Legal Campaign Update

Background: 

In 2013, the Restore Hetch Hetchy Board of Directors elected to pursue a litigation campaign to restore Yosemite National Park's Hetch Hetchy Valley.

Internally, we agreed that challenging San Francisco's use of Hetch Hetchy Valley as a violation of the California Constitution's prohibition against any "unreasonable method of diversion" appeared to be a viable approach. But we understood that we needed to research the approach fully before committing to proceed. We undertook the following steps:

  • We vetted our "unreasonable method of diversion" approach with more than a dozen attorneys who specialize in California water law;
  • We engaged Michael Lozeau (Lozeau Drury LLP) to research cases involving the Constitution's  unreasonable method of diversion provision and other relevant statutes;
  • We worked with Lozeau and Richard Frank (Professor of Environmental Practice and Director of the California Environmental Law & Policy Center at UC Davis) to refine our approach for filing the case and to determine what expert testimony would be required;
  • We retained consultants to develop evidence in support of our petition and to eventually deliver in court; 
  • After two years of preparation, we were ready to finalize the petition and file it in court!

Below you'll find a brief summary of our legal campaign to date. We'll keep this page updated as our case winds its way through the legal system. We continue to need additional financial support to see this case to its conclusion.

Feel free to call or email if you have any questions or would like more detailed information.

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Hetch Hetchy in 1911 - two years before Congress granted San Francisco permission to clear-cut, dam and flood the valley.

Restore Hetch Hetchy's petition

Restore Hetch Hetchy filed a petition on April 21, 2015 (John Muir's birthday) in Tuolumne County against the City and County of San Francisco (press release, newsletter article).

The petition claims:

    • Hetch Hetchy Reservoir violates the California Constitution - specifically the mandate within Article X, Section 2 which requires that the "method of diversion" for all water use must be reasonable,
    • The recreational value of restoration alone, measured over 50 years, is up to 8.8 billion dollars, and
    • The cost of water and power system improvements necessary to make restoration possible is approximately 2 billion dollars - also over 50 years.

The Petition asks:

    • For a "declaratory" ruling that Hetch Hetchy Reservoir violates California law, and
    • For San Francisco to develop a detailed plan to make water system improvements necessary to make restoration possible (Restore Hetch Hetchy recommends San Francisco be given adequate time to make necessary improvements. We don't want our opponents to lose one drop of supply). 
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The O'Shaughnessy Dam violates Article X, Section 2 of the California Constitution.

San Francisco's initial response 

San Francisco's initial response was to file a motion to change venue - to move the trial from Tuolumne County to San Francisco.

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Our case is being heard in Tuolumne County where the ongoing damage to Yosemite National Park continues in the modern and functional new courthouse in Sonora, around the corner from the historic building (shown above).

San Francisco's second response

San Francisco filed a "demurrer" and a "motion to strike" on December 22, 2015. The City would like to dismiss or diminish our case on legal grounds, before any evidence is heard.

    • San Francisco claims:
      1. California courts lack jursidiction because San Francisco was granted permission to build O'Shaughnessy Dam and Hetch Hetchy Reservoir by Congress,
      2. The statute of limitations for any such petition has expired,
      3. Restore Hetch Hetchy has failed to "state a claim", and 
      4. The Court has no authority to require San Francisco to develop a restoration plan.
    • Restore Hetch Hetchy's opposition to San Francisco's demurrer and motion to strike - January 15, 2016
    • San Francisco's reply to our opposition to its demurrer and its reply to our opposition to its motion to strike - January 22, 2015
    • Oral argument - January 29, 2016 (brief summary)
      • The judge opened by saying that this case was a "big deal" and the he wanted to be careful to get it right. He said that because of certain complications in scheduling, there was not time for extended oral argument but asked for some discussion of items 1 and 3 as listed above in San Francisco's claims.
      • Discussion of item 1, whether California courts have appropriate jurisdiction, centers on Section 11 of the Raker Act which clearly states "...nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the State of California ...".
        • San Francisco cites examples where that same language in other statutes has been determined to have limited meaning. 
        • We contend San Francisco's examples relate to statutes that are very different from the Raker Act. The Raker Act granted permission for San Francisco to build a series of reservoirs, pipelines etc. San Francisco's examples pertain to dams and reservoirs built and operated by the federal government. Restore Hetch Hetchy researched this area of law in 2013 before pursuing our current legal strategy.
      • Discussion of item 3, "failure to state a claim", pertains to the meaning of Article X, Section 2 of the California Constitution. It reads in part, "The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water."
        • San Francisco contends that the phrase "unreasonable method of diversion of water" pertains only to water that is wasted. They allege that since we have not claimed that the city wastes water, we have not "stated a claim".
        • We allege that "unreasonable method of diversion of water" has far broader meaning that San Francisco admits, and we showed where the provision has been previously applied in an environmental context.
      • The judge closed by saying that he needed time to read the briefs more carefully. He left open the possibility that he might call us back for additional oral argument. So stay tuned. 

