ELR Citation: ELR 20429
No(s). s. 81-4189X, -4309X (9th Cir. Dec 20, 1982)

The Ninth Circuit partially reverses the district court and upholds all conditions imposed by California on the federal government's appropriation of water for the New Melones Dam project. Relying on the Supreme Court's interpretation in an earlier stage of this litigation, 8 ELR 20593, of the 1902 Reclamation Act, the court holds that the United States is bound by state water law restrictions unless they clearly conflict with the congressional scheme for the New Melones Dam found in the 1962 Flood Control Act. The court then upholds California's temporary denial of Stanislaus River water for irrigation and other consumptive uses absent a showing that the benefits of such uses outweigh any resulting damage to fish, wildlife, and recreation resources. This condition is consistent with California's beneficial use standard and §8 of the 1902 Reclamation Act. The court upholds California's restrictions on the appropriation of water solely for power generation. Water appropriated for other purposes may be used for power generation, if necessary, and if temporary deferment of full impoundment will not affect the project's feasibility. The court rules that conditions requiring the project to serve California's water quality goals and abide by the county of origin preference rule are consistent with the Flood Control Act. It rules that the federal government has not shown that any of the other conditions are invalid on their face, but the court noted that some of the conditions reserving powers to California could be invalidly applied, giving rise to a future cause of action.

Counsel for Appellants
Roderick Walston, Deputy Attorney General
350 McAllister St., Suite 6000, San Francisco CA 94102
(415) 557-2544

Counsel for Appellee
Francis Goldsberry, Ass't U.S. Attorney
650 Capitol Mall, Suite 2058, Sacramento CA 95814
(916) 440-2331

Clark F. Ide
McCormick, Ide & Kabot
P.O. Box 1029, Visalia CA 93277
(209) 734-6729

Before KENNEDY, PREGERSON, and REINHARDT, Circuit Judges.