Legal update, Fresno here we come!

Court Notice Received: Restore Hetch Hetchy Appeal Moves Forward

The wheels of justice turn slowly, but they do turn. 

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

We are pursuing our claim that Hetch Hetchy Reservoir violates the California Constitution's prohibition against any unreasonable method of diversion. See our "Legal Campaign Update" page for an overview of our case from its inception. 

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. 

 The judges will consider two issues: Very briefly:

  1. Whether our case is preempted by federal law. Hetch Hetchy Reservoir, along with other reservoirs, pipelines and powerhouses, was authorized by Congress when it passed the Raker Act in 1913. Note that the federal Raker Act includes a "savings" clause (Section 11), which clearly states that it does not interfere with California's ability to control water within the state. Furthermore, Hetch Hetchy Reservoir, unlike Shasta, Folsom and other reservoirs, is not a federal project and is not run by a federal agency. It is simply a grant of right-of-way to San Francisco, and so there is no reason it should be exempt from State law.
  2. Whether the statute of limitations for our case has elapsed. It is well established that "reasonableness" is an evolving standard, so no statute of limitations can apply.
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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.

We wish we had we prevailed on these issues in Tuolumne County. San Francisco, however, would no doubt have appealed such a ruling. So either way, we would end up in the appellate courts. Note also that a large number of cases, environmental and otherwise, eventually succeed after initial adverse rulings.

We are 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. 

 

More to come.