
of the three injuries that the Plaintiffs put forth. The
injuries at issue in this action must relate only to the
temporary fencing — the final decisions to close habitat
are not before the Court.’’
No Irreparable Harm Shown
‘‘The Court does not see how the temporary fencing
will injure the Plaintiffs in any way that cannot be
remedied by economic damages,’’ he continued. ‘‘This
finding alone is sufficient to defeat the Plaintiffs’
motion for a preliminary injunction.’’
Judge Brack also found that the ‘‘balance of equities’’
favors the government.
While the Forest Service must consider ‘‘the full pano-
ply of human and environmental impacts,’’ Judge Brack
said ‘‘the only issue before the Court at this time is
whether the Plaintiffs met their heavy burden to show
that Defendants’ actions — all temporary in nature —
must be stopped and reversed immediately, before
holding a trial on the merits. Such an order would be
an extraordinary remedy.’’
‘‘The Court is unconvinced that the temporary fences
will cause the Plaintiffs irreparable injury,’’ the judge
continued. ‘‘Furthermore, the Court finds that the
Plaintiffs’ chances of succeeding on the merits and
the balance of equities tip in the Government’s favor.’’
Counsel
The plaintiffs are represented by Pete Domenici Jr.
and Lorraine Hollingsworth of the Domenici Law
Firm in Albuquerque. The Otero County Cattlemen’s
Association is also represented by A. Blair Dunn of
Albuquerque.
The government is represented by Andrew A. Smith
and Karen Grohman of the U.S. Attorney’s Office in
Albuquerque and Stuart C. Gillespie of the U.S. Justice
Department in Washington, D.C. I
21

Nevada Federal Judge
OKs Changes To
Orr Ditch Decree
LAS VEGAS — A Nevada federal judge on Sept. 30
granted a motion to amend or alter the 1944 Orr Ditch
Decree, saying circumstances have changed and the
court has authority to alter past decrees (United States
of America v. Orr Water Ditch Co., et al., No. 3:73-cv-
31, D. Nev.; 2014 U.S. Dist. LEXIS 139542).
(Order in Section B. Document #95-141023-003R.)
The Orr Ditch Decree was a final decree to resolve a
water rights dispute. It incorporated the Truckee River
Agreement, which provides a management framework
for the operation of a river system through the upstream
storage and release of waters.
The United States, Nevada, California, the Pyramid
Lake Paiute Tribe, the Truckee Meadows Water
Authority, the Washoe County Water Conservation
District and the Town of Fernley, Nev., filed a motion
asking the U.S. District Court for the District of
Nevada to adopt the new Truckee River Operating
Agreement (TROA) and to largely supersede the
Truckee River Agreement as the operating agreement
for the river system. The modifications would modify
the ‘‘Floristan Rates,’’ implement an interstate alloca-
tion of the Truckee River and Lake Tahoe water basins
and address claims by the Pyramid Lake Paiute Tribe to
the remaining Truckee River water.
The motion was opposed by Truckee-Carson Irrigation
District, the City of Fallon, Nev., Churchill County,
Nev., and numerous other respondents.
‘Extensive’ Changes Occurred
‘‘Having considered all of the arguments, the Court
concludes that it has authority to modify all provisions
of the Orr Ditch Decree, that legal and factual circum-
stances have changed since the Orr Ditch Decree was
entered, that those changes warrant modification of the
Orr Ditch Decree, and that the proposed modifica-
tions, while complex and extensive, are suitably tailored
to the extensive changes that have occurred, which
changes reflect and establish the need to modify the
existing operating framework for managing a complex
river system to provide a flexibility necessary to manage
water rights for competing and complementary uses,
while also ensuring the protection of existing Decreed
water rights,’’ Judge Lloyd D. George wrote.
