October 1, 2009
By Alex Breitler
Record Staff Writer
October 01, 2009 12:00 AM
STOCKTON – An appeals court ruled Wednesday that the federal government is liable for water promised but rarely delivered in full to the Stockton area, a key victory for local water officials after a 16-year legal fight.
In the 1990s a $65 million tunnel was built to take that promised water from the Stanislaus River and send it to Stockton. That debt is still being paid off.
Despite the investment, in some years no water was delivered by the government.
“I call this vindication,” said Jennifer Spaletta, an attorney for the Stockton East Water District. “The people have been paying for this project based on the government’s promise for well over a decade. … The people of San Joaquin County finally received justice.”
A spokesman for the U.S. Bureau of Reclamation in Sacramento had not seen the 45-page decision Wednesday afternoon and declined to comment.
This was not the only good news Wednesday for Stockton East, which delivers water to the city and to farmers on the county’s east side.
The Obama administration announced that rules to protect smelt, salmon and other threatened species in the Delta may be reviewed by the National Academy of Sciences to determine if there are other ways to help the fish without further harming water users.
The rules for salmon – known as a biological opinion – are expected to severely restrict how much water Stockton East can take from the Stanislaus River in the future. Critics have begged for further scientific review, to which the Department of Interior agreed.
“It’s all good news,” Stockton East General Manager Kevin Kauffman said Wednesday. “Even if we win this case and get compensated for damages, and work out a better relationship with (Bureau of Reclamation) for the future, the biological opinion would still damage us.”
Stockton East and neighboring Central San Joaquin Water District inked contracts with the feds in 1983. It took more than a decade to finish the Goodwin Tunnel to divert the water, and, by that time, new environmental restrictions prompted the U.S. Bureau of Reclamation to clamp down on water deliveries.
Government attorneys had argued that the risk of a shortage fell on the shoulders of the districts. And a lower court found that while the contracts had indeed been breached, the circumstances were beyond the government’s control.
Wednesday’s 2-1 decision by the U.S. Court of Appeals for the Federal Circuit says that the government is responsible. The phrase “beyond control” in the contracts might apply to drought, earthquakes or the failure of a dam, perhaps, but not changes in policy or law, the court ruled.
Seven of the years in question were relatively wet; five were dry.
“We were right,” said former Stockton East chief Ed Steffani. “Everything decent about this country argued that we were right. How the heck can the government sign a contract with you and then change the rules and say, ‘Too bad’?”
Stockton East attorneys said in a statement that the significance of the decision goes beyond district boundaries, calling it a “rare occurrence of a court holding the government accountable for reducing water deliveries to contractors for environmental purposes.”
The case will be remanded to a trial judge for consideration of damages. It could also be appealed to the U.S. Supreme Court, Spaletta said.
The original lawsuit sought $500 million, but Spaletta said Wednesday it’s unclear what actual damages might be awarded.
Contact reporter Alex Breitler at (209) 546-8295 or email@example.com.