On April 28, the Tuolumne County court ruled in San Francisco's favor on two of its claims:

      1. California courts lack jursidiction because San Francisco was granted permission to build O'Shaughnessy Dam and Hetch Hetchy Reservoir by Congress, and
      2. The statute of limitations for any such petition has expired.
    • Restore Hetch Hetchy believes the Court ruling is in error and immediately announced an intention to appeal.

Restore Hetch Hetchy Appeal

On September 2, Restore Hetch Hetchy received notice from the 5th Appellate District that our opening brief is due October 12, unless an extension is given for some reason.

The 5th Appellate District is located in Fresno. A three judge panel will be assigned to hear our appeal "de novo", i.e. without reference to the legal conclusions or assumptions made by the previous court which heard the case.

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Restore Hetch Hetchy's principal attorneys: Mike Lozeau (Lozeau Drury) and Rick Frank, Professor of Environmental Practice and Director of the California Environmental Law & Policy Center.

Along with our attorneys, Mike Lozeau, Meredith Wilensky and Rick Frank, we believe the merits are firmly on our side and we are cautiously optimistic. Kevin Seibert, the trial court judge in Tuolumne County, did, however, rule against us after substantial briefing and a very short oral argument. Careful analysis of his ruling will help to inform the brief we submit to the appellate court.

Once notice is given for a case like ours, the schedule goes roughly as follows (though it is subject to change):

  • Appellant (Restore Hetch Hetchy) is given 40 days to file a brief. This takes us to October 12.
  • Defendant (San Francisco, along with BAWSCA, Turlock and Modesto) is given 30 days to respond (November 11).
  • Appellant is given 20 days to reply (December 1).
  • Any Amici Curiae briefs are due 14 days later (December 15). 

It does not appear that there is any deadline for the court to schedule an oral hearing for our case. We will continue to be patient, but we are happy to be moving forward. 

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The successful campaign to restore Mono Lake depended on victories at the appellate level as well.

Restore Hetch Hetchy is committed to substantive discussion of the merits of restoration - something San Francisco steadfastly continues to resist. We continue to believe that a fair hearing of the costs and benefits of our proposal will lead to the restoration of Hetch Hetchy Valley in Yosemite National Park. 

Appeal update - March 4, 2017

Restore Hetch Hetchy filed our brief in the appellate court on October 17, 2016

San Francisco filed a "response" to our brief on December 21, 2016

Restore Hetch Hetchy filed our "reply" on March 3, 2017.

The arguments in our briefs make for scintillating reading. Below, however, is a short summary of the issues at hand for anyone without the time or inclination to dive into the legal documents.

    • Federal preemption:
      • The trial court ruled that Congress ordered that a dam be built, and that since federal law supercedes state law, we have no business challenging O'Shaughnessy Dam and Hetch Hetchy Reservoir in State court.
      • We have responded with the plain language of Section 11 (a "savings clause") of the Raker Act, which preserves State authority over the distribution of water, as well as a plethora of statements in the Congressional Record which support the right of California to implement its own water law over San Francisco's system. Further, we note that the Raker Act is very different than the Reclamation Act, which has its own savings clause, because in the case of Hetch Hetchy, the United States is acting as a landowner, not a regulator - i.e. Hetch Hetchy Reservoir is not a federal project like Shasta Reservoir. Section 11 reads in part:

"nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the State of California relating to the control, appropriation, use, or distribution of water

 

        • Statute of limitations:
          • The trial court ruled that our claim should have been filed within 4 years of the enactment of Article X, Section 2 of the California Constitution, which states in part (emphasis added):

"The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water."

