In recent years, many Republicans have expressed strong support for Governor Jerry Brown's plan to build two giant water tunnels underneath the Sacramento-San Joaquin River Delta. Fox News pundits have also championed the water tunnels proposal. That's not surprising, considering the fact that the tunnels would primarily benefit large agricultural interests in the San Joaquin Valley — a GOP stronghold — by making it easier for the state to ship Northern California river water to the south. But in a strange political twist, three Republican-appointed judges at two appellate courts delivered stinging blows late last week to the giant water tunnels plan and to Big Ag.
The more significant of the two rulings was a 2-1 decision issued by two right-leaning judges from California's Third Appellate District. Associate Justice George Nicholson, who was appointed by Republican Governor George Deukmejian, and Associate Justice Andrea Lynn Hoch, who was appointed by Republican Governor Arnold Schwarzenegger, ruled that aspects of the water tunnels plan were illegal because they would allow state officials to enter private property without property owners' approval and without compensating them.
The state plans to conduct a battery of tests on about 240 private parcels in the Delta region, including drilling holes two hundred feet deep into the ground in order to determine the best route for the massive 35-mile-long tunnels. But Nicholson and Hoch said state officials couldn't do the extensive tests without the property owners' okay, and if property owners refused, then the state would have to purchase the parcels through eminent domain.
The ruling, in short, represented a classic defense of conservative principles: the protection of the rights of private property owners against unwanted intrusions by the government. But the outcome of the appellate court's decision likely will mean years of delay for the water tunnels plan, while the extra costs required to purchase private property could ultimately derail the proposal. As a result, the ruling by the Republican-appointed judges represented a significant setback for a $25 billion infrastructure plan that would primarily benefit Big Agribusiness and a GOP-dominated area of the state. About 80 percent of the freshwater pumped out of the delta and shipped south goes to agriculture.
Meanwhile, the dissenting judge in the case — who ruled in favor of allowing state officials to enter private property to conduct tests — was left-leaning Associate Justice Cole Blease, who was appointed by Brown in 1979 during his first administration. Blease's dissent was ironic because many Democrats, including most environmentalists, oppose the water tunnels plan and are not in favor of diverting more Northern California river water to use on water-intensive crops, especially in the arid western San Joaquin Valley.
A Republican judge also penned the other big court ruling last week against Big Ag interests — and in favor of environmentalists. In that case, Judge Jay Bybee, a former top lawyer in the George W. Bush administration who was appointed by Bush to the Ninth Circuit Court of Appeals, upheld federal environmental protections designed to protect the endangered delta smelt. Agricultural interests, led by the powerful Westlands Water District, which represents large farms in the western San Joaquin Valley, had sued to overturn the delta smelt protections because they resulted in cutbacks of water shipments from the delta. Some GOP Congressmen from the Central Valley have derided the smelt as being worthless.
However, unlike the other big ruling from last week, Bybee's opinion does not appear to have been based on conservative principles. Instead, Bybee concluded that trial court Judge Oliver Wanger had simply misinterpreted federal law when he ruled against the smelt protections in 2010. Bybee was joined in his ruling by liberal judge Johnnie Rawlinson, who was appointed by President Bill Clinton. And environmentalists immediately lauded the decision.
"We have a decision now that's written by one of the more conservative members of the Ninth Circuit, Judge Bybee, joined by one of the more liberal members," Kate Poole, an attorney for the Natural Resources Defense Council, which led the appeal of Wanger's ruling, told the Los Angeles Times. "It should put the questions about protections — at least for the delta smelt and the estuary — to rest."
Bybee's decision also could impact the water tunnels plan because, if upheld, it would limit the amount of freshwater that the state could divert from the Sacramento River and send through the tunnels before it reaches the delta.
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