An important case involving the delivery of water to farmers and fish appears to have sputtered to an end with the Ninth U.S. Circuit Court of Appeals’ short-order rejection of the farmers’ claims.

Two San Joaquin Valley farmers and two water agencies sued the Bureau of Reclamation over the bureau’s plan for operating New Melones Reservoir. Under that plan, the bureau releases water for fishery habitat purposes during the spring and fall. The farmers argued that the plan violated the 1992 Central Valley Project Improvement Act (CVPIA) because a study had forecast that the New Melones releases for fish would cause the bureau to violate a state salinity standard for water pumped from the Delta to the San Joaquin Valley. The farmers claimed they were due damages for future harm to their crops.

In a 2002 decision that concerned environmentalists, the Ninth Circuit ruled that the farmers and water agencies had legal standing to pursue their claims in court (Cent. Delta Water Agency v. United States, 306 F.3d 938 (Central Delta I); see CP&DR Legal Digest, January 2003). The Ninth Circuit returned the case to District Court, where Judge Oliver Wanger rejected the claims. On appeal, a different three-judge panel upheld the lower court because the Bureau had not violated the CVPIA since 1994, and because the farmers and water agencies had not shown that future violations were more than hypothetical.

“As an initial matter, the Delta parties [the farmers and water agencies] argue that they need not show an actual violation of the CVPIA because our prior decision in Central Delta I is the ‘law of the case,’” Judge Stephen Trott wrote. “There is no such law of the case, however, because our decision on standing does not obviate the need to address the merits of the litigation. … The Delta parties cannot stand on our prior decision to avoid the need to demonstrate an imminent statutory violation.”

The Case:
Central Delta Water Agency v. Bureau of Reclamation, No. 04-16632, 06 C.D.O.S. 4191, 2006 DJDAR 6160. Filed May 22, 2006.
The Lawyers:
For Central Delta Water Agency: Daniel McDaniel, Nomellini, Grilli & McDaniel, (209) 465-5883.
For the bureau: David Shilton, Department of Justice, (202) 514-2000.