Wolfsen Land & Cattle Co. v. United States

98 Fed. Cl. 507, 2011 U.S. Claims LEXIS 887, 2011 WL 2020809
United States Court of Federal Claims·Decided May 24, 2011·No. No. 10-580 L·Published·Cited by 4 cases

Opinion

OPINION AND ORDER

HEWITT, Chief Judge.

Before the court are Pacific Coast Federation of Fishermen’s Associations and Natural Resources Defense Council’s Motion to Intervene as Defendants (Motion to Intervene or Mot.), filed March 8, 2011, Docket Number (Dkt. No.) 15; Memorandum in Support of Pacific Coast Federation of Fishermen’s Associations and Natural Resources Defense Council’s Motion to Intervene as Defendants (Memorandum or Mem.), filed March 8, 2011, Dkt. No. 16; Declaration of Glen H. Spain in Support of Pacific Coast Federation of Fishermen’s Associations and Natural Resources Defense Council’s Motion to Intervene as Defendants (Spain Deck), filed March 8, 2011, Dkt. No. 17; Declaration of Linda Lopez in Support of Pacific Coast Federation of Fishermen’s Associations and Natural Resources Defense Council’s Motion to Intervene as Defendants, filed March 8, 2011 (Lopez Deck), Dkt. No. 18; Declaration of Monty Schmitt in Support of Pacific Coast Federation of Fishermen’s Associations and Natural Resources Defense Council’s Motion to Intervene as Defendants (Schmitt Deck), filed March 8, 2011, Dkt. No. 19; Plaintiffs’ Opposition to the PCFFA and NRDC’s Motion to Intervene as Defendants (plaintiffs’ Opposition or Pis.’ Opp’n), filed March 22, 2011, Dkt. No. 22; and Reply in Support of Motion to Intervene as Defendants of Pacific Coast Federation of Fishermen’s Associations and Natural Resources Defense Council (Reply), filed April 1, 2011, Dkt. No. 23. Also before the court is plaintiffs’ Complaint for Just Compensation (Complaint or Compl.), filed August 26, 2010, Dkt. No. I.1

Pursuant to Rule 24(a) of the Rules of the United States Court of Federal Claims (RCFC), Pacific Coast Federation of Fishermen’s Associations (PCFFA) and Natural Resources Defense Council (NRDC) (collectively, the applicants) move to intervene as of [510] right as defendants. Mot. 1. Pacific Coast Federation of Fishermen’s Associations “is the largest trade organization of commercial fishermen on the West Coast,” Mem. 2 (citing Spain Decl. ¶ 4), and represents “nearly 1,200 small and mid-sized commercial fishing boat owners and operators, most of whom derive all or part of their income from the harvesting of Pacific salmon,” Mem. 3 (citing Spain Decl. ¶4). The Natural Resources Defense Council is “a national nonprofit organization” with more than 70,000 members living in California, Mem. 3 (citing Lopez Decl. ¶ 3), and has worked “to restore fish and wildlife habitat, floodplains, and water quality in the Central Valley” of California, Mem. 3 (citing Schmitt Decl. ¶ 3).

According to the applicants, “The defendant takes no position on PCFFA and NRDC’s intervention,” Mem. 2, and defendant has filed no brief regarding the applicants’ Motion. Plaintiffs oppose the applicants’ Motion. See Pis.’ Opp’n passim. For the following reasons, the applicants’ Motion to Intervene is DENIED.

