400 F.Supp. 610 (N.D.Cal. 1975), C-71-500, Sierra Club v. Morton

Docket NºC-71-500-CBR.
Citation400 F.Supp. 610
Party NameSIERRA CLUB, a non-profit California Corporation, et al., Plaintiffs, v. Rogers C. B. MORTON, as Secretary of the Interior of the United States, et al., Defendants.
Case DateJuly 28, 1975
CourtUnited States District Courts, 9th Circuit, Northern District of California

Page 610

400 F.Supp. 610 (N.D.Cal. 1975)

SIERRA CLUB, a non-profit California Corporation, et al., Plaintiffs,

v.

Rogers C. B. MORTON, as Secretary of the Interior of the United States, et al., Defendants.

No. C-71-500-CBR.

United States District Court, N.D. California.

July 28, 1975

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MEMORANDUM OF OPINION

John B. Clark, Pettit, Evers & Martin, San Francisco, Cal., for plaintiffs Sierra Club, Friends of the Earth and Hank Schramm.

Michael R. Sherwood, San Francisco, Cal., Sierra Club Legal Defense Fund, for plaintiff Sierra Club.

Gary J. Near, San Francisco, Cal., for plaintiffs Friends of the Earth and William Dixon.

James L. Browning, Jr., U.S. Atty., Francis Boone, Richard J. Dauber, Asst. U.S. Attys., San Francisco, Cal., for federal defendants.

Evelle J. Younger, Atty. Gen., Carl Boronkay, R. H. Connett, Bertram G. Buzzini, Deputy Attys. Gen., Sacramento, Cal., for state defendants.

Victor E. Gleason, Los Angeles, Cal., for intervening defendant Metropolitan Water District of Southern California.

James G. McCain, Corcoran, Cal., for intervening defendant Tulare Lake Basin Storage District.

Albert Thomas Henley, San Jose, Cal., and Daniel F. Gallery, Sacramento, Cal., for intervening defendant Santa Clara Water District.

RENFREW, District Judge.

In 1971 two environmental groups and two individuals brought this action to contest the allegedly unlawful construction and operation of three major facilities of the California Water Project. The parties agreed to bifurcate the trial of the action into a liability phase and a relief phase. The liability phase was tried to the Court between June 10, 1974, and June 21, 1974. Subsequently, on July 26, 1974, the Court heard oral argument and at the conclusion of that argument informed the parties of its views as are more fully set forth herein.

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The California Water Project has been constructed in part as a response to California's water problem. The essence of that problem is the need to redistribute the state's plentiful water supply from water-abundant areas to water-deficient areas. The water-rich areas lie in the North and West Central portion of the state. Water from these areas flows through a system of rivers and channels to the Sacramento-San Joaquin Delta ('Delta') and finally through the San Francisco Bay to the Pacific Ocean. One proposed solution to the state's water problem is transporting the excess water, which would normally flow into the ocean, to the arid or semi-arid areas of the state. A second and interrelated problem arises because the excess water is present in and flows out of the water-rich areas only during certain times of the year. Because the demand for water consumption for human use is relatively constant throughout the year and the agricultural demand varies during different times of the year, water which accumulates in the water-rich areas during the excess water seasons must be stored for use during the year if these demands are to be met.

A brief description of the geographical area underlying the subject matter of this suit will aid in understanding the facts of this case. The Delta is a roughly triangular-shaped region which runs southwest from Sacramento west of the Sacramento River to Antioch, which forms one corner of the triangle. It then runs southeast from Antioch to a point approximately 10 1/2 miles southeast of Tracy, which forms a second corner. Finally, it runs north from that point through Stockton to Sacramento, completing the triangle. Clifton Court Forebay, Delta Pumping Plant, and Tracy Pumping Plant are located on the edge of the Delta approximately half-way between Antioch and Tracy. The proposed route of the Peripheral Canal runs from the intake structure in the north Delta, south through the east Delta, and finally turns to the southwest, stopping between the Tracy Pumping Plant and the Clifton Court Forebay. In the southern Delta the San Joaquin River and its tributaries flow basically in a northwesterly direction while in the northern Delta the Sacramento River and its tributaries flow in southwesterly direction. 1

The California Water Project consists of both state and federal facilities. The federal component of the project is administered by the United States Bureau of Reclamation and is designated as the Central Valley Project. The state component of the project is administered by the Department of Water Resources, a department within the Resources Agency of the State of California, and is designated as the State Water Project.

The Central Valley Project, the federal project, consists of a series of reservoirs, pumping plants, canals, and other facilities designed to control the flow of water in the Sacramento River, San Joaquin River, and certain of their tributaries, generate hydroelectric power, provide flood control, and provide water for irrigation and other uses in the Central Valley of California. One of the principal facilities of the Central Valley Project is the Tracy Pumping Plant, located on an inlet channel of Old River in the Delta. The Tracy Pumping Plant diverts water from the Delta by pumping it into the Delta-Mendota Canal, a 115-mile canal which leads to the Mendota Pool in the Central Valley.

