Free Response to Motion - District Court of Federal Claims - federal

Case 1:04-cv-00541-CCM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) Plaintiffs, ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ___________________________________ ) STOCKTON EAST WATER DISTRICT, CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT, SAN JOAQUIN COUNTY, STOCKTON CITY, CALIFORNIA WATER SERVICE COMPANY,

No. 04-541 L Judge Christine Odell Cook Miller

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR LEAVE AND MOTION IN LIMINE REGARDING BACKGROUND PRINCIPLES OF STATE LAW Defendant United States hereby responds to and opposes Plaintiffs' Motion for Leave to File a Motion In Limine Regarding Background Principles of State Law (Doc. #140-1) ("Plaintiffs' Motion for Leave"), and the Motion In Limine attached thereto (Doc. #140-2) ("Plaintiffs' Motion"). For the reasons set forth below, Plaintiffs' efforts to preclude the Court from considering relevant state law issues should be rejected. First, Plaintiffs' Motion for Leave is premised on the erroneous assertion that background principles of California state law is a new issue that is being raised for the first time and that was not "addressed in this Court's April 10, 2006 Opinion, which sets forth the issues for trial in this case." Pls.' Mot. at 1. In fact, the Court's decision states: [D]efendant and amicus press the argument that plaintiffs' water rights were limited by background principles of state law. The court does not rule on this argument. It may be addressed at trial and in the related briefing. Stockton East Water Dist. v. United States, 70 Fed. Cl. 515, 536 n.13 (2006) (emphasis added). Accordingly, these issues are not new, there has been no waiver of defenses that are based on 1

Case 1:04-cv-00541-CCM

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state law, and the Court expressly indicated that these issues may be addressed at trial and in the related briefing. Second, Plaintiffs state that they "do not and have never disputed that the United States must comply with state law" and that they "do not challenge releases made by Defendant from New Melones required to comply with permit terms imposed on New Melones by the State [Water Resources Control] Board [("SWRCB")]." Pls.' Mot. at 2. However, Plaintiffs' list of releases that they do not challenge omits releases to meet Vernalis salinity standards after 1999, even though this continues to be a condition of the SWRCB permits for New Melones. See SWRCB Decision 1641 (as revised in accordance with Order WR 2000-02) at 160-163 (available at http://www.waterrights.ca.gov/hearings/d1600_d1649.html). Plaintiffs' list also omits releases from New Melones that are required to meet instream flows at Vernalis. Id. Accordingly, Plaintiffs do appear to be challenging some of the requirements imposed on the operation of New Melones Reservoir under state law. Third, Plaintiffs rely on National Audubon Society v. Superior Court of Alpine County, 33 Cal.3d 419 (1983), to support their contention that this Court cannot or should not "make the initial factual determination as to whether a use of water pursuant to a state issued permit is required by California law." Pls.' Mot. at 6-7. In fact, the National Audubon decision supports a nearly opposite proposition ­ that the courts (state and federal) have concurrent jurisdiction over such matters. 33 Cal.3d at 451-52. In exercising the concurrent jurisdiction, a court may refer a matter to the SWRCB for factual determination, but it is not required to do so. See id. at 451. Simply stated, although the SWRCB has authority to enforce the public trust doctrine and other

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aspects of state law, so do the courts, including this Court.1/ Plaintiffs have chosen to litigate their claims in this Court and cannot now complain that certain aspects of their claim must be decided in the first instance by the SWRCB. CONCLUSION For the reasons set forth above, Defendant respectfully requests that the Court deny Plaintiffs' Motion for Leave (Doc. #140-1) or, if that Motion is granted, deny Plaintiffs' corresponding Motion in Limine (Doc. #140-2). Dated: October 15, 2006 Respectfully submitted, SUE ELLEN WOOLDRIDGE Assistant Attorney General Environment and Natural Resources Division s/William J. Shapiro WILLIAM J. SHAPIRO Trial Attorney United States Department of Justice Environment and Natural Resources Division Natural Resources Section 501 I Street, Room 9-700 Sacramento, CA 95814 (tel) (916) 930-2207 Counsel of Record for Defendant

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Plaintiffs' reliance on Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001), is equally misplaced. The Tulare court's interpretation of California state law has no precedential value and its value as non-precedential authority has certainly been called into question by the criticism of that decision in both federal and state courts. See NRDC Amicus Corrected Br. at 24-27, 29-31 (filed Oct. 11, 2006) (Doc. #131) (citing Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504 (2005); Allegretti & Co. v. County of Imperial, 42 Cal.Rptr.3d 122 (Cal. App. 2006)). 3

Case 1:04-cv-00541-CCM

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KRISTINE S. TARDIFF United States Department of Justice Environment and Natural Resources Division 53 Pleasant Street, 4th Floor Concord, NH 03301 LUTHER L. HAJEK United States Department of Justice Environment and Natural Resources Division P.O. Box 663 Washington, DC 20044-0663 OF COUNSEL: SHELLY RANDEL United States Department of the Interior Office of the Solicitor Branch of Water and Power Division of Land and Water Resources 1849 C St., N.W. Washington, DC JAMES E. TURNER Assistant Regional Solicitor United States Department of the Interior Office of the Regional Solicitor Pacific Southwest Region 2800 Cottage Way, Room E-1712 Sacramento, CA 95825

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