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Restore Hetch Hetchy files appeal notice


Guy McCarthy / The Union Democrat When Hetch Hetchy Reservoir is full it floods eight linear miles of the Tuolumne River, submerging Hetch Hetchy Valley and the lowermost section of the Grand Canyon of the Tuolumne.

Oakland-based activists who want Hetch Hetchy Valley restored in Yosemite National Park have filed a notice of appeal in Tuolumne County Superior Court, challenging a Sonora judge’s ruling that blocks their lawsuit against the City of San Francisco and other agencies.

Restore Hetch Hetchy’s case alleges the reservoir flooding Hetch Hetchy Valley under 300 feet of water violates water diversion mandates in the California constitution. They want California courts to weigh the value of restoration against the cost of water system improvements necessary for San Francisco to retain existing uses of the Tuolumne River without Hetch Hetchy Reservoir.

In April, Tuolumne County Superior Court Judge Kevin M. Seibert ruled the state constitution has no bearing on Hetch Hetchy Reservoir because permission for its construction was granted by U.S. Congress to San Francisco in 1913. Seibert also ruled the statute of limitations for any such lawsuit has expired.

Seibert’s ruling stalled legal moves by activists who want Hetch Hetchy Valley in Yosemite National Park restored to what it looked like before workers in Tuolumne County completed O’Shaughnessy Dam more than 90 years ago.

Restore Hetch Hetchy officials said in late April they were going to file a notice of appeal in Tuolumne County Superior Court. They filed their three-page notice of appeal Tuesday in Sonora.

“The next step is to put together the record of what’s happened in court, and it will be filed in the appellate court in Fresno, the Fifth District Court of Appeal,” Spreck Rosekrans, executive director for Restore Hetch Hetchy, said Wednesday in a phone interview.

Their original complaint in April 2015 and in November they touted a Superior Court ruling that proceedings would take place in Tuolumne County.

Seibert’s ruling in April prevents California courts from considering the merits of restoring Hetch Hetchy Valley in Yosemite, Restore Hetch Hetchy staff and public relations contractors said in a statement this week. That is why they are appealing in Fresno.

O’Shaughnessy Dam and the Hetch Hetchy Water & Power System are operated by San Francisco Water, Power and Sewer and overseen by the San Francisco Public Utilities Commission.

"The Tuolumne County Superior Court analyzed the issues extremely thoroughly, and reached the same conclusion we did: as a matter of law, this litigation is a non-starter,” Matt Dorsey, press secretary for San Francisco City Attorney Dennis Herrera, said when Restore Hetch Hetchy people announced their intent to appeal on April 29. “We don't expect an appellate court to reach a different conclusion."

Tuolumne River

City of San Francisco leaders began looking at the Tuolumne River and Hetch Hetchy Valley back in the 1880s, a decade after conservationist John Muir visited Hetch Hetchy for the first time.

Historians say the devastating 1906 earthquake and fire that destroyed parts of San Francisco underscored the city’s need for a more reliable water system. The city applied to the federal Department of Interior to gain water rights to Hetch Hetchy, and in 1908 Interior Secretary James Garfield granted San Francisco rights to develop the Tuolumne River.

Then in 1913, President Woodrow Wilson signed the Raker Act, which permitted San Francisco's development of the Hetch Hetchy project. Construction of O'Shaughnessy Dam began in 1914.

Building the dam and other parts of the Hetch Hetchy system brought thousands of workers to Tuolumne County over several decades. O'Shaughnessy Dam was completed to its final dimensions in 1938.

Behind O'Shaughnessy Dam, when Hetch Hetchy Reservoir is full it floods eight linear miles of the Tuolumne River, submerging Hetch Hetchy Valley and the lowermost section of the Grand Canyon of the Tuolumne. The dam and reservoir receive water from 459 square miles of the Tuolumne River watershed.

Descendants of Hetch Hetchy laborers today live all over the Mother Lode. Restore Hetch Hetchy was founded in 1999.

‘Adversaries’

Last week, Rosekrans said Restore Hetch Hetchy staff and supporters look forward to the day when Hetch Hetchy Valley is restored and becomes a Yosemite attraction. He said Restore Hetch Hetchy people believe San Francisco will eventually support restoration.

For now, San Francisco and other communities that depend on the Tuolumne River for water supply are opposed to the Restore Hetch Hetchy campaign. Activists say San Francisco is their chief adversary. Their legal actions name three other parties as "real parties in interest and defendants."

They are the Bay Area Water Supply and Conservation Agency, which serves San Francisco's suburban customers, Turlock Irrigation District and Modesto Irrigation District.

San Francisco Water, Power and Sewer staff say removing O’Shaughnessy Dam would require complete re-engineering of the water and power delivery system that serves more than 2.6 million people on a daily basis.

The State of California estimated re-engineering costs to be anywhere from $3 billion to $10 billion, according to San Francisco Water, Power and Sewer. Re-engineering the entire system would also have negative impacts on water supply reliability and water quality, on legal rights to property and water, and on statewide water allocations and agreements.

‘Historic mistake’

Restore Hetch Hetchy activists say O’Shaughnessy Dam and Hetch Hetchy Reservoir are part of a “century-old historic mistake.” They want the Fifth District Court of Appeal to consider the merits of restoring what Muir called “one of nature’s rarest and most precious mountain temples.”

The activists say their appeal is coming on “the eve” of centennial celebrations for the National Park Service, which was created in August 1916 in response to public backlash against plans to dam Hetch Hetchy inside Yosemite park boundaries.

According to a National Park Service Yosemite web page headlined “Remember Hetch Hetchy: The Raker Act and the Evolution of the National Park Idea,” the 1913 Raker Act and Hetch Hetchy plan sparked public debates about what designation of a national park actually meant.

“As people tried to answer that question for themselves, the public disapproval that was generated after the bill’s passage was one of the driving forces behind the creation of the National Park Service,” the federal web page states.

Within three years, Congress passed the Organic Act, formally defining national parks and creating a new federal agency, the National Park Service. The National Park Service turns 100 on Aug. 25, 2016.

San Francisco argues the Hetch Hetchy reservoir is subject only to federal law, not to California law, and any legal complaints should have been filed decades ago.

But the federal government has no direct stake in San Francisco’s water and power system, and Congress specifically requires that all elements of the city’s water system comply with California law, said Michael Lozeau, chief counsel for Restore Hetch Hetchy.

“The trial court ruling, that the statute of limitations for filing a complaint under the California Constitution has expired, is inconsistent with past court rulings that form the bedrock of State water law,” added Richard Frank, co-counsel for Restore Hetch Hetchy. “We don’t think it will be upheld on appeal.”

Rosekrans says that as the National Park Service centennial approaches, it is worth noting that no one would consider damming an iconic glacier-carved valley in Yosemite National Park today.