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Final Examination, 2002

INSTRUCTIONS: Read these instructions very carefully. 

Consider the following statement of a hypothetical situation and offer advice to your clients, who represent an environmental group, on the legal questions raised by these facts.  Each student in the course must write an individual essay in response to this examination, although you may, if you wish, consult and confer with others in the course before you write your own answer.  My recommendation is that you discuss the problem with the others in your study group, but that is not a requirement. 

You must deal with the facts as they are presented and apply to them the law as it appears in the text and in your class notes.   These resources together constitute your "law library."  There is no need to consult or study any sources other than these, although there is a link provided to the CERES environmental law page, below, because it is such a useful ready reference.   

Write your essay addressed to your client in the form of an advice memorandum on the legal points and authorities you think are important and useful in answering the questions your client has.  There is no need to create or include footnotes.   However, you must refer in the text of your essay to relevant statutes, regulations, and cases, citing them in appropriate abbreviated form in parentheses in the text of your essay.   Overall, the memorandum should be not less than ten to twelve paragraphs long.   The memorandum is to be professionally prepared and presented in hard copy as a high quality word-processed document.  You should keep a back up copy.  I do not want a copy on disk.

The examination must be completed before 3:30 p.m. on Thursday, March 21st, which is the end of the final examination period published in the Winter Term, 2002, Schedule and directory.  Any work received after that time, even if only by a minute, will not be graded.  Completed examinations can be brought to my office, the location of which is noted in the course syllabus on the web.  In accordance with the bonus rule stated in that syllabus, examinations completed by 9:00 a.m. on Tuesday, March 19th, will earn an automatic "early bird" bonus of ten per cent of the mark assigned for the work. 

Quick Reference:  |  Course Home Page  |  Course E-mail Archive  |  CERES Environmental Law  | 

Satisfying the South State’s Thirst 

When the Sacramento Bee published details in February of what then seemed to be a fairly tentative plan to ship north state water to the southern part of California in zippered bags pulled by a tug, the plan had already attracted major interest.  More than that, it had attracted substantial capital investment for the company behind the scheme from both U.S. and foreign sources, the latter including Saudi Arabia, Japan, and Norway.  The original and fairly simple plan was the brainchild of Trevor Kustin and Toby Sasaki, two East coast investors.  But in the last month, as their plan has moved forward, rapidly, and has acquired several new features it has become both more complex and more ominous. 

In outline form, the plan called for capturing winter water in very large polyfiber bags near the mouth of the Albion and Gualala Rivers in Mendocino County and towing the bags 500 miles along the California coast to San Diego.  The bags hold 50,000 cubic meters of water.  That’s rather more than 40 acre-feet.  About nine bags a week would be towed south.  Over the course of a year, that adds up to about 20,000 acre-feet, in round numbers.  And at, say, $1,000 per acre-foot – a little more than double the $450 per acre-foot San Diego pays for water, now – the revenue from the plan is in the neighborhood of $20 million.  Even at $500 per acre-foot, it adds up to $10 million.  If the price of water goes up, as it very likely will in San Diego, and/or if ways are found to increase shipments, the plan holds the prospect of handsome revenues over a twenty to thirty year period. 

This prospect undoubtedly underlies the flurry of very recent activity.  The plan to bury 24 inch pipes in the beds of both rivers and run them out to offshore docking stations has been abandoned in favor of coast side loading only at Gualala, which is now the only site for which permission to appropriate remains active.  Water Export Technologies (WET), as the company now calls itself, has preliminarily negotiated a deal with the Sonoma County Parks Commissioner to acquire a forty acre section of Gualala Point Regional Park.  The Parks Commission will be paid $1,500,000 in unrestricted funds to be applied against regional park needs and will also receive a 64 acre property now owned by WET upstream on the river, as mitigation and future dedication as a nature preserve and study center.   

“This is a great deal for us,” said Parks Commissioner Ted DeClusin, “because we can put the loading dock on the other side of the Point from the town, screen it almost to the point of invisibility with native trees and shrubs, and come out the other side of this whole thing with money in our pockets.  It won’t have a footprint much bigger than the visitor center and other facilities we already have on the Point.  And we can site it in a low spot that’s usually wet and marshy most of the year, so people never go there much anyway.  Just needs some drainage pipes and concrete.  On the river side, we’ll only need a small pier and pump, and that won’t tear up the river bed or disturb the fish and the snorklers near as much as the original pipeline idea.  There are ecological pluses all over the place on this one, and I fully expect the Board of Supervisors and the Corps of Engineers and anybody else with permit authority to waive environmental review. The trick is just to keep everything as invisible as we can and get the townsfolk and the visitors on our side in the public relations battle.” 

