Lawsuit update: hearing scheduled for May 30

Patience is a virtue, or so they say

We are looking forward to May 30, when we will travel to Fresno for a hearing at California's Fifth District Court of Appeal

It's been a year since the last briefs were filed, and two years since a Tuolumne County Superior Court judge ruled that Hetch Hetchy Reservoir need not comply with the California Constitution.

We firmly believe the Superior Court was in error - see our Legal Campaign Update for a summary of our case to date. As I have said many times, we are thrilled that so many amici curiae have weighed in with the appellate court supporting our right to a trial on the merits under California law. These amici include law professors, former Yosemite Superintendents, Earth Island Institute, former statewide officials, and most notably, the California Attorney General on behalf of the State Water Board.

When we filed this case three years ago, we understood that litigation could be a slow process. We realized at the outset that it was highly likely we would end up at the Court of Appeal in Fresno. We had hoped, however, that we would not be in the appellate court until we had demonstrated at trial that San Francisco's O'Shaughnessy Dam and Hetch Hetchy Reservoir do violate the California Constitution on an ongoing basis. Had that been the case, we might today be negotiating restoration of Hetch Hetchy with elected officials even as San Francisco pressed forward with its appeal.



Photo: Matt Ashy Wolfskill (Library of Congress)

It's always been Restore Hetch Hetchy's goal to compel a fair and comprehensive discussion of the merits of restoration in comparison to its costs. San Francisco has successfully thwarted all attempts to have any such discussion for the past three decades. We aim to change that.

Here's a very short history of efforts to date to consider restoration. 

  • In 1988, San Francisco successfully prevented any federal funds from being used to even study restoration, preventing Secretary of the Interior Donald Hodel's proposal to consider the possibility from moving forward;  
  • In 2006, San Francisco leaders convinced the once-intrigued Schwarzenegger administration to leave any "further work" to the federal government; 
  • In 2008, the President Bush's initial budget included funds to study Hetch Hetchy's restoration but San Francisco again convinced Congress to remove that funding from the budget;
  • In 2012, San Francisco leaders pulled out all stops to defeat the measure F, even though it was only a proposal for a public study of the water system improvements that would be necessary to make restoration possible; 
  • So in 2015 we filed a lawsuit. We are seeking justice for Hetch Hetchy and its future visitors. 

San Francisco continues to try to avoid any discussion of the merits by claiming that it need not comply with the California Constitution. They point out the Raker Act, which allowed the City to build the dam, was a federal statute and federal law supercedes state law.

The plain language of the Raker Act, however, is clear. Its last section is a "savings clause", stating:

Sec. 11. That this act is a grant upon certain express conditions specifically set forth herein, and 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 used in irrigation or for municipal or other uses, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this act, shall proceed in conformity with the laws of said State.

Section 11 is a mouthful. But with its plain meaning, we are cautiously optimistic that the court will rule in our favor and we will finally have a hearing on the merits of restoration. 

P.S The origin of the adage "patience is a virtue" is unclear - perhaps it was one of Abraham Lincoln's internet postings. We've been patient, but only out of necessity - not virtue.