Escondido Mut. Water Co. v. F.E.R.C.
| Decision Date | 17 March 1983 |
| Docket Number | Nos. 79-7625,80-7012 and 80-7110,s. 79-7625 |
| Citation | 692 F.2d 1223 |
| Parties | ESCONDIDO MUTUAL WATER COMPANY, City of Escondido, and Vista Irrigation District, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, San Pasqual Band of Mission Indians, Secretary of Interior, etc., et al., Intervenors. SAN PASQUAL, LA JOLLA, RINCON, PAUMA AND PALA BANDS OF MISSION INDIANS, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Escondido Mutual Water Company, City of Escondido and Vista Irrigation District, Intervenors. The SECRETARY OF the INTERIOR, acting in his capacity as trustee for the Rincon, La Jolla and San Pasqual Bands of Mission Indians, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Escondido Mutual Water Company, City of Escondido and Vista Irrigation District, Intervenors. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Paul D. Engstrand, Leroy A. Wright, San Diego, Cal., James C. Kilbourne, Washington, D.C., Robert S. Pelcyger, Boulder, Colo., argued, for petitioners; Jennings, Engstrand & Henrikson, Glenn, Wright, Jacobs & Schell, San Diego, Cal., C. Emerson Duncan, II, Duncan, Allen & Mitchell, Washington, D.C., on brief, for Escondido; Raymond N. Zagone, Dirk D. Snel, U.S. Dept. of Justice, Daniel M. Rosenfelt, Dept. of the Interior, Washington, D.C., on brief, for Interior; Fredericks & Pelcyger, Boulder, Colo., on brief, for San Pasqual, etc.
Joseph S. Davies, Jr., Joshua Rokach, FERC, Washington, D.C., argued, for respondent; John A. Cameron, Acting Asst. Sol., Kristina Nygaard, FERC, Washington, D.C., on brief.
Petition for Review of Orders of the Federal Energy Regulatory Commission.
Before ANDERSON, FERGUSON and NELSON, Circuit Judges.
This is a petition for review of decisions of the Federal Energy Regulatory Commission ("Commission") 1 in consolidated administrative The decision of the Commission to issue a new license to Mutual, Escondido, and Vista is reflected in its unreported Opinion No. 36, "Opinion and Order Issuing New Licenses, Determining Annual Charges for Past Periods, Prohibiting Certain Activities, Conditionally Providing Interim Operating Procedures, and Terminating Complaint and Investigatory Proceedings," issued February 26, 1979, and No. 36-A, "Opinion and Order on Rehearing Modifying Licenses and Stay, Determining Net Investment and Severance Damages, and Otherwise Denying Rehearing," issued November 26, 1979. Judicial review of these orders is sought by the Secretary of the Interior ("Interior"), Mutual, Vista, Escondido, and the San Pasqual, La Jolla, Rincon, Pauma, and Pala Bands of Mission Indians ("Bands").
proceedings involving licensed Project No. 176 in northern San Diego County, California. The project was originally licensed for 50 years in 1924 to the Escondido Mutual Water Company ("Mutual") pursuant to Part 1 of the Federal Power Act ("FPA"), 16 U.S.C. Sec. 791a et seq. (1976). Since 1974, the project has been operated under annual licenses issued pursuant to section 15(a) of the FPA, 16 U.S.C. Sec. 808(a) (1976). The proceedings now under review culminated in the issuance of a new 30-year license to Mutual, the City of Escondido ("Escondido"), and the Vista Irrigation District ("Vista").
For the reasons given below, we reverse the Commission's decision and remand for further proceedings.
The San Luis Rey River originates near Palomar Mountain in northern San Diego County, California. In its natural condition, it flows through the La Jolla, Rincon and Pala Indian Reservations, and then through the City of Oceanside on its way to the Pacific Ocean. Three other Indian reservations are also within the watershed of the San Luis Rey River--the Pauma, Yuima, 2 and approximately three-quarters of the San Pasqual. A map of the area and of Project No. 176, Appendix A of the Commission's Opinion No. 36, appears as Appendix I to this opinion.
The San Luis Rey River watershed is now and has historically been the homeland of the La Jolla, Rincon, San Pasqual, Pauma, Pala, and Yuima Bands of Mission Indians. These Indians were the object of Congress's special attention when it enacted, in 1891, the Mission Indian Relief Act ("MIRA"), 26 Stat. 712. Some of the concerns that led to the enactment of MIRA were expressed by the preceding Congress:
The history of the Mission Indians for a century may be written in four words: conversion, civilization, neglect, outrage. The conversion and civilization were the work of the mission fathers previous to our acquisition of California; the neglect and outrage have been mainly our own. Justice and humanity alike demand the immediate action of Government to preserve for their occupation the fragments of land not already taken from them.