Judge George rejected the opposing parties’ argument
that the court’s authority to modify the Orr Ditch
Decree is limited and modifications must be done
with the consent of all parties to the agreement. The
judge said he has authority to modify the decree because
the Truckee River Agreement ‘‘no longer remains a
contract separate from the Orr Ditch Decree, but was
incorporated into the Decree.’’
The judge said that the moving parties submitted
extensive evidence that there have been legal and factual
changes to the Truckee River system since the entry
of the Orr Ditch Decree. Those changes include the
construction of additional rivers and increased public
awareness to protect and preserve species in basin
waters.
Can Consider All Changes
Judge George said he is ‘‘not limited to considering
only changed circumstances that are unexpected or
sudden, or of recent vintage, in determining whether
the changes that have occurred since the entry of the
Orr Ditch Decree render compliance with the Decree
substantially more onerous, or in determining if the
continued enforcement of the Decree without modi-
fication is detrimental to the public interest. Rather, in
determining whether modification is warranted, the
Court must consider all changed circumstances, includ-
ing the totality of all changed circumstances (regardless
of whether some of those changed circumstances were
expected, occurred long ago, or accrued slowly) since
the signing of the Orr Ditch Decree.’’
The United States is represented by Devon L. McCune
of the U.S. Justice Department in Denver, Fred R.
Disheroon and Stephen M. Macfarlane of the Justice
Department in Sacramento, Calif., Gregory W.
Addington of the U.S. Attorney’s Office in Reno,
Nev., and James B. Cooney of the Justice Department
in Washington, D.C.
California is represented by Daniel M. Fuchs of the
California Attorney General’s Office in Sacramento.
Nevada is represented by Bryan L Stockton and
Marta A. Adams of the Nevada Attorney General’s
Office in in Carson City, Nev.
22

The Truckee Meadows Water Authority is repre-
sented by Dale E. Ferguson and Gordon H. DePaoli
of Woodburn Wedge in Reno, Osha R. Meserve of
Soluri, Emrick Meserve in Sacramento and Susan L.
Oldham of Verdi, Nev.
Additional Counsel
The Pyramid Lake Paiute Tribe is represented by Don
Springmeyer and Christopher W. Mixson of Wolf,
Rifkin, Shapiro, Schulman Rabkin in Las Vegas.
The Town of Fernley is represented by Rebecca A.
Harold of Fernley and Paul G. Taggart of Taggart
Taggart in Carson City, Nev.
Churchill County is represented by Laura A Schroeder
of the Schroeder Law Offices in Reno, Churchill Dis-
trict Attorney Craig Mingay in Fallon and Rusty D.
Jardine of the Truckee Carson Irrigation District in
Fallon. The City of Fallon is represented by Michael
F. Mackedon of Mackedon, McCormick King and
Steven King, both of Fallon.
The Truckee-Carson Irrigation District is represented
by Michael J. Van Zandt of Hanson Bridgett in San
Francisco and Lyman F. McConnell of LFM Ltd. in
Fallon. I
Pennsylvania Appeals Court
Partly Reverses Summary
Judgment Against Ski Resort
HARRISBURG, Pa. — A Pennsylvania appellate
panel on Oct. 14 partially reversed summary judgment
that ordered a ski resort to stop using water for snow-
making from a pond and to close off a breach that let
water flow from a neighboring lake into the ski resort’s
pond (Village of Four Seasons Association, Inc. v. Elk
Mountain Ski Resort, Inc., No. 996 MDA 2013, Pa.
Super., 2014 Pa. Super. LEXIS 3437).
(Opinion in Section E. Document #95-141023-
018Z.)
Elk Mountain Ski Resort Inc. (Elk) draws water for
snowmaking in part from Elk Pond, which is connected
via a breached berm to neighboring Village Lake. Village
Lake is owned by the Village of Four Seasons Associa-
tion Inc. (Village), a vacation resort.
