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Hetch Hetchy Opinion

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Hetch Hetchy Opinion Filed 7/9/18 Restore Hetch Hetchy v. City and County of San Francisco CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT RESTORE HETCH HETCHY, F074107 Petitioner and Appellant, (Super. Ct. No. CV59426) v. CITY AND COUNTY OF SAN FRANCISCO OPINION et al., Respondents; MODESTO IRRIGATION DISTRICT et al., Real Parties in Interest and Respondents. APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge. Lozeau Drury, Michael R. Lozeau, Richard T. Drury, Meredith S. Wilensky; Richard M. Frank for Petitioner and Appellant. Rossmann and Moore, Antonio Rossmann and Roger B. Moore for Huey Johnson, Daniel Lungren, John Van De Kamp, Douglas Wheeler and Earth Island Institute; Olson Hagel & Fishburn, Deborah B. Caplan and Richard C. Miadich for Barbara Griffin and Robert Binnewies; Deborah A. Sivas, Alicia E. Thesing and Isaac Cheng for Environmental Law Clinic as Amici Curiae on behalf of Petitioner and Appellant Dennis J. Herrera, City Attorney, Yvonne R. Meré, Joshua D. Milstein, Matthew D. Goldberg, Mollie M. Lee and Aileen M. McGrath, Deputy City Attorneys, for Respondents. Hanson Bridgett, Kimon Manolius, Allison C. Schutte, Nathan A. Metcalf and Adam W. Hofmann for Real Party in Interest and Respondent Bay Area Water Supply and Conservation Agency. Griffith & Masuda, Roger K. Masuda and David L. Hobbs for Real Party in Interest and Respondent Turlock Irrigation District. O’Laughlin & Paris, William C. Paris, III and Timothy J. Wasiewski for Real Party in Interest and Respondent Modesto Irrigation District. Stanly T. Yamamoto, District Counsel and Erick D. Soderlund, Assistant District Counsel for Santa Clara Valley Water District; Bartkiewicz, Kronick & Shanahan and Ryan S. Bezerra for Association of California Water Agencies and Northern California Water Association as Amicus Curiae on behalf of Respondents. Xavier Becerra, Attorney General, Robert W. Byrne, Assistant Attorney General, Tracy L. Winsor, Daniel M. Fuchs and Jeffrey P. Reusch, Deputy Attorneys General, for State Water Resources Control Board as Amicus Curiae. -ooOoo- Appellant Restore Hetch Hetchy appeals from the trial court’s judgment sustaining appellees’ City and County of San Francisco, San Francisco Public Utilities Commission, Bay Area Water Supply and Conservation Agency, Turlock Irrigation District, and Modesto Irrigation District, demurrer. Restore Hetch Hetchy petitioned the trial court for a writ of mandate to declare the Hetch Hetchy Reservoir and O’Shaughnessy Dam unreasonable methods of diverting water under article X, section 2 of the California 2. Constitution (hereafter, art. X, § 2). The trial court concluded Restore Hetch Hetchy’s position was preempted by the Raker Act, (See Pub.L. No. 63–41 (Dec. 19, 1913) 38 Stat. 242; hereafter, “Raker Act”) federal legislation granting certain rights-of-way to San Francisco subject to various conditions, and that actions brought under article X, section 2 are subject to a four-year statute of limitations that began running when article X, section 2 became effective in 1928. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND The Hetch Hetchy Valley is a long, narrow, and granite-cliff bordered valley through which a portion of the Tuolumne River flows. It is in the northwest portion of the federally controlled Yosemite National Park. Prior to the 1920’s, Hetch Hetchy Valley was a well-known and beloved natural resource with views said to rival those of Yosemite Valley itself. As early as 1901, however, the valley was also an area of contention, with San Francisco seeking to use the valley for long-term water storage and power generation needs. In 1913, after several earlier attempts by San Francisco to create a dam in the Hetch Hetchy Valley had stalled, the House of Representatives took up the issue through what became known as the Raker Act. Despite strong support for preserving the Hetch Hetchy Valley, the Raker Act ultimately granted San Francisco “the right to construct a number of dams, powerhouses, pipelines and related facilities in the Tuolumne watershed in order to make use of their water rights in the area,” including within the Hetch Hetchy Valley. As a result of this legislation, the O’Shaughnessy Dam was completed in 1923, flooding the Hetch Hetchy Valley to create the Hetch Hetchy Reservoir. The modern water system, of which the Hetch Hetchy Reservoir is a part, now serves roughly 2.6 million residents and businesses in the Bay Area. Approximately 25 percent of the water stored in that system is retained by the O’Shaughnessy Dam. 3. Restore Hetch Hetchy’s petition alleges that the use of the O’Shaughnessy Dam to divert water into the Hetch Hetchy Reservoir is an unreasonable method of diversion