Posted on 03/20/2003 10:54:53 AM PST by concentric circles
A federal judge in San Diego yesterday issued a preliminary injunction blocking Interior Secretary Gale Norton from cutting Colorado River supplies to Imperial County, adding a new complication in a plan to bring more water to San Diego and peace to Western water wars.
During a four-hour hearing, the Imperial Irrigation District accused the federal government of conspiring with the huge Metropolitan Water District to take its water.
Imperial attorney David Osias pointed to e-mails between Interior officials and Metropolitan that he said discussed strategies to take Imperial's water. He said efforts were made to keep the communications confidential by labeling them "draft" documents.
Officials for the federal government and Metropolitan denied the accusations.
Meanwhile, a Metropolitan lawyer threatened to pull out of negotiations for a broad water agreement if the judge ruled for Imperial. Those fragile negotiations center on a proposed transfer of water from Imperial Valley farms to San Diego County that has become the linchpin to a seven-state pact to sharing the Colorado River.
But afterward, Metropolitan general counsel Jeffrey Kightlinger said the agency would look at all options, including an appeal.
Attorneys agreed the ruling by U.S. District Judge Thomas Whelan was narrow enough that it did not set precedent in water law and would not have an immediate impact on ratepayers, as some have feared. But continued uncertainty with the water supply could cause long-term problems.
Despite the negative tone inside the courtroom, some of the parties later sounded positive in urging that the water deal be implemented.
"As you can tell, the process has started and there is no end in sight," said Jim Taylor, an attorney for the San Diego County Water Authority who observed the proceedings. "We need to finish the agreement and get this behind us."
A spokesman for Gov. Gray Davis, who helped guide negotiators to a tentative water agreement unveiled last week, echoed the remarks.
"It's clear that this judge understands what's at stake and has protected water rights in California," said Byron Tucker, a spokesman for the governor. "If no agreement is reached, litigation could continue forever."
Imperial sued Norton this year after she cut the Imperial district's water supply by 205,000 acre-feet.
Her decision followed the collapse of talks among Imperial, the San Diego water authority, Metropolitan and the Coachella Valley Water District to reach agreement on a plan by Dec. 31 to gradually reduce the state's overuse of the river.
Neighboring states have complained for years that California has taken more than its legal entitlement.
That water deal, which re-emerged last week, would transfer up to 200,000 acre-feet of water to San Diego, enough for 400,000 households.
Imperial asked Judge Whelan for a preliminary injunction to stop Norton's order, arguing that she overreached her authority when she failed to follow proper procedure in cutting the water supply.
His order does not affect Norton's authority to cut water from California, but says that she failed to follow procedures in reducing Imperial's allotment.
Yesterday's hearing was attended by more than 30 attorneys representing all sides.
During the proceeding, Imperial attorney Osias said the e-mails, which are summaries of meetings between officials from the federal government and Metropolitan, proved that Interior had no intention of following the legal procedure.
"Why did they change the process?" Osias asked. "The answer is they already knew the result of the proceedings. They were going to cut (Imperial) back."
Government attorneys ridiculed the conspiracy theory and noted that everything discussed at the meetings has been talked about in public for years.
"(The rules) do not require that the bureau turn over everything it considers in internal deliberations," said Interior attorney Steve MacFarlane. "It's absurd to say this process involved some plot hatched out of thin air to take (Imperial's) water."
McFarlane argued that his department acted properly and that Norton's decision was based on the "beneficial use" doctrine that is part of every agreement to use Colorado River water. If the department finds that water is being wasted, it has the authority to reallocate supplies.
"The injunction (Imperial) is seeking . . . is asking your honor to become the water master of the Colorado River," said MacFarlane.
Bennett Raley, the Bush administration's point man on Colorado River issues, said the department needs to review the ruling before commenting. He also declined to discuss the e-mails.
Metropolitan and Coachella sided with Interior in the suit. Those two water agencies argued that their ratepayers would suffer much more serious consequences if Imperial kept its full allotment.
Metropolitan had its supply cut by 435,000 acre-feet, or enough for more than 800,000 households a year, by Norton's order. Imperial's victory means that Metropolitan could lose an additional 190,000 acre-feet, according to the Los Angeles-based district.
Coachella said more than $2 million in crops could go unplanted because it would lack the water to irrigate them.
"For Coachella, it does mean fields being fallowed," said attorney Steve Abbott.
Besides restoring Imperial's water, Judge Whelan also ordered the lawyers to submit papers on the next step in the case.
The judge indicated that he likely would order the Interior Department to follow the proper guidelines before attempting to cut Imperial's water again, or to file a complaint that the agricultural agency was wasting water.
Despite this victory, Imperial stressed that it is committed to the implementation of the larger agreement.
"We're willing to drop this lawsuit the minute all the conditions of the (agreement) are satisfied," Osias said.
The globalists would like to see us living in a country which no longer feeds itself but, rather, is dependent on others.
"— In a small, packed courtroom — where the attorneys outnumbered the public — ..."
"The water thieves have been rebuffed for awhile," ... "I think the end result of this is the parties will all have to sit down and work out an equitable agreement."
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