As part of a larger dispute between Elk and Village,
Village moved in the Susquehanna County Common
Pleas Court for an injunction to stop Elk from draw-
ing water from Village Lake. The trial court granted
Village’s cross-motion for partial summary judgment,
enjoined Elk from drawing water and ordered Elk to
close the break between the two bodies of water.
Elk appealed, arguing the trial court erred in finding
that Village owned the water in Village Lake; in deny-
ing that Village’s claims are barred by the reasonable-
use doctrine of riparian law, by latches and by Elk’s
irrevocable license; in finding that Elk could not estab-
lish that it had a prescriptive right to use the water in
question and that Village had indulged Elk’s use of the
water; and in ordering Elk to close the berm without
stating how it was to do so.
Does Water Flow Or Stand?
A panel of the Pennsylvania Superior Court found
that Village failed to meet the summary judgment stan-
dard because a factual dispute exists regarding whether
Elk Pond and Village Lake are nonflowing bodies of
water or part of a watercourse.
The panel said Elk has not waived its affirmative
defense of reasonable use. ‘‘The trial court erroneously
held that Elk needs to name the defense in new matter.
This Court has held otherwise,’’ the panel said, citing
Superior Court case law.
Citing Elk’s pleadings, the panel said that Elk pleaded
facts to support an inference of reasonable use of water
from Elk Pond.
The panel found that elk ‘‘put forth sufficient evidence
to overcome Village’s cross-motion for partial summary
judgment.’’ It cited testimony by Elk’s general manager
that Elk Pond is fed by or eventually flows into the East
Branch of Tunkhannock Creek.
Water Permits Not Determinative
The panel rejected Village’s argument that permits
issued by the Susquehanna River Basis Commission
decided riparian rights. ‘‘The SRBC does not adjudicate
property or riparian rights, and therefore its issuance
of permits is dispositive neither of the nature of Elk
23

Pond as a watercourse nor of the reasonableness of Elk’s
use of water under riparian law,’’ the panel wrote. ‘‘Its
issuance of permits, however, is sufficient to raise a
factual dispute that Elk Pond and, therefore, Village
Lake, are part of a watercourse that eventually drains
into the Susquehanna River.’’
The panel expressed no opinion on whether Elk can
meets its burden but said ‘‘we find that factual issues
exist regarding (1) whether Elk Pond and Village Lake
are land-locked bodies of water or part of a flowing
watercourse; and (2) if the latter is true, whether Elk’s
use of water is reasonable under riparian law.’’
The panel did agree with the trial court did not err in
rejecting Elk’s claim that it had a prescriptive easement.
Correspondence from 1980 shows Village consented to
Elk’s use of Village Lake, it continued.
‘‘Consent defeats a claim of adverse use,’’ the panel
continued. ‘‘Therefore, Elk cannot show that its use
of Village Lake was adverse for the requisite 21 years.’’
Doctrine Of Laches
The trial court also erred in ruling that the doctrine
of laches did not apply, the panel said. ‘‘Elk in fact raised
this defense in its defensive pleadings.’’
However, the panel said the error as to laches is harmless
since the panel finds that Elk did not meet its burden to
establish a laches claim. ‘‘More to the point, Elk’s laches
claim fails because, like its prescriptive easement claim,
Village’s consent or indulgence for Elk’s use of water,
as reflected in the 1980 letter, clearly stated Village
was willing to work with Elk on water, providing it
does not weaken Village’s dam, ruin its docks, or kill
Village’s fish,’’ the panel said.
‘‘Elk was on notice since 1980 it did not possess an
unfettered and indefinite right to rely upon Village’s
water,’’ the panel continued. ‘‘Village, in effect, informed
Elk should Village suffer adverse consequences from
Elk’s drawing of water from Village’s lake, it would
object. Therefore, Elk did not demonstrate Village sat
upon and delayed enforcing its rights to establish the
required prejudice to support its laches claim under
circumstances that would render enforcement of
Village’s claim inequitable.’’
Irrevocable License?
