We were disappointed to learn last week that the California Supreme Court has declined our request for review. The highest court in California has allowed the appellate court's earlier ruling to stand - that San Francisco must not fully comply with the reasonableness provisions of the California Constitution.
Essentially, the courts have ruled that because the Raker Act allowed San Francisco to build a dam in Hetch Hetchy Valley, so its "savings clause" (the concluding provision which says all aspects of the Act must comply with California law) is limited in scope.
Unless we can get reprieve from the United States Supreme Court, our legal challenge to San Francisco will come to an end.
United States Supreme Court - We are considering an appeal to the United States Supreme Court. They take few cases, and (as important as the case is to us) we have to determine how to make it appeal to them. We have a few ideas and are working on them.
Value of Restoration - We plan to publish the study we commissioned 4 years ago which assesses the value of restoration. It's been under wraps because we had hoped to use it at trial. Now we will be using it in various courts of public opinion, including the halls of government in San Francisco, Sacramento and Washington DC. It's an odd thing to put the value of a second Yosemite in dollars and cents, but if its helps restore the valley, we think John Muir would forgive us. We will probably release the study shortly after the election.
When Secretary of Resources Mike Chrisman (on behalf of Governor Schwarzenegger) wrote to then Assembly members Joe Canciamilla and Lois Wolk (above with Actor Harrison Ford and Interior Secretary Donald Hodel) in 2004, he announced he had asked California's Department of Parks and Recreation to work with the National Park Service "to identify accepted economic approaches to estimate a parkland value for a restored Hetch Hetchy Valley". This part of the State's Hetch Hetchy Study (2006) never happened, so Restore Hetch Hetchy commissioned the analysis and will soon release its findings.
Water supply alternatives - We also invested in additional research on water supply alternatives before we filed our lawsuit in 2015. A lot has changed since then and the State Board is scheduled to vote on its Bay-Delta plan on November 7, which may mean big changes for San Francisco as well as the irrigation districts that rely on the Tuolumne River. We will update our water and power system research to reflect these changes and make that public as well - but it will take a little longer.
Interior - Since our meeting with Secretary of the Interior Ryan Zinke on July 23, we are continuing to talk with the Department of the Interior about the future of Hetch Hetchy. Interior understands that the American people have lost a second Yosemite and that San Francisco has enjoyed a privilege not available to any other city. Our discussions have been encouraging, but both sides have been cautious. If and when there is something substantive to report, you'll hear it first from the Department, then from me.
2018 Election - All elections bring change. There are a few specific outcomes that could provide opportunities for us after November 6.
- We are still convinced of the merits (legal and technical) of our claim. It's easy to be a Monday morning quarterback and imagine things might have turned out differently if we had modified our approach. Overall, however I think we (i.e. our attorneys) did a very good job. Some might disagree, but I think we might have had a more favorable outcome if we'd been assigned different judges.
- We lost three times, and each loss seemed unfair (Warning - if this section seems like whining, it probably is.)
- When we went to the trial court for oral argument in 2016, there were several other cases on the judge's docket for the 9-10 A.M. slot. The judge was new and said himself we did not have enough time. After the attorneys spoke for about 20 minutes, the judge indicated he would continue the hearing another day when there was more time. Instead, the he wrote a decision in favor of San Francisco.
- The appellate hearing did allow ample time - slightly over an hour. But the judges, at oral argument and in their written opinion, never addressed the very clear statements in the Raker Act's legislative history that everything in the act was conditioned on compliance with State law. Nor did the court address why it was relevant to rely on previous court rulings under the Reclamation Act - a statute very different from the Raker Act.
- When the Supreme Court declines review, it doesn't say why. We simply received an email Wednesday afternoon.
- I have really appreciated working with our attorneys, Mike Lozeau and Rick Frank. I hope we are not done, but Mike and Rick have done outstanding work on behalf of Restore Hetch Hetchy. I have played a fairly minor part in editing our briefs, but I have watched the process throughout and been impressed.
- I also really appreciate the folks who submitted amicus briefs supporting our case at the appellate level, as well as those who supported our request for review at the Supreme Court.
- We are all disappointed. Speaking for myself, I have absolutely no regrets. There is no shame in losing. San Francisco can be happy that they won, for now, but they should take no pride in their continued occupation of Yosemite's Hetch Hetchy. We knew going into this that we were trying to do something unprecedented and that our opponents were powerful. If we could start over and take another shot at the California courts, I would do it in a heartbeat.
- Finally, I want to thank everybody who supports Restore Hetch Hetchy - financially and spiritually. We have lost this battle but our determination to prevail is undiminished. As Harrison Ford says, "It's a practical idea, and a great opportunity to do something for the planet and for our children."
More to come.