Firebaugh Canal Co. v. United States

The United States Government appeals a judgment entered against the Department of Interior and the Bureau of Reclamation that requires the Department to “take such reasonable and necessary actions to promptly prepare, file and pursue an application for a discharge permit” with the California Water Resources Control Board, pursuant to the Government’s duty to provide drainage under the San Luis Act. This court has jurisdiction over final judgments entered by the district court pursuant to 28 U.S.C. § 1291 . We agree with the district court that the Government’s duty to provide drainage service under the San Luis Act has not been excused by subsequent Congressional action, and that the Government has failed to provide the required drainage service for many years. However, the remedial order entered by the district court limits the Government’s discretion to satisfy its drainage duty in alternate ways without construction of the interceptor drain. Consequently, we affirm in part, reverse in part, and remand to the district court for further proceedings.

Procedural and Factual Background

The Central Valley Project is the nation’s largest federal reclamation project. The project’s…

Dissenting:

I conclude from this lengthy record that Judge Hug is correct when he says that, “any water project which brings fresh water to an agricultural area [with a layer of clay under the soil] must take the salty water remaining after the crops have been irrigated away from the service area.” A failure to take this obvious step leads inexorably to the spoliation of the agricultural capacity of the land intended to be benefited by the irrigation project. What is happening to the land here is akin to putting clothes from a washing machine without a rinse cycle directly into a dryer. Not only will the clothes emerge still dirty, but they will eventually be destroyed. Unfortunately, I’m afraid the majority opinion does similar damage to our legislative process that requires first the authorization of Executive Branch activity, and then the appropriation of money to pay for it.

Congress and various agencies of our government have failed for many years to come to grips with the difficult issues in this case, issues arising primarily from legitimate environmental concerns such as what the effluent from the project would do to the San Francisco Bay. The Kester-son Reservoir…