I. Background

“The San Joaquin River [ (River) ] is the ‘main artery1 of California’s second-largest river system.” Mem. 4 (quoting Natural Res. Def. Council v. Patterson (Patterson), 333 F.Supp.2d 906, 908 (E.D.Cal.2004)); Compl. ¶4. In the early 1940s, the United States Bureau of Reclamation (Bureau) built the Friant Dam (Dam) across the upper San Joaquin River, together with an adjacent, upstream storage reservoir and irrigation canals, in order to divert water from the River to areas of semi-arid farmland that had previously been short of or entirely without water. Compl. ¶¶ 6-7; see Mem. 4. “As a result, the Friant Dam diverted virtually all of the San Joaquin River’s natural flow to irrigation purposes and approximately 60 to 100 miles of the San Joaquin River’s old original riverbed channel has lain continuously dry for approximately the last 63 years_” Compl. ¶ 7; Mem. 4 (stating that “for a half century, sixty miles of the River lay ‘continuously dry’ in most years” (quoting Patterson, 333 F.Supp.2d at 910)). “[T]he Dam’s operation ‘diminished the area available for fish, increased the temperature of the water that is available, reduced the ability of the River to assimilate agricultural runoff and other pollutants, and substantially degraded riparian vegetation.’ ” Mem. 4-5 (quoting Patterson, 333 F.Supp.2d at 911). In addition, the chinook salmon, which had used the River for their annual migrations, “were ‘extirpated from the length of the River.’ ” Mem. 4 (quoting Patterson, 333 F.Supp.2d at 910); Compl. ¶ 14.

In 1988 NRDC, PCFFA and others sued the Bureau and other federal agencies claiming “violations of state and federal law, including California Fish and Game Code section 5937, a law predating the Dam’s construction that requires the owner of any dam to ‘allow sufficient water to pass over, around or through the dam [and] to keep in good condition any fish that may ... exist below the dam[,]’ section 8 of the Reclamation Act of 1902, 43 U.S.C. § 383, which makes Fish and Game Code section 5937 applicable to the federal government[,] and the Endangered Species Act.” Mem. 5 (quoting Act of May 24, 1915, ch. 491, § 1, 1915 Cal. Stat. 820) (citing Patterson, 333 F.Supp.2d at 913-14). After a pair of rulings in 2004 and 2005 by the United States District Court for the Eastern District of California finding violations of state and federal law by the Bureau, Mem. 6 (citing Patterson, 333 F.Supp.2d at 925; Natural Res. Def. Council v. Patterson, No. CIV S-88-1658 (E.D.Cal. July 28, 2005), ECF No. 1147), on September 13, 2006 the parties entered into a settlement agreement (Settlement), conditional on Congress’ passage of authorizing legislation, to restore water flows for salmon in the San Joaquin River below the Friant Dam, Mem. 6 (citing Schmitt Decl. Ex. A (Notice of Lodgment of Stipulation of Settlement); Natural Res. Def. Council v. Rodgers, No. CIV S-88-1658, 2006 WL 4589446 (E.D.Cal. Oct. 23, 2006), ECF No. 1377); Compl. ¶ 16. The Settlement contains provisions for structural improvements to the San Joaquin River channel, the reintroduction of water to the San Joaquin River channel and the reintroduction of chinook salmon to the River. Compl. ¶ 18; Mem. 7 (citations omitted).

[511] As contemplated by the Settlement, Congress enacted and on March 30, 2009 President Barack Obama signed the San Joaquin River Restoration Settlement Act (Settlement Act or Act), Pub.L. No. 111-11, §§ 10001-10011 (2009), which authorizes and directs the Secretary of the Interior (the Secretary) to implement the terms and conditions of the Settlement, including modification of the operations of the Friant Dam to provide restoration flows of water into the San Joaquin River, Mem. 6 (citing, inter alia, Pub.L. No. 111-11, § 10004(a)); Compl. ¶ 17 (citing Pub.L. No. 111-11, § 10004(a)). “Both the Settlement and the Settlement Act grant the Secretary some discretion in how the River will be restored, including some discretion to reduce the amount of water released for fish.” Mem. 8.

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Wolfsen Land & Cattle Co. v. United States, 98 Fed. Cl. 507, 2011 U.S. Claims LEXIS 887, 2011 WL 2020809 (uscfc 2011).

98 Fed. Cl. 507 (Wolfsen Land & Cattle Co. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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