This U.S. Court of Federal Claims decision ruled that the federal government had no contractual obligation to build a "San Joaquin Drain" to transport ag drainage full of salts and heavy metals from the west side of the Valley to the Delta. While not the end of the legal argument, eventually the issue will be moot because the west side, because of that irrigation it so highly prizes, is salting up. Field by field, it will eventually be abandoned as unfarmable wasteland.
Meanwhile, the black box crowd has been at work on the west side. One farmer, John Diener, is exploring mining his salt.
Prickly pear cactus, a salt-tolerant crop, naturally produces antioxidant rich fruit and adding selenium makes it even healthier. (Selenium is essential to good health in small amounts.) But even with mineral absorption from cacti and other salt-loving plants, eventually, it all gets super concentrated, and Diener ends up with a big pile of salt on his ranch, which is the case for many farms on the west side. Water supplied by the federal and state projects brings the equivalent of 40 railroad cars of salt into the area every day, about 4,000 tons of salt daily.
Diener hopes to sell the excess salt to glass producers, since sodium ash is used in the glass manufacturing process. “The glass factory in Madera needs 20 tons a day, and we can generate that in a minute,” Diener said. “The idea is make the waste into marketable products.” -- Deanna Lynn Wulff, Bilingual Weekly, Dec. 11, 2012.
Badlands Journal editorial board
Westlands Water District's $1 billion claim dismissed
Wanted feds to pay for failed drainage…MICHAEL DOYLE email@example.com
WASHINGTON A federal court has quietly dismissed a $1 billion claim by the well-known Westlands Water District, leaving unresolved the long-standing problem of coping with irrigation drainage in the San Joaquin Valley.
Wading carefully into one of the West's muddiest controversies, a U.S. Court of Federal Claims judge rejected arguments by Westlands, the nation's largest water district, that the federal government should pay for failing to build a drainage system that carries away used irrigation water. The failure has vexed farmers and officials alike for several decades and incited multiple lawsuits.
In her 56-page ruling, U.S. Court of Federal Claims Judge Emily C. Hewitt largely avoided the immense political, agricultural and environmental consequences. Instead, Hewitt reasoned that Westlands' lawsuit, filed last February, failed for technical legal reasons, including her court's limited jurisdiction and the expiration of a six-year statute of limitation.
"All the events that would fix the liability of the government with regard to any breach of the (contracts) ... would have occurred before 2006, outside the limitations period," Hewitt said at one point.
Moreover, Hewitt, in her decision issued Jan. 15, specifically rejected several of Westlands' claims that the federal government was legally obligated under multiple contracts dating to the 1960s to complete a drainage system.
"Because (Westlands) failed to show that drainage service was a bargained-for benefit of any of these contracts, (Westlands) has not shown that drainage service is a 'fruit' of any of the contracts," she reasoned.
Craig Manson, the general counsel for Westlands, said Tuesday that the water district was evaluating its options and stressed that it "will press" the government to provide drainage.
A lawsuit filed by individual Westlands farmers, relying on different legal arguments, is still pending before the claims court.
"We still believe we have a viable claim against the government for failure to provide drainage service," Manson said in a telephone interview.
Serving some 600,000 acres, Westlands is one of the most politically potent water districts. Manson is a former top Interior Department official, and the district hired the Denver-based law firm Brownstein Hyatt Farber Schreck to file the claims court lawsuit. The Washington court handles cases that involve financial claims against the federal government.
From the start, Westlands' lawyers underscored the high stakes.
"In the end, this is the never-ending story of the United States government simply running away from a mammoth problem it, itself, created by failing to perform its statutory and contractual obligations," attorney Lawrence W. Treece wrote in the water district's initial brief.
Congress set the train in motion in 1960 when it authorized the San Luis Unit of the vast Central Valley Project network of dams and canals. As part of the overall project to deliver irrigation water, lawmakers included a drainage system to dispose of the saline water that accumulates beneath irrigated land.
At one point, federal officials directed the drainage to Kesterson Reservoir in western Merced County. Because the planned drain was never completed to the Sacramento-San Joaquin Delta, the toxic water piled up at Kesterson, poisoning birds and other wildlife until the Interior Department shut it down in the mid-1980s. Subsequent efforts to find a lasting solution have failed.
As an alternative to its $1 billion claim, Westlands asked that its future water-contract payments be reduced to account for the government's contractual failures.
Hewitt disputed Westlands' contention that the language of several contracts dating to 1963 constitutes a legal obligation of the federal government to construct a drainage system.
"At most it represents defendant's prediction or intent that the interceptor drain will provide service to Westlands in the future," Hewitt said of the language in one contract, adding that "government representations are not binding contractual obligations unless stated as an undertaking rather than an intention."
Complicating the picture, another federal court previously ruled that the federal government had "a duty to provide drainage service" to Westlands.
This earlier ruling, though, focused on a "statutory" duty imposed by the 1960 law authorizing the San Luis Unit, and it's different from a contractual duty. This earlier ruling, Hewitt added, also didn't specify what kind of drainage must be provided.