In Re: Equity 30 v.

Filing 295

ORDER signed by Senior Judge Lawrence K. Karlton on 2/11/09 ORDERING that pltf's motion to amend the Angle decree is GRANTED, and dft's motion to vacate the decree is DENIED. IT IS FURTHER ORDERED that the pltf's motion to establish a process for any future annexations and changes in the place of use of water rights under the Angle decree is GRANTED as stated in this order. (Kastilahn, A)

1 2 3 4 5 6 7 8 9 THE UNITED STATES OF AMERICA, 10 NO. CIV. S-80-583 LKK 11 12 13 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 / This case began over ninety years ago. In 1918, the United v. ORDER H.C. ANGLE, et al., Plaintiff, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

States commenced a water rights adjudication to settle the water rights to the flows of Stony Creek and its tributaries in Northern California. As part of the adjudication process, the United States named as defendants all then-existing claimants to the subject water, several hundred parties in all. The adjudication culminated in the Angle Decree on January 13, 1930, which determined the rights of all parties. Pursuant to that decree, the Bureau of Reclamation receives water which it uses to operate the Orland Project, which in turn provides water that is used in irrigating agricultural lands. 1 The

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Bureau, now standing as plaintiff to the Angle decree, seeks to modify the "place of use" provisions in the decree, to allow Orland Project water to be used to irrigate somewhat different lands. One successor in interest to a party to the decree, defendant Michael J. Barkley, has filed an opposition to the proposed amendment. In addition, defendant Barkley has filed a counter-

motion that argues that the entire decree is invalid, and in the alternative, that the decree should be substantially modified because of changed circumstances. For the reasons stated below,

the court grants plaintiff's motion to amend the decree, and denies defendant's motion. I. BACKGROUND1 A. The Angle Decree The Reclamation Act of 1902, 43 U.S.C. § 391 et seq., empowers the federal government to acquire water rights for the reclamation and irrigation of land. Pursuant to this authority, the United

States Bureau of Reclamation sought to exercise this authority and acquire water from Stony Creek to serve the Orland Reclamation Project. In an action commenced in 1918, the United States, as

plaintiff, brought suit against several hundred defendants within the Stony Creek watershed, seeking an adjudication of all parties' respective water rights. The United States District Court, sitting

For further background, see United States v. Angle, 760 F.Supp. 1366 (E.D. Cal. 1991), rev'd by Wackerman Dairy, Inc. v. Wilson, 7 F.3d 891 (9th Cir. 1993). 2

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

in equity, issued its decision in 1930, in what is commonly referred to as the Angle Decree. Pursuant to this decree, the

Bureau of Reclamation owns specific rights to water which it uses in operating the Orland Project, serving the members of the Orland Unit Water Users Association. The decree sets a variety of limits

on how this and other water can be used, including the which lands may be irrigated (the Project Lands Schedule). B. The Proposed Modifications The Bureau of Reclamation, still appearing as plaintiff in this suit, now seeks to modify the Project Land Schedule.

According to plaintiff, current irrigation practices violate the Project Lands Schedule. Pl.'s Mem. Supp. Mot., 3, 7. This is

because some land initially included in the schedule has proven to be unproductive or unirrigable, and the Bureau has allowed water to be moved to more productive land. The Bureau therefore seeks

to modify the decree to legitimize current practice. The proposed modifications would increase the total acreage of lands eligible for irrigation from 21,000 acres to approximately 22,633 acres. However, there would be no change in the number of

acres actually irrigated in any given year, or in the amount of water actually used. Additionally, the Bureau of Reclamation proposes incorporating into the decree a modified process for future modification of the decree's project land schedule. The propose amendments have the support of the Water Master designated to oversee the decree and the Orland Unit Water Users 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Association. C. Defendant Barkley's Allegations One defendant to the decree has filed objections to the proposed amendment, along with a cross motion that seeks to vacate the entire decree. This defendant, Michael Barkley ("defendant"), owns property in the Stony Creek watershed upstream from the Orland Project, and has inherited a water right provided in the original decree. The impetus by behind defendant's himself, motion is clear. Stony As Creek

exemplified

defendant

many

upstream

property owners believe that the Angle consent decree was an injustice, and that "the Government stole our water." Opp'n, 2. Defendant contends that in the original Amended Angle

