Citizens Legal Enforcement & Restoration v. Connor

FILED

NOT FOR PUBLICATION SEP 10 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITIZENS LEGAL ENFORCEMENT No. 11-55380 AND RESTORATION, an unincorporated California nonprofit association, D.C. No. 3:06-cv-02368-JLS-

WMC

Plaintiff - Appellant,

v. MEMORANDUM*

MICHAEL L. CONNOR, Commissioner of the Bureau of Reclamation; SALLY JEWELL, Secretary of the Interior; NEIL KORNZE, Acting Director of the Bureau of Land Management; DAN ASHE, Director of the Fish and Wildlife Service; JILL JOHNSON, in her official capacity as President of the Board of the Palo Verde Irrigation District; ED SMITH, in his official capacity as General Manager of the Palo Verde Irrigation District,

Defendants - Appellees.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding

Argued and Submitted February 4, 2013 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R.…

concurring in part and concurring in the result:

I agree with the majority that CLEAR’s claims for prospective relief are not time-barred and that its public trust and state constitutional claims impermissibly seek to compel agency compliance with broad statutory mandates rather than discrete actions. Unlike the majority, however, I do not think that the plain text of California Fish and Game Code § 5937 limits its application in this case. The statute says nothing about the purpose for which the dammed water is to be used. A dam is defined broadly to “include[ ] all artificial obstructions.” Cal. Fish & Game Code § 5900 (a).

I agree with the result, however, because Section 8 does not apply here. State law cannot dictate the structural or operational requirements of a federal levee that crosses the California-Arizona border in such a way that would affect the interstate *590 flow of water along the lower Colorado River through the Cibola Cut. See California v. United States, 438 U.S. 645 , 674 & n. 29, 98 S.Ct. 2985 , 57 L.Ed.2d 1018 (1978) (“[T]he [Boulder Canyon] Project Act ‘plainly allows the States to do things not inconsistent with the Project Act or with federal control…

MEMORANDUM *

During the 1950s and 60s, the Bureau of Reclamation (“Reclamation”) built a diversion dam, known as the Pretty Water Levee, at the top of a river meander on the lower Colorado River. At the same time, Reclamation constructed an artificial channel below the Levee, known as the Cibola Cut, into which the river was diverted. The river rejoins its natural bed at the bottom of the Cut, about twelve miles downstream from the Levee. The construction of the Levee and the Cut have reduced erosion of the river bank, reduced sediment load in the river, and helped control floods. Except for an insignificant amount of seepage through the Levee, the old river channel (“ORC”) no longer receives water from the river. The only water the ORC receives is from the Palo Verde Drain, which collects and delivers water from a large irrigation system west of the river. The lowering of the water level in the ORC due to the diversion of the river has improved outflow from the Drain, but the volume of water from the Drain is a very small fraction of the volume of river water that ran through the ORC before construction of the Levee.

The plaintiff in this case, Citizens Legal Enforcement and…