Restore Hetch Hetchy files petition for review
with California Supreme Court
On Thursday, we filed a petition with the California Supreme Court, asking it to review the appellate court ruling that San Francisco need not comply with California law - specifically the mandate in article x, section 2 of the State Constitution which prohibits any unreasonable "method of diversion". The petition is posted online and is mostly easy to understand - just ignore the legal references if you are not a lawyer.
The essence of our campaign is wholly consistent with our legal approach: Hetch Hetchy is worth more as a valley than it is as a reservoir. Many of us know this in our hearts, but for legal purposes we have broken this statement down analytically. Our original brief assigns monetary values to restoration as well as to the cost of system improvements to make it possible - including making sure that not one drop of water supply is lost.
"the bill is not drafted nor designed nor intended to usurp the powers of the State of California in the matter of control of the distribution of water"
- Congressman John Raker, author of Raker Act
The legal issue at hand, which to date has prevented a trial on the merits of restoration, is that the courts have ruled that when Congress passed the Raker Act, it allowed San Francisco to build a reservoir on federal land(*), federal law trumps state law, and state law cannot interfere with the will of Congress. So we are "preempted" - at least for now.
The Raker Act, however, includes a robust "savings clause" in its final Section:
"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."
Note also that the Raker Act's legislative history is replete with statements by members supporting the importance of the savings clause, including Rep. Raker himself.
Our petition presents a number of reasons why review should be granted. Some are legal and may not be readily transparent to all. Others are simple and profound. We are asking for review because the issue at hand is an important question of law. In particular:
- The future of Yosemite National Park is at stake,
- The sovereignty of California water law may be compromised by the appellate court ruling, and
- A question of fairness is raised - should San Francisco need to comply with the same laws that other water agencies comply with?
We are especially grateful to our lead attorney, Michael Lozeau, for his hard work on this petition and his long term support of our legal campaign. And we also thank Rick Frank for working closely with Mike through the drafting process.
* The Raker Act allowed San Francisco to build a series of reservoirs, pipelines and powerhouses. When Hetch Hetchy Reservoir is emptied so that the valley can be restored, the rest of these facilities will still be operational.