litigation, the United States sought to strip water rights from all persons possibly having a claim to upstream Stony Creek water regardless of whether or not Orland Project waters flowed past their lands. Over the next 12 years Reclamation settled out the few defendants with enough resources to defend themselves, and then reduced all possible claims through aggressive litigation tactics until only a handful of upstream users remained . . . . Many defendants, cowed by Reclamation's aggression[,] walked away from their rightful claims. Others, even after their rights were acknowledged, walked away from their entitlements rather than try to pay the water master fees . . . levied during the Depression. Amended Opp'n, 3. Defendant alleges that insult was added to this

injury in that, although the decree allocated limited rights to upstream users, these users must watch an average of 23,000 acre4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

feet of water flow through their lands annually. Defendant's initial opposition memorandum

Id. at 5. recounted this

history, as well as subsequent "oppressive" acts taken pursuant to the decree, but it contained little in the way of citation to evidence and otherwise showed signs of being hastily prepared. The memorandum itself acknowledged these faults, and requested an opportunity to file an amended opposition. The court granted

defendant an additional month to file an amended opposition. Defendant availed himself of this opportunity, but again concedes that the opposition provides little in the way of documentation. For example, defendant has provided no evidence supporting the above-recounted retelling of the Angle adjudication. II. STANDARD A. Standard for a Motion to Amend the Decree The 1930 Angle Decree provides the applicable standard of review to determine whether the Decree should be amended with regard to the elements of the water rights determined by the court, including changes in the place of use of the water. provides that: any of the parties to whom the rights to water have been decreed herein shall be entitled, in accordance with applicable laws and legal principles, to change the point of diversion and the places, means, manner or purpose of the use of the water to which they are so entitled or for any part thereof, so far as they may do so without injury to the rights of the other parties as the same are defined herein. Angle Decree at 175. As long as a party with decreed water rights 5 The Decree

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

can demonstrate that the proposed change is in accordance with applicable laws, then the only consideration for the court is whether the change can be accomplished "without injury to the rights of other parties" as defined in the decree. Absent proof of injury, a party is entitled to change the place of use of its water rights. B. Standard for A Motion Seeking Relief from a Judgment, Order or Proceeding Defendant admits that he is unclear as to how his countermotion should be characterized. He suggests that it might be These provisions Instead, they

brought under Fed. R. Civ. P. 60(d)(1) or (3).

do not themselves grant any authority to the court.

note that Rule 60 does not limit a court's power to "entertain an independent action to relieve a party from a judgment" or to "set aside a judgment for fraud on the court." Rule 60(d)(1), (d)(3). Defendant has not filed an independent action, nor has he alleged fraud on the court. Thus, defendant's counter-motion is instead best characterized as a motion under Fed. R. Civ. P. 60(b),2 which permits a court to "relieve a party or its legal representative from a final judgment, order or proceeding." Relief may be warranted by, inter alia,

fraud, misrepresentation, or misconduct by an opposing party, Rule

Although Rule 60 was rewritten in 2007, the advisory committee notes indicate that none of the amendments since 1948 have changed the substance of the rule, so the guidance provided by prior cases interpreting the rule still applies. 6

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

60(b)(3),3 when applying the judgment prospectively is no longer equitable, 60(b)(5), or for "any other reason that justifies relief," 60(b)(6). the Rule 60 motion. The burden of proof is on the party bringing Rufo v. Inmates of Suffolk County Jail, 502

U.S. 367, 383 (1992) (the "party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree."), United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 935 (8th Cir. 2006)(party bringing a Rule 60(b)(3) motion must provide clear and convincing evidence of fraud), Mountain Gold Properties v. City of Lathrup Village, 874 F. Supp. 769, 772 (E.D. Mich. 1995) (denying request to modify consent decree because Rule 60(b)(5) movant failed to provide evidence supporting his claims). III. ANALYSIS A. Counter-motion The court begins with defendant's counter-motion, because if the decree is vacated, the motion to amend will become moot. As

noted above, defendant challenges the legitimacy of the original decree, and argues in the alternative that circumstances arising since the decree was adopted warrant vacating or substantially modifying the decree. At the outset, the court notes that defendant has standing to bring this counter-motion. Defendant owns a share in a water right

However, as discussed below, a Rule 60(b)(3) motion must be brought within one year of the entry of judgment. Fed. R. Civ. P. 60(c)(1). 7

