The National Audubon Society and other groups that sued in 1979 to block Los Angeles from piping water out of Mono Lake streams may finally take the city to trial, but only in a California court, a federal appeals panel ruled Thursday.
Environmental activists had preferred to fight Los Angeles in the federal courts, where the rules of law give judges more power to step into disputes involving natural resources. Thus the ruling was a crucial turn in the 10-year-old fight, as much for its effect on strategy as for clearing the way to a trial.
Los Angeles draws most of its municipal water from wells and streams in the Owens Valley and other alpine valleys on the eastern slope of the Sierra Nevada, the Northern California mountain range where much of the water used in the state’s arid southern half originates.
Diversion of Water
The Mono Lake controversy involves the Los Angeles Department of Water and Power’s diversion of fresh water from four of seven streams that feed the brackish lake. Los Angeles has taken water from the streams since 1940 under water rights asserted by the city.
Environmental groups and scientists blame the diversions for shrinking the lake, a landmark of startling blue on the drive to Yosemite National Park and Lake Tahoe along U.S. 395.
They charge that the loss of fresh water has turned the briny lake more saline, threatening several species of alpine life, and creating a new source of air pollution by exposing 14,000 acres of lake bed to swirling winds that feed dust storms.
The original lawsuit was filed in Mono County, transferred to Alpine County Superior Court, and finally wound its way to U.S. District Court in Sacramento. A judge there said the water pollution argument was invalid in federal courts, but the Audubon Society and other environmental groups persuaded the judge that the air pollution problem was an issue for the federal courts.
Joined by Van de Kamp
Los Angeles and state Atty. Gen. John K. Van de Kamp, who joined the suit as a neutral party, argued on appeal that the issue belonged back in the state courts. The ruling Thursday by the U.S. 9th Circuit Court of Appeals threw out the air pollution argument and agreed that the entire issue belongs in state courts.
In an opinion signed by two of three judges, the appeals court rejected a legal move by the environmental groups known as a federal common law nuisance claim. Such a claim, if accepted, would have allowed a federal judge to set up rules for the use of Mono Lake water.
With the issue sent back to state courts, DWP assistant general manager Duane Georgeson said Los Angeles will be able to make a stronger argument that the city has a right to the water.
“Water rights are a matter of state law,” Georgeson said. “We think water rights are the key issue here.”
Attorneys for the Audubon Society conceded Thursday they would have a better chance in federal court, but said they were thankful there would be a trial after lengthy delays.
“We’re glad to have this (legal point) decided so that we can finally have the Mono Lake issue argued on the merits,” said F. Bruce Dodge, a San Francisco attorney for the environmental groups that sued the city.
Where the trial will be held remains uncertain. The trial could be scheduled in Markleeville, in Alpine County, or combined with other legal action over Los Angeles’ use of Mono Lake water and moved elsewhere.