Fresno Judge Rejects Westlands Water District’s Proposed Permanent Water Contract
C-WIN and Partner Groups Stop a Massive Water Grab
This piece also appeared in The Daily Kos and Red, Green, and Blue.
By Dan Bacher
OCTOBER 30, 2021
SAN FRANCISCO, CA – On October 27, Fresno Superior Court Judge D. Tyler Tharpe tossed out the Westlands Water District’s proposed permanent federal water contract from the Central Valley Project (CVP) that would have allocated roughly double the amount of water that Los Angeles residents use in a year.
Tharpe found Westlands, the largest federal irrigation district in the nation, to “have misled the court and the public,” according to a statement from the Pacific Coast Federation of Fishermen’s Associations (PCFFA), one of the organizations that joined in the lawsuit against Westlands.
The contract would have provided Westlands, located on the west side of the San Joaquin Valley, access to 1.15 million acre-feet of water for irrigation and other purposes, but it wouldn’t have guaranteed that amount of water for the district’s growers in a critically dry year like the 2020-2021 water year that ended on September 30.
In rejecting the contract, Judge Tharpe ruled that the unfinished and incomplete contract lacked key financial terms and proper public notice under the Brown Act and thus, could not be validated, stating:
“…the [Westlands] Board’s decision nevertheless could not be properly validated because it had sought to validate an incomplete, uncertain proposed contract. (March 16, 2020 Order, pp. 4-5.) Judge Simpson also found that the Board had failed to meet its burden of showing that it complied with the Brown Act before it adopted the resolution to approve the contract. (Id. at pp. 5-6)
Therefore, as the court has already found that the Board’s decision to approve and execute the contract was not the proper subject of a validation action, it cannot now grant validation as to any portion of the Board’s decision. As a result, the court intends to deny the renewed motion for a validation judgment, in its entirety. See pg 6 of Tentative Ruling in Westlands Water District v All Persons Interested in the Matter Case No. 19CECG03887.”
A wide array of fishing groups, Tribal organizations, environmental groups, counties and water districts joined PCFFA in the lawsuit. These include the North Coast Rivers Alliance, Winnemem Wintu Tribe, California Sportfishing Protection Alliance, Institute for Fisheries Resources, San Francisco Crab Boat Associations, County of San Joaquin and County of Trinity, Central Delta Water Agency, South Delta Water Agency, California Water Impact Network, Center for Biological Diversity, AquAlliance, California Indian Water Commission, and Planning and Conservation League.
“Federal law requires state courts to ensure public review of contracts between water districts and the Bureau of Reclamation. Without a decree from the Fresno court, the contract does not bind Reclamation to the contract terms and fails to comply with federal law,” according to the PCFFA.
“This is a victory for the rule of law, fishery protections and the public’s water supplies,” said Pacific Coast Federation of Fishermen’s Associations Executive Director Mike Conroy. “Westlands hid the ball from the public and rushed this contract through to get a sweetheart deal from their former lobbyist David Bernhardt whose Interior Department put in the fix to try to escape more than $400 million in fish and wildlife mitigation costs owed.”
“This was an effort to basically steal public resources and put them into private pockets,” Stephan Volker, an attorney for the Winnemem Wintu Tribe, the North Coast Rivers Alliance, California Sportfishing Protection Alliance and other groups filing the lawsuit, told Kathleen Ronayne of the Associated Press: https://apnews.com/article/business-environment-and-nature-california-environment-fresno-02194469a3b70dbcee20e00802804819
In October 2019, Westlands, without a final contract, lacking financial terms, and lack of public notice attempted to “sneak” their permanent water contract through the Fresno Court, Conroy said. Fishing, conservation, Tribal, water agencies and counties from where the water is being taken then filed suit to block the validation of this contract.
“This is an important victory for efforts by PCFFA and salmon-dependent industries to keep even more water from being withdrawn from the San Francisco Bay Delta to feed insatiable water demands from Westlands and other big, corporate agribusiness interests depending on the already highly subsidized federal irrigation water system that makes up the Central Valley Project (CVP),” said Conroy.