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

provided by the decree, as well as property in upstream Stony Creek that would potentially receive additional riparian water rights if the decree was vacated. 134). See Sur-reply at 4 (citing Decree at 133,

These interests are sufficient to give rise to case or Although the decree itself may prohibit defendant's

controversy.

predecessors-in-interest, and therefore defendant himself, from challenging aspects of the decree, this prohibition goes only to the merits of defendant's counter-motion.4 2. Defendant's Challenge to the Original Decree argues that the original decree misapplied

Defendant

applicable California law, contained numerous factual errors, was marred by an unjust and coercive process that precluded meaningful participation by many defendants, and was otherwise inequitable. The court does not address the merits of these claims, or whether defendant has provided evidence to support them, because the time for raising these arguments has long passed. In

discussing a similar adjudication of water rights, the Ninth Circuit held that the resulting decree "is res judicata as to all parties represented in the litigation and their privy; accordingly such parties cannot seek additional rights to the [adjudicated] waters." United States v. Orr Water Ditch Co., 914 F.2d 1302, 1304 (9th Cir. 1990) (citing Nevada v. United States, 463 U.S. 110 The court further notes that defendant has alleged that he will suffer injury from the amendment in particular, in that the amendment may allow Orland Project water users to use water that could otherwise revert to defendant, and in that the amendment validates the continued existence of the decree. The merits of these allegations are discussed in the opinion. 8
4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

(1983)).

Here, res judicata is not directly applicable.

While

that doctrine bars claims that could have been adjudicated in an earlier, separate suit, in this case, defendant's motion is brought in the same suit that produced the original decree.5 463 U.S. at 113 (plaintiff brought a separate C.f. Nevada, suit seeking

additional rights). Rule 60 nonetheless encompasses similar principles.

Defendant's primary allegations concern misconduct on the part of the United States before and during the Stony Creek adjudication. Rule 60(b)(3) permits a party to seek relief from a judgment, order or proceeding on these grounds, however, the motion must be brought no more than a year after the entry of such order. P. 60(c)(2). Fed. R. Civ.

Motions brought under Rule 60(b)(5) and 60(b)(6) are

not subject to this one-year limit, but "must be made within a reasonable time." Defendant has failed to provide arguments or evidence that would support the astounding conclusion that a delay of seventyeight years was reasonable. Defendant's separate allegations of

changed circumstances--for example, changes the population and water use in the relevant counties, or identification of various fresh-water aquifers--do not justify the delay in bringing the claim that the decree was improper from the outset. Other factors

cited by defendant, such as the development of photocopiers, the Defendant has argued that res judicata might also prohibit plaintiff's attempt to amend the decree. Res judicata in no way limits plaintiff's ability to use the amendment procedure provided by the decree itself. 9
5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

advent of the internet as a tool for research, and the court's adoption of CM/ECF, have reduced the cost of filing this motion (and, the court hopes, furthered the inexpensive and just

resolution of controversies in general), but this reduction in cost does not itself justify re-examining old cases. Surreply, 22.

Finally, defendant argues that these arguments could only be raised in an opposition to another party's motion to modify the decree, because Article XVII of the degree forbids defendant from challenging the decree. On this, defendant is half correct.

Article XVII "forever enjoined and restrained" parties to the decree, their successors and assigns "from asserting or claiming . . . any right, title or interest in or to the waters of Stony Creek or its tributaries . . . except the rights specified . . . by this decree."6 Decree, 177-78. Because defendant argues that

the decree wrongfully deprived his predecessors of their water rights, his claim violates this prohibition. This prohibition is Therefore,

not relaxed or waived by plaintiff's motion to amend.

rather than providing a justification for defendant's delay, Article XVII provides an independent ground for denying defendant's counter-motion. Therefore, to the extend that defendant's counter-motion argues that the decree was invalid when it was adopted, the counter-motion must be denied.

Plaintiffs, however, seek to invoke the amendment process provided by the decree itself, and thereby do not violate Article XVII. 10

6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

3.

Whether Changed Circumstances Undermine the Decree

The argument that changed circumstances have rendered the decree inequitable presents a different set of issues. Here, the

running of a "reasonable time" must be measured from the onset of the changed circumstances. obviously time barred.7 As such, defendant's argument is not However, the changed circumstances

argument must fail on the merits. The first changed circumstance identified by defendant is the availability of alternate water sources and infrastructure.

