Litigation

Central Delta Water Agency v. Dep't of Water Resources

This case challenged the secret deal known as the "Monterey Amendments." The deal was between California's Department of Water Resources, which manages the State Water Project, and most of the contracting agencies who receive water from that project. The result of the deal was changes of the long-term contract governing the management of the State Water Project. Among these were the elimination of a provision that provided that times of drought agricultural users would have their deliveries reduced before residential and commercial users. The amendments also eliminated a provision regarding surplus water, that had previously given preference to agricultural users in times of flood and high water availability. Together, these provisions and others altered the original sustainable architecture of the SWP, leading to unsustainable deliveries of water out of the Delta ecosystem and increased pressure on DWR to deliver water it didn't actually have. The deal also provided for the effective privatization of the Kern Water Bank, one of the largest water banks in the world and an essential part of California's public water infrastructure.

We unfortunately lost these cases in 2021, when our appeals were denied by the Third District Court of Appeals in opinions authored by the now-disgraced Justice Vance W. Raye. The main appeal languished on Justice Raye's desk for 1983 days - the fifth longest of the 200 appeals the Commission on Judicial Performance included in its exhibit of appeals demonstrating Justice Raye's "Pattern of Persistent Decisional Delay." Number 7 on the list is our related appeal of the trial court's denial of our attorneys' fees. The third related appeal clocks in at Number 58 on the list.

The outrageous length of time it took for Justice Raye to schedule hearings in these appeals is directly related to why we lost; too much time had passed; inertia had set in; it was all "water under the bridge." It didn't help that the Department of Water Resources had done its part to create that inertia, by taking practically a decade to complete its second attempt at environmental review for the project, but Justice Raye's five and a half years of icing the appeal did it's part, too. One need look no further than the single opinion Justice Raye authored for these three appeals (see below), which is starkly lacking almost any actual analysis or legal reasoning, filling up its 58 pages almost entirely with simple (and often inaccurate) recitation of facts, descriptions of the parties' arguments, and quotes from the trial court opinion. The opinion avoided all of the truly interesting legal issues raised in the appeals, dismissing them instead with conclusory statements that, while "resolving" the issues, convince nobody that justice was served. The opinion is a joke, and a seemingly spiteful one. Unfortunately, it has caused and will continue to cause great damage to California, both to the state's ability to equitably and rationally distribute our shared water resources and the ability of the Delta ecosystem to survive.  

Strahan v. Mass. Exec. Office of Energy and Env. Affairs

This lawsuit was originally filed by pro se litigant Man Against eXtinction, aka Richard Max Strahan, challenging Massachusetts's regulation of its lobster and gillnet fisheries due to the harm these fisheries are causing to endangered whales and sea turtles, especially to the critically endangered Northern Right Whale. The Commonwealth not only permits, but requires, the use of vertical buoy ropes by these fisheries in Massachusetts waters, which entangle whales and turtles. Entanglement causes lethal and sublethal harm, killing whales and turtles and interfering with feeding and breeding activity even when the whales do not die. 

This harm is in violation of the Endangered Species Act and is the single most important factor in the imminent extinction of the Northern Right Whale. 

Without eliminating vertical buoy ropes in Massachusetts waters, the remaining 300+ Northern Right Whales have no chance to recover.

Strahan secured a favorable ruling on his motion for a preliminary injunction, requiring the state to secure a permit under the Endangered Species Act to continue harming Northern Right Whales, and if it could not do so within 90 days, permitting Strahan to renew his motion. Strahan then sought representation by Adam Keats and the law firm of Hagens Berman Sobol Shapiro LLP,  and the case proceeded to trial in 2021. The judge issued an extensive indicative ruling agreeing with Strahan that the Commonwealth's licensing activities violated the Endangered Species Act, and that the proposed mitigation measures (like weak rope or breakaway links) would neither immunize the Commonwealth from its liability nor prevent the extinction of the species. Unfortunately Mr. Strahan, who has devoted the past 35+ years of his life to protecting the North Atlantic Right Whale and preventing its extinction, was found to not have standing to bring the case. This conclusion rests on concerted efforts by radical conservative judges, started by Supreme Court Justice Anthony Scalia, to eviscerate the Endangered Species Act's provision that "any person" may bring suit to enforce the law. Unfortunately, over the years, "any person" has been severely constrained to now mostly mean just people or corporations with financial interests in the species at issue. Folks with real interests, like spiritual connections, ethical beliefs, and just plain understanding of how our interconnectedness to nature is essential to our survival as a species, are not welcome to in our courts to fight for these species. And thus the killing and extinction continues.