LINDSAY – The U.S. Supreme Court has ruled water stored behind Friant Dam near Fresno is owned by the U.S. government, and not by the farms and cities that rely on that water along the east side of the Valley.
The Dec. 15 decision ended a 10-year legal battle between Lindsay-based Friant Water Authority (FWA), which represents water right holders along the Friant Kern Canal on the Valley’s east side, the city of Fresno, one of the largest recipients of the canal’s surface water, and the U.S. Bureau of Reclamation (USBR), which controls the flow of San Joaquin River water stored behind Friant Dam near Fresno.
FWA and Fresno filed suit in 2016 over a federal government decision to withhold San Joaquin River water typically sent 150 miles south down the Friant Kern Canal in 2014-15. USBR made the decision to severely limit their allocation that year due to extreme statewide drought conditions.
Friant claimed their 15,000 growers own the water stored behind the dam. Lawyers for Friant alleged in an appeal of lower federal court rulings that FWA should be compensated for the loss of the water because it amounted to a “taking” of their property and led to the subsidence issues, which required hundreds of millions of dollars to restore flows to the southern leg of the canal. They sought $350 million.
The high court “denied” FWA’s claim without comment sustaining USBR and the lower court’s position that the Bureau of Reclamation, which orchestrated the Central Valley Project, owns the water.
Ironically, it was President Trump’s Solicitor General, John Sauer, who argued against Friant and contrary to the expectation that the new Trump administration, along with the GOP dominated Supreme Court, would side with them in this dispute. Sauer was the same Trump lawyer who defended the president when he was asked, “Could a president who ordered SEAL Team 6 to assassinate a political rival (and) who was not impeached, would he be subject to criminal prosecution?” No, said Sauer.
Of course Trump has been a vocal critic of restrictive water regulations that would limit movement of water from north to south in California. Then there is the fact that Central Valley farmers are big Trump supporters.
But surprisingly, Sauer’s legal argument was that “The United States originally obtained rights to use water from the San Joaquin River by entering into a series of contracts from 1939 to 1968 with various entities that previously held the water rights. In 1939, Reclamation entered into purchase agreements with water-rights holders on the San Joaquin River. Those entities are the predecessors in interest of the ‘Exchange Contractors,’ which are (along with the United States) respondents in this case, under an agreement known as the Exchange Contract.”
The Exchange Contract makes San Joaquin River water available to the United States, conditioned on the United States’ continued delivery to the Exchange Contractors of “substitute water” pursuant to specified conditions that vary between drought and non-drought years.”
So based on this, it might be more reasonable to argue that the Exchange Contactors own the water, not Friant Water Authority, which has only a conditional contract to get water.
Zero Allocation
While it is true that Friant water contractors got a zero allocation in 2014 that resulted in millions of lost revenue, the government has been sending Friant water down the 150-mile Friant Kern Canal annually for about 75 years, with an average of more than 1 million acre feet reaching communities and farms in the South Valley annually.
Despite Friant’s assertion that the legal case amounted to a David vs Goliath battle – a face-off pitting family farmers versus big government – the Exchange Contractors are farmers too and have “pre-existing rights” to the San Joaquin River water.
These Los Banos area farmers sided with the government in this landmark case. The San Joaquin River watershed is their backyard. In terms of their agreement, they gave the water right to the federal government “in exchange” for a contract to receive an alternate supply of CVP water delivered from north of the Delta. The lower court has ruled that “At all times the Exchange Contractors have a superior claim to CVP water than do the Friant Contractors.”
Sauer argued that the Exchange Contract “necessarily trumped the subordinated contractual rights of the Friant Contractors,” and, because the Friant Contract “immunizes the government from a breach of contract claim,” the Bureau’s response to the 2014 ‘severe drought’ was not “arbitrary, capricious, or unreasonable.”