 

  • Our response is that "reasonableness" is an evolving standard, so a statute of limitations cannot apply. We back this up with several examples - what might have been a reasonable use of water in 1950 may not be reasonable today.
  • Failure to state a claim:
    • The trial court did not rule on San Francisco's assertion that we "failed to state a claim". San Francisco asked the appellate court to rule on this issue.
    • San Francisco's assertion essentially conflates the different sections of Article X, Section 2 (see above), by saying that a method of diversion cannot be unreasonable if the water is used reasonably. We have made no claim that the City wastes water. We claim only that they divert it unreasonably (into Hetch Hetchy Reservoir). The law is clear that either is a violation, and this clear interpretation has been successfully applied in the past.

We believe the merits are strongly in our favor, and look forward to a hearing before the appellate court. Our fingers will remain crossed as we wait.

Amicus Briefs - March 17, 2017

On March 17, 2017 four parties filed "amicus briefs" in support of sending our case to the California courts for a hearing on the merits of restoration. (An amicus curiae  - literally, a friend of the court - is someone who is not a party to a case and is not solicited by a party, but who assists a court by offering information that bears on the case.) We are extremely pleased to have this support. 

Most prominent is support from the California Attorney General and State Water Resources Control Board! 
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The State Water Board's amicus brief supports our right to present the merits of restoration in the California Courts!  The brief's summary concludes "This Court should reverse the trial court’s rulings on statute of limitations and preemption. It should further instruct the trial court to determine the reasonableness of San Francisco’s water diversion at Hetch Hetchy."

 
Thanks to the comprehensive research of our attorneys, Michael Lozeau, Meredith Wilensky and Rick Frank, we have never doubted our legal approach, just as we are also confident that San Francisco can fully meet the needs of it customers without storing water in Yosemite. Still it's great that we have this broad and diverse support. 
 
The parties that filed "amicus briefs" in support of our case, include:
The former superintendents and statewide officials have all previously gone on record as supporting restoration of Yosemite's Hetch Hetchy Valley. The law professors and State Water Board have not done so - they simply support our effort to have the merits of restoration considered by the state courts. We are grateful for the support of these amici, and look forward to a hearing in the appellate court. 

Two amicus briefs were filed in support of San Francisco, by

These briefs reflect an unfortunate solidarity among water districts in spite of the support for restoration of many prominent staff and board members at many water agencies. On the whole, however, it appears that these agencies are determined to protect each other's interests, even when it includes a dam in Yosemite National Park.

Curious readers should realize that these briefs are generally accessible, even for non-lawyers. While it may be impossible for many to follow the legal references, the thrust of the arguments is usually clear - and all briefs include a summary up front. So don't be shy, open a few of these links and see what you think.

Parties Comments on Amicus Briefs - May 2, 2017

The final briefs filed in this phase of our legal campaign were San Francisco's comments filed in response to the amici filed in support of Restore Hetch Hetchy's legal arguments and Restore Hetch Hetchy's comments filed in response to the amici filed in support of San Francisco's legal position. 

Waiting for a hearing

Now that all briefs have been submitted to the appellate court, we wait. The court will appoint a panel of three judges, who will read the briefs  and schedule a hearing on the matter. We have no control over the timing but hope it will take place by this coming fall.

Restore Hetch Hetchy has always anticipated that San Francisco will challenge us at every opportunity. We knew we would end up in the State appellate court. We had hoped, however, that a trial - a hearing where both sides present evidence of the benefits and costs of restoration - would have taken place before any appeal. Unfortunately, the Tuolumne County Superior Court's ruling has forced us to undergo a lengthy appeal before we can even address the merits of restoration.

It is hard to be patient, but we have no choice. We continue to press forward for an opportunity to discuss the merits of restoration in a public forum and ask the court to declare that San Francisco's diversion at Hetch Hetchy violates the California Constitution.