Consejo De Desarrollo Economico, Mexicali v. U.S.
| Decision Date | 06 April 2007 |
| Docket Number | No. 06-16664.,No. 06-16345.,No. 06-16618.,06-16345.,06-16618.,06-16664. |
| Parties | CONSEJO DE DESARROLLO ECONOMICO DE MEXICALI, A.C.; Citizens United for Resources and the Environment, Plaintiffs-Appellants, and Desert Citizens Against Pollution, Plaintiff, State of California; Band of Mission Indians, Intervenors, v. UNITED STATES of America; Dirk Kempthorne, Secretary of the Department of the Interior; Robert W. Johnson, Commissioner, Bureau of Reclamation; United States of America, Defendants-Appellees, Imperial Irrigation District; San Diego County Water Authority; Central Arizona Water Conservation District; State of Nevada; Southern Nevada Water Authority; State of Arizona; Metropolitan Water District of Southern California and the Western Urban Water Coalition, Defendant-Intervenors-Appellees, v. City of Calexico, Plaintiff-intervenor. Consejo de Desarrollo Economico de Mexicali, A.C.; Citizens United for Resources and the Environment, Plaintiffs, State of California; Band of Mission Indians, Intervenors, and Desert Citizens Against Pollution, Plaintiff-Appellant, v. United States of America; Dirk Kempthorne, Secretary of the Department of the Interior; Robert W. Johnson, Commissioner, Bureau of Reclamation; United States of America; Dirk Kempthorne, Secretary; William E. Rinne, Acting Commissioner, Defendants-Appellees, State of Arizona; Metropolitan Water District of Southern California and the Western Urban Water Coalition; Colorado River Commission of Nevada, Defendant-Intervenors-Appellees, and Imperial Irrigation District; San Diego County Water Authority; Central Arizona Water Conservation District; State of Nevada; Southern Nevada Water Authority; Colorado River Commission of Nevada, Defendant-Intervenors, v. City of Calexico, Plaintiff-intervenor. Consejo de Desarrollo Economico de Mexicali, A.C.; Citizens United for Resources and the Environment; Desert Citizens Against Pollution, Plaintiffs, State of California; Band of Mission Indians, Intervenors, v. United States of America; Dirk Kempthorne, Secretary of the Department of the Interior; Robert W. Johnson, Commissioner, Bureau of Reclamation; United States of America; Dirk Kempthorne, Secretary; William E. Rinne, Acting Commissioner, Defendants-Appellees, and Imperial Irrigation District; San Diego County Water Authority; Central Arizona Water Conservation District; State of Nevada; Southern Nevada Water Authority; State of Arizona; Metropolitan Water District of Southern California and the Western Urban Water Coalition; Colorado River Commission of Nevada; Colorado River Commission of Nevada, Defendant-Intervenors, v. City of Calexico, Plaintiff-intervenor-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William Jenkins, Clifford T. Lee, Office of the California Attorney General, San Francisco, CA, for Intervenor State of California.
Mary Hackenbracht, David A. Hombeck, Reno, NE, Joseph R. Membrino, Hall, Estill, Hardwick, Gable, Golden & Nelson, Washington, DC, for Intervenor La Jolla, Rincon, San Pasqual, Pauma, and Pala Bands of Mission Indians.
Sheldon H. Sloan, Los Angeles, CA, for Amicus Curiae Government of Mexico.
Robert Vera Avar, The State of Baja California, Mexico, for Amicus Curiae State of Baja California, Mexico.
Kara Gillon, Defenders of Wildlife, Albuquerque, NM, for Amicus Curiae Defenders of Wildlife.
Appeals from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-05-00870-PMP.
Before NOONAN, TASHIMA, and THOMAS, Circuit Judges.
This case involves a dispute over a Bureau of Reclamation project to build a concrete-lined canal to replace an unlined portion of the All-American Canal. The district court denied declaratory and injunctive relief. A motions panel of our Court granted a temporary injunction halting work on the project pending appeal. After the initial oral argument and based on intervening legislation, the United States filed a motion to vacate the injunction and to remand the action to the district court with instructions that several of the claims be dismissed as moot. We held a second oral argument to consider the motion.
After consideration of the extensive briefing and arguments of the parties, we conclude that the environmental and other statutory claims are moot and that the district court lacked subject matter jurisdiction over the remaining claims. We vacate the injunction of the project pending appeal and remand the case to the district court with instructions to dismiss it.
Colorado Poet Laureate Thomas H. Ferril described the West by saying: "Here is the land where life is written in water." The legacy of the West is one of continual, and often bitter, controversies about water rights, both above and below the surface. In the West, "whiskey is for drinking; water is for fighting over," Mark Twain is said to have observed. Our water dispute brings us to the Mexican-California border and the plans of the United States Bureau of Reclamation to prevent the All-American Canal from seeping water—seepage upon which thousands of Mexicans rely.
The All-American Canal is one of the world's largest irrigation canals, carrying water from the Colorado River to the Imperial Valley in California. The Imperial Valley lies between the Mexican boundary and the Salton Sea, bounded on the east by sandhills and on the west by the foothills of the San Diego Mountains. The canal is the valley's only source of water.
The All-American canal replaced the Alamo canal, which diverted water a short distance north of the Mexican border, but transported water mostly through Mexico before it re-crossed the border into the Imperial Valley. In the 1920's, considerable sentiment arose to have a canal that was entirely contained within the boundaries of the United States—perhaps in furtherance of the notion of character Noah Cross (slightly paraphrased), that "either you bring the water to California, or you bring California to the water."2 In any event, the concept of an "all-American" canal was born.
The All-American Canal System was authorized under the Boulder Canyon Project Act of December 21, 1928, 45 Stat. 1057, codified at 43 U.S.C. § 617. Construction of the canal by the United States Bureau of Reclamation commenced in 1934 following the construction of the Hoover Dam, with the project reaching completion in 1942. The design was aimed to have the water transported entirely within the United States. The new canal, as designed, flowed only in the United States. However, water often refuses to be confined by our artificial restraints. Thus, although the canal's surface water remained in the United States, its seepage did not—recharging the Mexicali Aquifer and providing a reservoir of groundwater to the Mexicali Valley on the other side of the border. The Mexicali Aquifer underlies both the Imperial Valley in California and the Mexicali Valley in Mexico. The complaint alleges that the roughly 1.3 million people who live in the Mexicali Valley depend on the groundwater from the aquifer, which irrigates thousands of acres of farmland.
Prior to 1901, the aquifer was recharged by the Colorado and Alamo rivers. Because it was unlined, the construction of the Alamo Canal did not impact the recharge of the aquifer. Congress considered the idea of lining the All-American Canal, but ultimately decided on an earthen and porous design that did allow seven percent of the volume to seep into northern Mexico.
Seepage from the All-American Canal first caused widespread flooding in the...
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