County of Inyo v. Yorty

• Decision Date: 05 June 1973
• Citation: 32 Cal.App.3d 795,108 Cal.Rptr. 377
• Court: California Court of Appeals Court of Appeals
• Parties: , 5 ERC 1431, 3 Envtl. L. Rep. 20,513 COUNTY OF INYO, Petitioner, v. Sam YORTY et al., Respondents. Civ. 13886.

Page 377

108 Cal.Rptr. 377

32 Cal.App.3d 795, 5 ERC 1431, 3 Envtl. L. Rep. 20,513

COUNTY OF INYO, Petitioner, v. Sam YORTY et al., Respondents.

Civ. 13886.

Court of Appeal, Third District, California.

June 5, 1973.

As Modified June 29, 1973.

[32 Cal.App.3d 797] Frank H. Fowles, Dist. Atty., Inyo County, Independence, for petitioner-appellant.

Roger Arnebergh, City Atty., Edward C. Farrell, Chief Asst. City Atty., Dept. Water and Power, Kenneth W. Downey, Asst. City Atty., Gilbert W. Lee, Deputy City Atty., Los Angeles, for respondents.

Fredric P. Sutherland, Center for Law in Public Interest, Los Angeles, for petitioner.

Ralph Winter, Richard E. Gutting, Jr., Sierra Club, Legal Defense Fund, San Francisco, for petitioner.

RICHARDSON, Presiding Justice.

Petitioner (hereinafter 'County') sought a writ of supersedeas which we treated as a petition for writ of mandate, and thereupon issued an alternative writ. Respondents filed appropriate reply to the petition and have also in the trial court interposed their demurrer and answer.

These proceedings follow the filing of a complaint by County in the County of Inyo against respondent City of Los Angeles, a municipal corporation, its Department of Water and Power, the president and secretary of the department and commission, its chief engineer who is also general manager, and Does 1 through 20 (all hereinafter 'City'). The complaint sought a temporary restraining order, preliminary injunction and permanent injunction to halt the extraction of subsurface waters from the Owens Valley in Inyo County until the filing by defendants of an Environmental Impact Report (hereinafter 'EIR') required by the California Environmental Quality Act of 1970 (hereinafter 'CEQA'), and a determination of the environmental effect of the continued and expanded extraction of subsurface water. A temporary restraining order was issued by the Inyo County Superior Court limiting any increase in the withdrawal of water in the affected area.

Subsequent, a motion by City for change of venue from Inyo to Sacramento County was granted. A hearing was held in Sacramento County Superior Court which resulted in denial of the application for preliminary injunction and dissolution of the temporary restraining order, from which action the present petition stems. County has also filed notice of appeal.

County generally asserts 'error by the trial court in application of the Environmental Quality Act to the respondents' activities within petitioner's county.' More specifically, County alleges: (1) The order dissolving the temporary restraining order is an appealable order but to await the formal resolution of the appeal, with its attendant delays, will render the substantial questions of law moot in that irreversible environmental damage will have resulted. (2) The trial court erred in its determination that CEQA did not apply to City's activities because of its view that such action was a continuation of a pre-existing activity of project born before the effective date of CEQA.

Narrowly stated, the issue before us is whether City is required to file an EIR with reference to its continued extraction of subsurface waters from the Owens Valley area of County.

Resolution of this issue and an evaluation of the conflicting legal and factual considerations bearing on it require a brief review of the geography of the area and of the history and character of the pertinent The Owens Valley is located in east central California along the eastern edge of the Sierra Nevada Mountains, and runs in a general north and south direction through Mono and Inyo Counties. The valley is approximately 120 miles in length and from 15 to 30 miles wide, comprising a total area exceeding 3,000 square miles, approximately the size of Belgium. The valley's elevation varies from 3,550 feet to more than 10,000 feet. It is semi-arid but receives in the late spring and early summer, from both the Sierra Nevada on the west and the Inyo and White Mountains on the east, substantial but varying flows of surface water from the melting snowfields. It lies in an area contiguous to and immediately south of Mono County recently described by the Supreme Court in the following manner: '(N)ature's bountiful gifts of majestic mountains, lakes, streams, trees and wildlife have produced in the area one of the nation's most spectacularly beautiful and comparatively unspoiled treasures.' (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 253, 104 Cal.Rptr. 761, 764, 502 P.2d 1049, 1052.) The Owens River is the principal drainage course in the basin, flowing in a parallel north-south axis along the westerly side of the Valley and into Owens Lake which has no natural outlet.

relationships between the two public entities involved.