Finally, the panel said the trial court did not err in
finding that Elk waived the affirmative defense of ir-
revocable license because it failed to plead it in a new
matter.
‘‘Having reviewed the briefs and record, we conclude
that the trial court erred in granting summary judgment
to Village on Elk’s claim that it is an upper riparian
owner with the right of reasonable use of water from
Village Lake for snowmaking,’’ the panel said. ‘‘The trial
court correctly granted summary judgment on Elk’s
remaining claims of prescriptive easement, laches, and
irrevocable license.’’
The reversed portions of the trial court’s ruling were
remanded for further proceedings.
Panel, Counsel
The opinion was written by Judge Victor P. Stabile.
The other panel members were President Judge Susan
Peikes Gantman and Judge Christine L. Donohue.
Village is represented by David C. Franceski and Karl
S. Myers of Stradley, Ronon, Stevens Young in
Philadelphia. Elk is represented by Paul K. Leary Jr.
of Cozen O’Connor in Philadelphia. I
Oklahoma City Rural Water Turf
Dispute Set For Trial Nov. 4
In Federal Court
OKLAHOMA CITY — A federal trial in which an
Oklahoma rural water district seeks to stop the City
of Guthrie from supplying water to residents in its
claimed territory is scheduled for trial on Nov. 4
(Rural Water, Sewer and Solid Waste Management
District No. 1, Logan County, Oklahoma v. City of
Guthrie, et al., No. 05-786, W.D. Okla.).
In 2005, Rural Water, Sewer and Solid Waste Manage-
ment District No. 1, Logan County (Logan 1) sued
Guthrie, the U.S. Department of Agriculture and
Community Program Loan Trust 1987 in the U.S.
District Court for the Western District of Oklahoma.
Logan 1 complains that Guthrie is providing water
service to customers in an area outside city limits and
in Logan 1’s territory.
24

Logan 1 sues under Title 7 U.S. Code Section 1926(b),
saying that as part of its indebtedness to the federal
government, it should be allowed to serve its service
area free of competition. It says Guthrie and the
Guthrie Public Works Department are violating
Logan 1’s rights.
Logan 1 seeks to enjoin the Guthrie defendants from
providing water service to the disputed area, to forfeit
certain of its water lines to Logan 1 and to pay monetary
damages for lost water sales.
Can’t Serve Customers Anyway
The Guthrie defendants argue that the disputed area
is well outside of Logan 1’s service area and that it did
not have the facilities or funds to service the customers
at a reasonable rate. They say Logan 1 has not shown
that it made its water service available to customers in
the disputed area.
In addition, the Guthrie defendants say Logan 1 has
often been unable to provide adequate water service
to its existing customers.
Judge Vicki Miles-LaGrange will preside.
Counsel
Logan 1 is represented by Steven M. Harris and
Michel D. Davis of Doyle, Harris, Davis Haughey
in Tulsa, Okla.
The Guthrie defendants are represented by James
C. Milton and Bryan J. Nowlin of Hall, Estill, Hard-
wick, Gable, Golden Nelson in Tulsa. I
Old Water-For-Power
Pact Still Valid,
New York Justice Rules
ALBANY, N.Y. — A 115-year-old agreement to con-
vey water rights for a hydroelectric plant in exchange for
cash and free electricity remains valid, a New York state
court justice ruled Oct. 1 (Niagara Mohawk Power Cor-
poration, et al. v. Allied Healthcare Products, Inc., et al.,
No. 6516-09, N.Y. Sup., Albany Co.; 2014 N.Y. Misc.
LEXIS 4338).
In 1899, Anna and Charles Frisbee conveyed all their
water rights and privileges on the Kinderhook Creek
to Colonial Trust Co. The rights were acquired in
connection with the construction of a hydroelectric
generation facility to supply the Albany Hudson
Railroad Co.
The Frisbees also conveyed up to 4 acres of land to the
railroad for the erection of powerhouses and storage
yards.