Defendant is apparently under the impression that California enjoys a surplus of water.8 Based on this premise, defendant argues that

because other sources can meet the Orland Project's need for water, allocating Stony Creek water to the Orland Project is no longer equitable. Because defendant has not provided evidence that such

a surplus exists, the court does not express an opinion as to what consequences would follow from such a surplus. The second changed circumstance is the series of allegedly "oppressive" events performed in enforcement of the decree. As

plaintiff notes, defendant has not provided any evidence of six the

To determine whether these claims were time barred, the court would need to determine when each of the changes in circumstance became relevant, and determine whether the period between that time and the present was reasonable. In this belief, defendant may be alone. See, e.g., Matt Weiser, Water Watchers Cast A Wary Eye, Sacramento Bee, February 2, 2009, at page A1 (above the fold). 11
8

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

alleged events, most of which occurred prior to 1950.9

Each

particular event is described in so little detail that the court cannot even evaluate the consequences that would follow from an assumption that the allegations are true. Similarly, defendant has not supported his allegation that the decree has been only

selectively enforced.10

Accordingly, defendant has not shown

grounds for relief from the decree. B. Motion to Amend Having concluded that defendant's challenges to the decree itself fail, the court turns to plaintiff's motion to amend the decree. As stated above, this motion turns on whether there are The Orland Unit Water Users

harmful effects to other water users.

Association and the water master have stated that they do not believe any such harms will ensue. Defendant has identified only speculative and attenuated harms resulting from the proposed amendment. In essence, defendant

alleges that if the amendment is denied, the Orland Unit Water Users Association will be less likely to use their entire allotment of water, and that any surplus water will be likely to be made Defendant alleges events in 1931, 1932, 1933, 1947, 1985, and 1992. Amended Opp'n, 5-6. The court notes that plaintiff's present motion effectively concedes that users of Orland Project water are currently in violation of the decree--plaintiff seeks to amend the decree "to conform to current irrigation practices," rather than to permit a prospective change in said practices. Pl.'s Mem., 1. However, defendant has not identified any enforcement action since 1992 that could be juxtaposed with this present lenience. Moreover, defendant has not established that the just response to selective enforcement, if it were shown, would be to vacate the decree. 12
10 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

available for upstream users, pursuant to California's developing "local preference" laws, e.g., California Water Code Section 11460. Again, defendant has failed to meet his burden in supporting this argument. Although the region is undoubtedly changing, the

documents cited by defendant do not establish that these changes will result in reduced demand for irrigation water. As to the

second step in defendant's argument, a proposal to amend the decree is to be granted unless it would cause injury to water rights provided by the decree. Decree, 175. Defendant has not argued

that the decree establishes any reversionary or other water right for upstream users, and the proposed amendment would not impact defendant's water right under the decree. C. Concluding Remarks Defendant's opposition and counter-motion are premised on the belief that it would be unfair to allow the Bureau to change some parts of the decree without allowing defendant to argue that other parts should also be changed. The court has addressed this However, this point bears

argument in the discussion above. repeating.

Plaintiff and defendant seek strikingly different

things. Plaintiff seeks to make use of the decree's own procedures for amendment. Defendant, on the other hand, requests changes that cannot be made through this amendment procedure. As such, there

is no inconsistency in granting plaintiff's request for amendment while denying defendant's motion. Because the reasonable time for

such challenges has passed, this court lacks the power to address the merits of defendant's challenge to the original decree, and 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

plaintiff's amendment of the decree does not change that fact. IV. CONCLUSION For the reasons stated above, plaintiff's motion to amend the Angle decree is GRANTED, and defendant's motion to vacate the decree is DENIED. IT IS HEREBY ORDERED THAT the plaintiff's motion to amend the Angle Decree is GRANTED. To accomplish this result and ensure

consistency with the Angle Decree without injuring any other party, the Court finds that the following portion of Article VIII, ¶ (1) of the Angle Decree should be amended, with proposed additions to the existing Decree language in bold italic text and proposed deletions from Decree in strikeout text, as follows: The right, by reservation and appropriation, to divert 85,050 acre-feet of the waters of Stony Creek and its tributaries, during each irrigation season, from the natural flow in said creek at the South and North Diversion Dams of the Orland Project--as of the date of priority of October 10, 1906, and to the extent that such waters are available under said priority--at a rate of diversion not exceeding 279 cubic feet per second at any time during the season, for the reclamation and irrigation of the up to 21,000 acres of irrigable the gross lands of the Orland Project described in the Project Land Schedule as appended to this Article of the decree and made part hereof; that said schedule (with those of similar character in this decree), by a system of horizontal and vertical columns, sets down the legal subdivisions of the gross lands affected, and in the squares thus formed indicates in acreage figures the irrigable area of each quarter-quarter section (or 40acre tract) constituting the gross lands; subdivisions of the listed sections which are excluded from the schedule being denoted by squares containing no acreage figures;

