Restore Hetch Hetchy Files Appeal
San Francisco's Water System Must Comply with California Law
October 18, 2016
Restore Hetch Hetchy has formally asked the appellate court to rule that San Francisco's water system, like all others in the state, must conform to California law.
Evidence presented at trial will show that Hetch Hetchy is worth more as a valley than as a water tank.
Restore Hetch Hetchy has claimed that San Francisco's diversion of water into Yosemite National Park's spectacular Hetch Hetchy Valley violates the California Constitution's prohibition against any "unreasonable method of diversion". In other words, Hetch Hetchy is worth more as a valley than as a water tank.
Restore Hetch Hetchy is prepared to support this claim with evidence. The trial court in Tuolumne County, however, ruled in April that the California Constitution is irrelevant because federal law allowed the construction of Hetch Hetchy and other reservoirs, and because the statute of limitations for any such claim has passed.
So Restore Hetch Hetchy has been forced to appeal the trial court's ruling before being able to address the substantive merits of restoration. Interested parties should find the brief, posted online, fairly easy to understand, though may wish to skip over some of the legalese. In summary:
Federal preemption does not apply because the Raker Act includes a "savings clause" (Section 11) - stating "nothing ... shall ... interfere with the laws of the State of California." The Congressional Record is replete with evidence that this was indeed Congress' intent, including the statement by Congressman Raker himself "the laws of the State of California shall control absolutely the question of water rights and the interests of those that it may effect, and this bill does not attempt to supersede the laws of the State of California".
Restore Hetch Hetchy's claim is not barred by any statute of limitations. It is well established that "reasonableness" is an evolving standard. Courts have already ruled that "What constitutes reasonable water use is dependent upon not only the entire circumstances presented but varies as the current situation changes," and that the evolving standard of reasonableness precludes the application of a fixed statute of limitations.
It will be several more months before the record for the appellate court will be complete. San Francisco will file a "response" to Restore Hetch Hetchy's brief, then Restore Hetch Hetchy will file a "reply" to the City's response. Finally, any interested third parties will be given two weeks to file an amicus curiae (friend of the court) brief.
Once the record is complete, a three judge panel in the 5th Appellate District (Fresno) will review the merits of the arguments and schedule an oral hearing.
Restore Hetch Hetchy looks forward to getting past legal challenges and to discussing the benefits and costs of restoration in a public forum.
A century ago, our nation sought to tame the wilderness with large-scale engineering projects, occasionally with destructive results. Today we should commit to undoing one of the worst examples of that destruction. And tomorrow, we can watch a magnificent valley emerge from the depths.
Let's make Yosemite National Park whole once again.
--- Robert Binnewies, B.J. Griffin and David Mihalic, former Superintendents, Yosemite National Park