The California State Water Board, law professors, former Yosemite Superintendents and California officials agree - let the courts determine Hetch Hetchy's future.
The State Water Board's amicus brief supports our right to present the merits of restoration in the California Courts!
On March 3, 2017, our attorneys submitted our "reply" - our final brief to the appellate court making the case that it is appropriate for the California courts to evaluate whether diverting water into Hetch Hetchy Reservoir violates the California Constitution's prohibition against any "unreasonable method of diversion".
On March 17, 2017, four parties, including the State Water Board, 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.
A few parties filed amicus briefs in support of San Francisco as well. More on that later.
We've had to take our case to the appellate court because last May the trial court judge dismissed our case on two grounds. He ruled that Congress authorized building a dam in Yosemite and California water law does therefore not apply. Further he ruled that the statute of limitations for making any such claim has expired.
As both our initial appellate brief and our reply make clear, we believe the judge got it wrong on both counts. The plain language of the Raker Act as well as its Congressional history are clear that "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".
Further, as other cases have made clear, "reasonableness" under the California Constitution is an evolving standard and thus cannot be subject to a statute of limitations. What might have been reasonable 100 years ago, may be unreasonable today.
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:
- Former Yosemite Superintendents Barbara Griffin and Robert Binnewies,
- Environmental law professors from Stanford University,
- Former California statewide officials: Secretary of Resources Huey Johnson, Secretary of Resources Douglas Wheeler, Attorney General Dan Lungren, and Attorney General John Van de Kamp (*), joined by the Earth Island Institute, and
- The California State Water Resources Control Board.
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. We will report further on the content of these various filings and let you know when a hearing is scheduled.
* We are sad to report that John Van de Kamp passed away March 14. He was a strong advocate for the environment and a good friend of Restore Hetch Hetchy. We extend our condolences to John's family. See the Sacramento Bee for more on John's life and legacy.