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Much of the land is valueless without irrigation, and the Indians are being deprived of their water rights wherever and whenever the interests of the whites demand the appropriation of such rights.
S.Rep. No. 74, 50th Cong., 1st Sess. 1, 3 (1888).
Pursuant to the provisions of MIRA, the La Jolla, Rincon, San Pasqual and Pala Reservations were withdrawn from settlement and entry by order of President Harrison on December 29, 1891. Trust patents were issued on September 13, 1892, for the La Jolla and Rincon Reservations; on February 10, 1893, for the Pala Reservation; and on July 1, 1910, for the San Pasqual Reservation. The Pauma and Yuima Reservations were also established in accordance with MIRA through the acquisition of quitclaim deeds by the United States in Since 1895, the waters of the San Luis Rey River have been diverted out of the watershed to the community in and around the City of Escondido. The point of diversion has been located in the middle of the La Jolla Indian Reservation above all of the other reservations. The conveyance facility, known as the Escondido Canal, traverses parts of the La Jolla, Rincon and San Pasqual Reservations, as well as some private lands and some federal land administered by the Bureau of Land Management. Its terminus is a storage facility known as Lake Wohlford.
1891 and 1893. MIRA originally called for the land to be held in trust for 25 years, followed by the issuance of fee patents, but the periods of trust were later extended indefinitely.
Various agreements, dating back as far as 1894, among Mutual's predecessor, Interior, and the Bands purport to grant rights-of-way for the Escondido Canal across the various reservation lands in return for a guarantee to supply certain amounts of water to the Bands. The validity of those agreements is the subject of separate, currently pending litigation between Mutual and the Bands. Rincon Band of Mission Indians, et al. v. Escondido Mutual Water Co., et al., S.D. Cal. Nos. 69-217-S, 72-276-S, 72-271-S. In a partial summary judgment in that action, certain portions of those agreements were declared void. Id. (January 10, 1980).
The diversion and conveyance facilities, including the diversion dam on the La Jolla Reservation, the Escondido Canal, and the various appurtenant roads, pack trails, power lines, telephone lines and the like, and two hydroelectric generating stations have been licensed to Mutual under Project No. 176 since 1924.
In 1922, Vista's predecessor constructed Henshaw Dam on the San Luis Rey River, approximately nine miles above Mutual's diversion dam. Pursuant to a complex contractual relationship, Vista and Mutual have shared the output of Lake Henshaw and the use of the Escondido Canal. Since 1925, approximately one-half of the water transported through the Escondido Canal and stored in Lake Wohlford has been delivered to the community in and around the City of Vista and the other half has been diverted to Escondido. The Henshaw facilities and water rights were not included in the original license for Project No. 176. Prior to 1979, Vista and its predecessors were not licensed by the Commission or mentioned in the license.
Since 1925, Escondido and Vista have captured, impounded and diverted out of the watershed to Lake Wohlford approximately 90% of the flow of the San Luis Rey River at the diversion dam on the La Jolla Reservation. This amounts to an average of approximately 14,600 acre-feet per year. Natural flow accounts for only 2,705 acre-feet of the average annual diversion, the remainder consisting of water stored in Lake Henshaw, and water pumped from the groundwater basin above Lake Henshaw. Approximately 10% of the diverted flow, an average of 1,500 acre-feet per year, has been delivered to the Rincon Reservation pursuant to a 1914 contract entered into by Interior on behalf of the Rincon Band. No project water has been delivered to any of the other reservations. An average of approximately 2,200 acre-feet per year has flowed past the diversion dam, for one of two reasons: either the flows in the river have exceeded the capacity of the diversion facilities, or the facilities have been shut down for periodic maintenance and repair.
The Bands and Interior contend that the diversion of the San Luis Rey River water through Project No. 176 has substantially diminished recharge of the downstream Pauma, and Pala groundwater basins which underlie the Rincon, Pauma and Pala Reservations, and that as a result wells have gone dry and crops have been destroyed. The Bands and Interior also assert that "the future development of these reservations is dependent upon the utilization of these groundwater resources." 3
Between 1894 and 1957, the Bands received no compensation for the use of their lands or for the diversion of the river. Since 1957, the San Pasqual Band has received $25 per year for the use of 3.08 acres of tribal lands licensed in that year.
On July 25, 1969, the Rincon and La Jolla Bands sued Mutual, Escondido, Interior, and the...
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