“The California water supply has been notoriously over-appropriated for decades, leading to massive losses of native salmon from California’s central valley rivers, and major economic declines for the industry and hard-working commercial fishing families that PCFFA represents. Under the proposed contract, California State agencies would be denied millions of program dollars. Now, a revised and redrafted water supply contract will be required to ensure those dollars be protected,” noted Conroy.
Conroy said he agreed with the PCFFFA’s past officer Larry Collins, from the San Francisco based Crab Boat Owners Association, who stated, “the Administration needs to rescind these federal contracts, collect the $400 million and ensure compliance with financial obligations under Reclamation law as well as environmental protection laws. Reclamation should stop allowing the abuse of this precious public resource and Westlands along with other CVP contractors to sneak around the rules.”
The PCFFA noted that by statute, Westlands and other Central Valley Project (CVP) contractors are required to pay all their obligations to the taxpayer to get this publicly subsidized water. Among the missing contract terms are repayment of $400 million in costs owed by these contractors for environmental restoration of the damage caused by 80 years of federal Valley Project water and power extraction.
Signed by George H. W. Bush in 1992, the Central Valley Project Improvement Act (CVPIA) made fish and wildlife restoration a purpose of the Central Valley Project for the first time and made payment for restoration a cost of doing business for the water contractors.
“Without cost collection from the contractors, the required restoration will likely fail. The contract fails to ensure collection of all the costs for future operations and damages to fish and wildlife,” PCFFA concluded.
The Hoopa Valley Tribe also praised the Judge’s decision in a press release.
“The Hoopa Valley Tribe’s Trinity River fishery is one of the CVP’s victims,” said Hoopa Valley Tribal Chairman Joe Davis. “But the contractors never wanted to pay the costs of restoration that Congress made a condition of future water delivers in the CVPIA.”
“Westlands led the charge against paying and has opposed Trinity restoration for decades,” said Hoopa Fisheries Director Michael Orcutt.
“But Westlands wouldn’t exist without Trinity River water being taken from our fishery,” added Vice- Chairman, Everett Colegrove Jr. “And that transfer of wealth has generated billions for Westlands and other CVP contractors, with devastating impacts to Hoopa’s economy, culture, and community.”
For more than ten years, the Tribe tried to get Reclamation to charge the contractors for Trinity Restoration costs, according to Orcutt.
“It’s no secret that the Westlands Water Corporation sells the Trinity River water for hefty profits. Yet, we could never get a straight answer on the accounting from Reclamation,” said Orcutt. “But we knew that these CVP contracts were going to be permanent, and it was our last chance to make sure Reclamation collected the money.”
According to Orcutt, as these contracts were being negotiated, “Reclamation made clear to Hoopa that it would ignore the financial accounting Hoopa sought and the law required.”
“Hoopa decided that it had no choice but to sue its federal trustee, the Federal Interior Department,” stated Orcutt. “We have been in federal court since August 2020.”
The Westlands Water District disagreed strongly with the assessment of Tribes, fishing groups and environmental organizations that the Judge rejected the district’s contract.
”The Judge did not reject the District’s contract, but rather he ruled that he did not have jurisdiction and was unable to validate the contract,” said Shelley Cartwright, Westlands spokesperson. “He did not make a ruling on the substance or validity of the contract itself. As for a reaction to the court’s order, the District is evaluating the order and considering options.”
Stephan C. Volker represented the North Coast Rivers Alliance, Winnemem Wintu Tribe, California Sportfishing Protection Alliance, Institute for Fisheries Resources, Pacific Coast Federation of Fishermen's Associations and San Francisco Crab Boat Associations in the case.
Thomas H. Keeling and Roger B. Moore represented the County of San Joaquin and County of Trinity.
S Dean Ruis and Dante John Nomellini represented the Central Delta Water Agency and South Delta Water Agency.
Adam Keats represented the California Water Impact Network, Center for Biological Diversity AquAlliance, California Indian Water Commission, and Planning and Conservation League.
John Buse represented the Center for Biological Diversity.