The State Water Project, created by the Burns-Porter Act of 1959, was to consist of a system of dams, canals, pumping plants, and other facilities designed to transfer water across the Delta, provide for water conservation and flood and salinity control in the Delta, provide for the generation of power, and provide transfer water from points at or near the Delta to the San Francisco Bay Area, the San Joaquin Valley, the Central Coast, and Southern California. The Burns-Porter Act was submitted to

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and approved by California voters on November 8, 1960.

Substantially all of the water required annually by the State Water Project is to be obtained initially from the Sacramento and San Joaquin Rivers and their tributaries. Among the facilities constructed for this purpose are the Delta Pumping Plant and the Clifton Court Forebay which are located on the edge of the Delta. A majority of the water that is transported from Northern California to Southern and Central California travels through the Delta Pumping Plant and the California Aqueduct.

The State of California through its Department of Water Resources has entered into contracts providing that at some point in the future it deliver 4.23 million acre-feet of water annually by means of the State Water Project. The primary purchasers of water are the Kern County Water Agency, which has agreed to purchase 1,153,400 acre-feet annually, and the Metropolitan Water District of Southern California, which has agreed to purchase 2,011,500 acrefeet annually. It is expected that over 95% Of the water which the State is contractually obligated to deliver to Central and Southern California will be transmitted through the Delta Pumping Plant.

Many controversies have been associated with the continuing development of this massive water project. This case, however, concerns the extent to which the decisions and actions of state and federal defendants must take into account navigational, environmental, fish, and wildlife considerations. The Delta, consisting of approximately 700 miles of meandering waterways, some of which are navigable, is used for both commercial shipping and recreational boating. Water skiing and houseboating are common activities in this region and there are many marinas within its confines. A significant amount of California warm water fishing, anadromous sport fishing, and approximately 80% Of the commercial salmon fishing is dependent upon the environment in the Delta. Moreover, this region and its adjoining marshlands and wetlands are on the Pacific Flyway, an important wintering area and major and customary natural habitat for migratory waterfowl.

Plaintiffs in this case are The Sierra Club, Friends of the Earth, Hank Schramm, and William Dixon. The Sierra Club is a nonprofit California corporation having in excess of 130,000 members of whom more than 40,000 live in the San Francisco Bay and the Sacramento-San Joaquin Delta areas. Included in the membership of the Sierra Club are many persons who use the waters referred to in the complaint for recreational purposes, including, but not limited to, boating, fishing and swimming. The stated purposes of the Sierra Club include the preservation and conservation of the natural resources, fish, and wildlife of the United States, including its rivers, bays, wetlands, deltas, and estuarine areas.

Friends of the Earth is a nonprofit New York corporation which has its principal place of business in San Francisco. Its stated purpose include the preservation, restoration, and rational use of the environment.

Hank Schramm is and has been engaged for the past 20 years in the business of commercial fishing and the operation of sports fishing party boats in the San Francisco Bay and the Pacific Ocean. Schramm has a economic interest in this controversy since he depends for his livelihood on the maintenance, preservation, and conservation of sports and commercial fisheries in the San Francisco Bay and the adjoining waters of the Pacific Ocean.

William Dixon owns substantial property in the Delta, including a partnership interest in the St. Germain Duck Club on Simmons Island, and consequently has an economic interest in the maintenance, preservation, and conservation of adequate non-polluted supplies of water in the Delta and San Francisco Bay regions.

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Defendants are state and federal officials who administer the various agencies responsible for...