Water, Electricity Bargain
In return, the Frisbees received a substantial mone-
tary consideration and a promise that they shall ‘‘at
all times be furnished free of cost all the power neces-
sary to running the mills now located on their lands
and premises adjacent to said creed as the same are
now operated.’’ The electricity was to be supplied
directly from the water in the creek or from the
power station.
The power agreement was affirmed in a 1903 settle-
ment and was memorialized in a deed.
The Stuyvesant Falls Hydroelectric Plant was built, and
ownership eventually transferred to the Niagara Mohawk
Power Corp. The plant was taken out of service in
1993; in 1999, it was sold to Erie Boulevard Hydro-
power LLP, with Niagara retaining the 4-acre parcel
used to distribute electricity to customers.
Ownership of the hydro plant changed again, and in
2008 it was purchased by Albany Engineering Corp.
The plant was returned to service in 2012.
Threat To Discontinue
The Frisbee Mill was first sold in 1939 and later made
hospital gases. Eventually, the former Frisbee property
was acquired by Allied Healthcare Products Inc.
(AHP), which operated a chemical plant on the site.
In 2009, Niagara Mohawk, now doing business as
National Grid, threatened to stop supplying power
under the covenant and filed a complaint in the Albany
County Supreme Court, seeking a declaration that the
power covenant was not valid or enforceable. The court
temporarily enjoined Niagara Mohawk from changing
the covenant, and both sides moved for summary
judgment.
25

Justice Richard M. Platkin said that the 1903 settle-
ment and the deed, taken together, provide proof of
intent by the parties that Niagara’s predecessor supply
Frisbee’s predecessors with free electricity. He said that
is so even though the word ‘‘successors’’ does not appear
in any documents.
‘Touch And Concern’
The justice also said the affirmative covenant satisfied
the requirement that it ‘‘touch and concern’’ the rele-
vant property interest to a substantial degree to be
enforceable at law. Justice Platkin said the power cove-
nant ‘‘has been and remains closely tied to the owner-
ship and use of AHP’s land.’’
In addition, the justice said the riparian rights allow
electricity to be generated by the creek’s water flow
and the easement allows large penstocks to traverse a
long swatch of the AHP land to deliver water to the
power station. Although the 4 acres do not generate
power, the justice said the land has played a supporting
role in the hydro plant operation and the performance
of the power covenant.
The justice rejected Niagara Mohawk’s argument that
AHP has alternative sources of electricity that didn’t
exist at the time of the power covenant. He also rejected
its argument that electricity is no longer directly sup-
plied to the AHP plant.
Covenant Unchanged
Justice Platkin said that intervening changes are in-
sufficient to sever ‘‘this longstanding and continuing
relationship.’’
‘‘AHP’s ability to purchase electricity does not render a
supply of free electricity unnecessary,’’ the justice wrote.
‘‘Nor does it sever the strong connection between
the Power Covenant and the ownership and use of
AHP’s land.’’
Although the power covenant has no expiration,
Justice Platkin said that does not render it invalid or
unenforceable.
In addition, the justice said the idling of the AHP
facility from 2004 to 2008 is not proof of an intention
to permanently abandon the power covenant or man-
ufacturing operations.
No Federal Preemption
Finally, the justice said that the power covenant is not
preempted by federal regulation of the power industry.
He said the covenant is not a contract for the sale and
delivery of power, but instead is an affirmative covenant
of power rights.
Allied Healthcare Products submitted detailed proof
demonstrating privity and was unchallenged.
Niagara Mohawk is represented by Stuart F. Klein of
Bond, Schoeneck King in Albany. Allied Healthcare
is represented by Robert T. Schofield, Alan J. Goldberg
and Vitaliy Volpov of Whiteman, Osterman Hanna
in Albany.
Albany Engineering is represented by Matthew C.
Hug of Troy, N.Y. I
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