under article X, section 2.1 According to the petition, diverting water at the O’Shaughnessy Dam is unreasonable for several reasons. These include assertions related to other uses of the valley, such as aesthetic and scenic beneficial uses that are being destroyed by the flooding of the valley and access restrictions precluding beneficial recreational uses such as hiking, camping, swimming, boating, and fishing. They also include assertions related to the economic and societal benefits of the dam that claim the dam is unnecessary in light of later water diversion projects such as the Don Pedro Reservoir and that the economic value of a pristine Hetch Hetchy Valley greatly exceeds the costs of returning the valley to its natural state while maintaining San Francisco’s water reservoirs. The trial court sustained the demurrer filed in this case on two grounds. In the first, the court concluded appellant’s application of article X, section 2, asserting that the O’Shaughnessy Dam and Hetch Hetchy Reservoir constituted an unreasonable diversion of water under modern considerations, was preempted by the Raker Act. In the second, the court determined that actions for relief under article X, section 2 are subject to the state’s catch-all four-year statute of limitations and that appellant’s allegations showed their claim arose at approximately the time the O’Shaughnessy Dam was completed. When Restore Hetch Hetchy opted not to file an amended petition, the trial court entered a judgment of dismissal. This appeal timely followed. 1 The trial court noted and the parties do not dispute on appeal that appellant’s petition is limited to the assertion there is an unreasonable diversion of water and does not allege waste, unreasonable use, unreasonable method of use, or any other potential claims under article X, section 2. 4. DISCUSSION Restore Hetch Hetchy raises two issues.2 First, it contends there is no conflict between article X, section 2 and the Raker Act and, therefore, federal preemption does not apply. Second, it contends claims brought under article X, section 2 are not subject to any statute of limitations. In resolving this matter, we consider only the first contention.3 Upon San Francisco’s demurrer, the trial court concluded that the claims brought by Restore Hetch Hetchy were preempted by the Raker Act. Restore Hetch Hetchy argues this determination was improper on the general contention that section 11 of the Raker Act, known colloquially as a savings clause, precludes any finding that the Raker Act conflicts with California’s water laws. We do not agree with this position. Congress’s relevant intent, as readily discerned from the text of the Raker Act, was to flood the Hetch Hetchy Valley through the permanent creation of a dam on federal lands. Although a broad savings clause was then utilized to preserve the applicability of California’s water laws, relevant principles of the preemption analysis confirm that broad preemption protections for state laws may not eviscerate those components of a law purposefully enacted by Congress. In this instance, Congress specifically ordered the creation and operation of a dam, intending for the continued operation of this structure. Accordingly, as detailed below, the savings clause contained in the Raker Act does not preclude a finding of conflict between the asserted claims of this case and the express 2 We recognize and thank the various amici that filed briefs in this matter. In support of Restore Hetch Hetchy was Stanford’s Environmental Law Clinic on behalf of various environmental law professors; Huey Johnson, Daniel Lungren, John Van De Kamp, Douglas Wheeler and the Earth Island Institute; and Barbara Griffin and Robert Binnewies. In support of respondents were the Santa Clara Water District; and the Association of California Water Agencies and Northern California Water Association. In support of neither party was the State Water Resources Control Board. 3 Restore Hetch Hetchy has filed two requests for judicial notice. Respondents have filed one request for judicial notice. Neither side has filed objections. We therefore grant each of the requested motions but note we only rely on such materials if directly cited herein. 5. determination by Congress to divert water on a permanent basis at the site of the O’Shaughnessy Dam. Standard of Review “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558.) “When a demurrer is sustained, appellate courts conduct a de novo review to determine whether the pleading alleges facts sufficient to state a cause of action under any possible legal theory.” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1242.) “When conducting this independent review, appellate courts ‘treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law.’ ” (Esparza v.
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