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33 practice notes
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • 17 Septiembre 1979
    ...in Riggle v. State of California, 577 F.2d 579, 582-583 (C.A. 9, 1978), 54 and in two lower court decisions, Sierra Club v. Morton, 400 F.Supp. 610, 622-623 (N.D.Cal.1975); Sierra Club v. Leslie Salt Co., 354 F.Supp. 1099, 1104-05 (N.D.Cal.1972), have recognized private causes of action und......
  • 678 F.Supp. 790 (E.D.Mo. 1988), 87-1397C 3, Missouri Coalition for Environment v. Corps of Engineers of United States Army
    • United States
    • Federal Cases United States District Courts 8th Circuit United States District Court (Eastern District of Missouri)
    • 8 Enero 1988
    ...501 F.Supp. 742, 766-67 (N.D.Miss.1980); Trinity County v. Andrus, 438 F.Supp. 1368, 1383 (E.D.Cal.1977); Sierra Club v. Morton, 400 F.Supp. 610, 640 (N.D.Cal.1975), aff'd in part, rev'd in part on other grounds sub nom. Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979). QQ. Moreover, an ......
  • 501 F.Supp. 742 (N.D.Miss. 1980), EC 77-53, Environmental Defense Fund, Inc. v. Alexander
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Northern District of Mississippi
    • 1 Octubre 1980
    ...325 F.Supp. 749, 754 (E.D.Ark.1971), aff'd sub nom. EDF v. Froehlke, 473 F.2d 346, 356 (8 Cir. 1972); Page 767 Sierra Club v. Morton, 400 F.Supp. 610, 640 (N.D.Cal.1975), aff'd in part, rev'd in part on other grounds, sub nom. Sierra Club v. Andrus, 610 F.2d 581 (9 Cir. 1979); County of Tri......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 26 Junio 1978
    ...in this Circuit under the Rivers and Harbors Appropriations Act, if not also under the Bridge Act of 1906. See Sierra Club v. Morton, 400 F.Supp. 610, 622 (N.D.Cal.1975); Sierra Club v. Leslie Salt Co., 354 F.Supp. 1099, 1104-1105 (N.D.Cal.1972). See also Cort v. Ash, 422 U.S. 66, 79 n.11, ......
  • Request a trial to view additional results
30 cases
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • 17 Septiembre 1979
    ...in Riggle v. State of California, 577 F.2d 579, 582-583 (C.A. 9, 1978), 54 and in two lower court decisions, Sierra Club v. Morton, 400 F.Supp. 610, 622-623 (N.D.Cal.1975); Sierra Club v. Leslie Salt Co., 354 F.Supp. 1099, 1104-05 (N.D.Cal.1972), have recognized private causes of action und......
  • 678 F.Supp. 790 (E.D.Mo. 1988), 87-1397C 3, Missouri Coalition for Environment v. Corps of Engineers of United States Army
    • United States
    • Federal Cases United States District Courts 8th Circuit United States District Court (Eastern District of Missouri)
    • 8 Enero 1988
    ...501 F.Supp. 742, 766-67 (N.D.Miss.1980); Trinity County v. Andrus, 438 F.Supp. 1368, 1383 (E.D.Cal.1977); Sierra Club v. Morton, 400 F.Supp. 610, 640 (N.D.Cal.1975), aff'd in part, rev'd in part on other grounds sub nom. Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979). QQ. Moreover, an ......
  • 501 F.Supp. 742 (N.D.Miss. 1980), EC 77-53, Environmental Defense Fund, Inc. v. Alexander
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Northern District of Mississippi
    • 1 Octubre 1980
    ...325 F.Supp. 749, 754 (E.D.Ark.1971), aff'd sub nom. EDF v. Froehlke, 473 F.2d 346, 356 (8 Cir. 1972); Page 767 Sierra Club v. Morton, 400 F.Supp. 610, 640 (N.D.Cal.1975), aff'd in part, rev'd in part on other grounds, sub nom. Sierra Club v. Andrus, 610 F.2d 581 (9 Cir. 1979); County of Tri......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 26 Junio 1978
    ...in this Circuit under the Rivers and Harbors Appropriations Act, if not also under the Bridge Act of 1906. See Sierra Club v. Morton, 400 F.Supp. 610, 622 (N.D.Cal.1975); Sierra Club v. Leslie Salt Co., 354 F.Supp. 1099, 1104-1105 (N.D.Cal.1972). See also Cort v. Ash, 422 U.S. 66, 79 n.11, ......
  • Request a trial to view additional results
3 books & journal articles
  • Fracking-caused earthquakes: how alleged threats could trigger the Corps of Engineers' section 10 jurisdiction.
    • United States
    • Environmental Law Vol. 45 Nbr. 1, January - January 2015
    • 1 Enero 2015
    ...Id. at 1309. (85) Id. (86) See id. (emphasis added). (87) 174 U.S. 690(1899). (88) Id. at 708 (emphasis added). (89) Id. at 709. (90) 400 F. Supp. 610 (N.D. Cal. 1975), affd in part, rev'd in part sub nom. Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979), vacated sub nom. Sierra Club v. ......
  • Addressing barriers to watershed protection.
    • United States
    • Environmental Law Vol. 25 Nbr. 4, September 1995
    • 22 Septiembre 1995
    ...the Army, Corps of Eng'rs, 526 F. Supp. 660, 677 (W.D. Mo. 1980), aff'd, 672 F.2d 1297 (8th Cir. 1982); see also Sierra Club v. Morton, 400 F. Supp. 610, 640 (N.D. Cal. 1975) (holding no private right of action existed under FWCA). (464) Section 102(2)(C) of the law requires the preparation......
  • Environmental review of western water project operations: where NEPA has not applied, will it now protect farmers from fish?
    • United States
    • UCLA Journal of Environmental Law & Policy Vol. 29 Nbr. 2, September 2011
    • 22 Septiembre 2011
    ...Id. at 1388 (quoting 40 C.F.R. [section] 1500.13 (1976)). (132.) Id. at 1388-89. (133.) Id. at 1389 (citing Sierra Club v. Morton, 400 F. Supp. 610, 645 (N.D. Cal. 1975) and Morris v. Tenn. Valley Auth., 345 F. Supp. 321, 324 (N.D. Ala. 1972)). In Morton, the court rejected the application ......