City, faced with the necessity of importing water to serve the needs of a growing metropolitan population in the Los Angeles Basin, began the systematic acquisition of water rights and land in the Owens Valley shortly after 1900. These acquisitions were made for the purpose of acquiring control of the water supply in the area, and at the present time City owns approximately 300,000 acres in Inyo and Mono Counties, comprising roughly 97 percent of the available privately held land. Between the years 1908 and 1913 City constructed a surface aqueduct (the 'first adueduct') between the Owens Valley and City and began receiving Owens Valley water in 1913.

In 1941 City completed what is known as the 'Mono Basin Project.' This project was designed to gather the natural runoff in the Mono Basin area and to direct it by gravity flow and pumping operations through the Mono Lake watershed into the Owens River system through the Tinemaha Reservoir to the Haiwee Reservoir. The project is a complex of sources, tributaries, conduits, tunnels and storage areas extending 349 miles from Lee Vining to Los Angeles. At a relatively early date, as an auxiliary to the natural precipitation in the area, City commenced the drilling of a large number of wells to tap the subsurface pools of underground water in Owens Valley. These wells were heavily used during dry years to assure, as a supplementary source, a continuous and adequate flow through the first aqueduct. Since 1917 City has drilled more than 360 wells, of which it has pumped 190. Seven of them have been placed in operation since November 1970. Of more significance, as noted below, is the recent great acceleration of pumping operations from existing wells. Further, of the 11 wells drilled since 1963, seven were pumped for public use for the first time and a number of older wells had their capacity increased after the effective date of CEQA.

By 1963 City, prompted by the increasing water needs of a continued rapidly expanding population, had caused the preparation of a long-term report entitled 'Availability and Utilization of Inyo-Mono Water' ('Report'). The Report noted that as of 1963 there had been 21 separate water rights filings by the State of California on streams and lakes in Inyo and Mono Counties for the purpose of providing domestic and recreational uses of water. The Report further indicated the growing and competing interests in Owens Valley water among various public entities and the increasing challenge to the City's beneficial utilization of it. It noted that in 1934 City had filed on 200 cubic feet per second (cfs) of water in the Mono Basin, but the first aqueduct was not of sufficient capacity to carry all such water to City. According Historically, the first aqueduct conveyed most of the available surface runoff from Owens Valley. It was planned that the second aqueduct would be filled largely from three sources: increased surface diversion from Mono Basin, reduced irrigation of City owned lands in the affected counties and increased pumping of ground-water reservoirs in Owens Valley.

to the Report, City had proposed in 1959 the construction of a second aqueduct to carry water from Owens Valley to the City for the purpose of completing 'the development of our Inyo-Mono supply that began over fifty years ago' and to insure that City would not lose certain water rights on which it had filed primarily in the Mono Basin development.

The cost of the second aqueduct was approximately $91,000,000 of which 96 percent had been expended when the operation of the aqueduct commenced in 1970. Of the approximately $2,000,000 appropriated for construction of additional wells for increased groundwater extraction about 50 percent had been expended prior to the commencement of litigation.

Both the projection and actual utilization of groundwater extraction from Mono and Inyo Counties have steadily increased in the past 40 years. Some understanding of the measure and rapidly increasing tempo at which the groundwater reservoirs have been tapped may be gained from the fact that during 1972 four new wells were constructed in the Independent Well Field alone, having an aggregate present pumping capacity exceeding 40 cfs, and in the same field during 1971--1972 the pumping capacity of existing wells was measurably increased. It appears that using as a base the 35-year-period from 1930 to 1965 a long-term average of 10.3 cfs was extracted from the Owens Valley subsurface pools. In 1963 the estimated long-term average groundwater extraction was 89 cfs. This has increased to a present pumping capacity of 240 cfs. City envisions a proposed ultimate pumping capability of 485 cfs. This would result in an average long-term groundwater extraction of 147 cfs. This continual upward revision of pumping capacity and long-term average extraction was directed to the constant outflow of 666 cfs--the design capacity of the two aqueducts.

The parties substantially disagree on the environmental impact, if any, of this major increase. City, while accepting the possibility of moderate falls in the water table in the affected area, considers this a seasonal and cyclical effect...