On the same day it announced the deal over the park, WET said it had solved they key problem at the San Diego end of the scheme, where the city had complained that there was no infrastructure to handle off-loading of the water.  Using what some suspect are its strong political connections to the Republican Party and the Bush Administration, WET has been given a 99 year lease by the Department of the Navy on abandoned property in San Diego Harbor.  “It’s the old Woodside Navy Yard,” said Commander Harry Terpstra, a Navy spokesman.  “It was a munitions factory in World War I.  Then we converted it to chemical production during the Big War.  It ran full blast through the Vietnam War.  Can’t tell you what it made – top secret.  But it was pretty nasty stuff.  Then we closed it down and locked the gates and no-one much has been in there for the last twenty years.  Nice piece of shoreline real estate, though.  And ripe for recycling and reuse!  We ran a quick enviro assessment through the Commandant’s Office and signed the lease papers a week later.  I think the company is out there, now, moving dirt and setting up shop.” 

Indeed, they are.  WET has contracted with Merriman Construction to clear and regrade the part of the old Navy Yard site that used to house the production facilities.  It sits on land adjacent to Stekoll Slough and the harbor itself, and it will make, according to WET Vice President Jaime Spahr, an easy place for the tugs to navigate into and secure the water bags.  “We’re just going to knock down all the old buildings, for the moment,” said Spahr, “plough up the surface and pile everything into a corner of the lot.  Not sure how long we’ll let it sit there, but we’ll probably put an earthen berm around it and anyway the drainage runs right into the Slough, so our water operations aren’t going to be affected.  We’ll probably lay the foundations for the offload dock before the end of April.” 

But Peggy Gottschalk and Nancy Hofmann are sitting in your law office and they’re not nearly as pleased with all this sudden “progress” as WET, the Navy, and the Parks Commissioner.  They represent Californians for Smart WaterUse (CSW), and quite apart from their basic opposition to sending more north state water south, they have some specific legal concerns. 

After you hear what they have to say, advise them. 

Hofmann has been monitoring WET’s northern operations and is most concerned about the “crass, thoughtless, and almost entirely disastrous assault these people are making on the park and its resources.”  “The place is teeming with wildlife,” she says, “any fool who’s spent more than ten minutes there can figure that out.  There’ve been Davis and Berkeley students in that park for the last fifteen summers, at least, doing ecological research.  They know we have the Karise plover and the Tamara coastal redwing with habitat on that land, and both should be on the endangered list.  The Berta white-wing goose lives up the coast, on the coastal highlands, for a good part of the Spring as it migrates, and comes down to the estuary to feed, every day, during the season.  And it’s already on the threatened list.  The vegetation in the south part of the park has at least two species of rare dune grasses, Tooker’s tufty and Savoie’s sandwort.  There’s even partial documentation of Abbott’s three winged sand fly at several spots not a hundred yards from the property they think they’re going to acquire.  Nobody has seen that fly for the last thirty years, and, if it’s there, that’s a priceless find.”  “And by the way,” she adds, in a final flurry, “does that park land give them a riparian right?” 

Gottschalk has been keeping tabs on what’s happening further south.  “You know that these people applied to the State Board for a permit to take 30,000 acre-feet a year, don’t you?” she asks, quickly adding that the plans for the San Diego “infrastructure” are “huge” and would easily accommodate the traffic that implies.  “Now they say they’re only going to take 20,000 from the Gualala, but where’s the guarantee for that?  And where’s the guarantee that the suckers in San Diego are going to get what they think they’re paying for – pure, clean water?  Ha!  That old Navy yard is a witch’s brew every time it rains.  And if there’s any dust that blows across the harbor when the wind is up in the dry weather, everybody in downtown San Diego is going to sneeze, believe me.  Where’d they get permission to hurt people like that?”  She then launches into a critique of the parts of the plan that involve the movement of the water along the coast and “straight through the middle,” she says, of a marine sanctuary along the central California coast. 

Advise your clients. 

Specifically, write a memorandum in four parts explaining whether, how, and by whom, exactly, you think there may already have been or there are about to be violations of federal statutes.  You must identify the statutes you believe have probably been violated.  There are at least four.  Focus on the four you think give your clients the best chance of success in court.  Omit any discussion of the transportation and marine sanctuary issues.  One of your law partners will handle that.  And omit any mention of state law, except to comment briefly on Hofmann’s water rights question. 

Each of the four parts of your memorandum must state clearly (i) what law is relevant, (ii) how you think the law applies to the facts, above, and (iii) who CSW should sue in federal court to obtain specific remedies, which you must name.