14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Article VIII, ¶ (1) of the Angle Decree, as so modified to reflect these changes, henceforth shall read as follows: The right, by reservation and appropriation, to divert 85,050 acre-feet of the waters of Stony Creek and its tributaries, during each irrigation season, from the natural flow in said creek at the South and North Diversion Dams of the Orland Project--as of the date of priority of October 10, 1906, and to the extent that such waters are available under said priority--at a rate of diversion not exceeding 279 cubic feet per second at any time during the season, for the reclamation and irrigation of up to 21,000 acres of the gross lands of the Orland Project described in the Project Land Schedule as appended to this Article of the decree and made part hereof; that said schedule by a system of horizontal and vertical columns, sets down the legal subdivisions of the gross lands affected, and in the squares thus formed indicates in acreage figures of each quarterquarter section (or 40-acre tract) constituting the gross lands; subdivisions of the listed sections which are excluded from the schedule being denoted by squares containing no acreage figures; IT IS FURTHER ORDERED THAT the plaintiff's motion to establish a process for any future annexations and changes in the place of use of water rights under the Angle decree is GRANTED, as follows: Reclamation shall not issue additional or new Final Water Right Certificates for lands outside the Project Land Schedule, as set forth in the Decree, nor shall the agency approve any

additional or new water right applications for such lands, without first receiving the approval of this Court. In considering any

such matters, the parties are directed to comply with the following procedures: First, the party proposing the annexation shall prepare a 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

written request for annexation and submit that request to the Orland Unit Water Users' Association (OUWUA) for initial review. Second, OUWUA shall review any request for annexation and concur with the annexation if the property is serviceable from an existing or a modified Orland Project canal or lateral without hindering service to other Orland Project Lands and if providing water service to the property would not result in any water supply shortages to the lands already within the Project. Third, if the OUWUA Board of Directors determines that the proposed lands should be annexed, then OUWUA shall file an

application for a water rights certificate with Reclamation. Fourth, if Reclamation deems such application acceptable for processing, then OUWUA shall forward the request for annexation to the Water Master for the Water Master's independent review as to whether the proposed addition of lands to the place of use will injure the rights of other parties to the Angle Decree. Fifth, the Water Master shall document findings regarding no injury to other parties. If, upon completing an independent

review, the Water Master determines that the proposed addition will not injure the rights of other parties to the Angle Decree, the Water Master shall cause notice of the proposed change in the place of use to be filed with the court and promptly served via certified mail upon all of the parties listed on the court's service list for the Angle Decree. Sixth, any objections or protests to the proposed change in place of use then must be submitted to the Water Master within 60 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

days of the Water Master's filing of the notice with the court. If any such protest or objection is filed, then the United States would file a notice and motion with the Court to address the proposed change in place of use. Seventh, if no objection or protest were filed with 60 days, then the United States promptly would file with the Court a proposed order to amend the place of use as set forth in the notice, and the Court may approve the order without a further hearing. Such order would provide that the number of acres within

the Orland Project to which Orland Project water may be delivered in any given irrigation season, including the newly annexed lands, will remain capped at 21,000 acres, as prescribed in the Angle Decree. Finally, before Reclamation may consider issuing any

additional or new certificates (or approving any additional or new water right applications) for lands that would otherwise increase the total irrigated acreage for the Orland Project above the current limit of 21,000 acres, Reclamation first would be required to cancel existing certificates as necessary or practicable, within the agency's discretion, to remain within the 21,000-acre Angle Decree limitation. This ceiling on the total number of irrigated

acres would remain the responsibility of Reclamation to enforce through the regular duties of the Court-appointed Federal

Watermaster who administers the Angle Decree. IT IS SO ORDERED. DATED: February 11, 2009. 17