Glenn County - Tehama County - Colusa County , California.
(c) 2009, Mike Barkley

Order in Civ 91-1128

[A transcription of Doc 70, the final ruling on Civ. 91-1128

Important because it shows how difficult it is to read and interpret the Angle Decree. While Judge Levi may have come to the right decision, a lot of what he had to say about the Decree is just plain WRONG. Thank goodness it wasn't published.

In straight text without elaborate formatting. Any editorial comments by me are contained within brackets, "[]", which you may delete easily after downloading the "page source" to your own editing software if your browser allows source downloading. ]

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OCT 8 1992








Civ. S-91-1128-DFL-JFM


This case involves a dispute over the Bureau of Reclamation’s ("Bureau") duty to supply water from the Black Butte reservoir to plaintiff Glenn-Colusa Irrigation District ("GCID"). The parties have submitted cross-motions for summary judgment. For the reasons discussed below, defendants' motion is granted and plaintiff’s motion is denied.


Plaintiff GCID is an irrigation district providing irrigation to approximately 141,000 acres of farm land in the


Central Valley of California. GCID’s main source of water for its irrigation needs is a pumping facility on the Sacramento River.

In August 1991, the National Marine Fisheries Service sued GCID in this court alleging that GCID’s pumping facility was taking winter-run chinook salmon in violation of the Endangered Species Act ("ESA"). The court found a violation of the ESA and issued an injunction which significantly limited the amount of water GCID could pump at its Sacramento River facility. See U.S. v. Glenn-Colusa Irr Dist., 788 F.Supp. 1126 (E.D.Cal. 1992).

GCID now seeks to offset some of its loss of water supply due to the injunction. Invoking the terms of the 1964 Diversion Contract between GCID and the Bureau, GCID claims a right to demand that the Bureau release a specified amount of water stored in the Bureau's Black Butte dam and reservoir. GCID seeks a release of that water down Stony Creek, from which it may enter GCID’s irrigation system. Stony Creek waters are not subject to the Sacramento River injunction.

Several legal instruments govern GCID’s claim to Stony Creek water and to water stored behind the Black Butte dam. The first of these instruments is known as the Angle Decree. This 1930 decision of the federal District Court for the Northern District of California consolidated and adjudicated numerous California water rights disputes between private landowners, local irrigation districts and the United States government. U.S. v. H.C. Angle et. al., In Equity No. 30 (Northern Division, N.D.Cal. 1930). Under the Angle Decree, the United States (and thus the Bureau)


may divert 265 cubic feet per second ("c.f.s.") from the natural flow of Stony Creek for use in one of its water projects. Id. at 171-172. [fn 1: The United States' rights are set out in a separate passage of the Decree called the "Glenn-Colusa Stipulation."] Once the United States has taken its allotment, GCID may then divert up to 20,315 acre-feet of water from Stony Creek between March 15 and October 1 at a rate not to exceed 500 c.f.s. Id. at 170.

The Angle Decree also allows the United States to construct reservoirs on Stony Creek and to store all the water on the creek during the rainy season of October through February. Id. at 172. The United States may also store water during the dry season of March through September, subject to certain conditions. Id. At the time of the Angle Decree, the Black Butte reservoir which is the focus of this case did not exist.

Decision D1100 of the California State Water Rights Board ("SWRB") is the second written instrument relevant to this dispute. That decision, adopted on September 26, 1962, granted a permit to the Bureau to build the Black Butte dam on Stony Creek. The SWRB also allotted 160,000 acre-feet of Stony Creek water to the Bureau and allowed the Bureau to store the water in the reservoir. Decision D1100 at 10. Under the Decision, the Bureau could collect and store this water only from November through April of each year. Id. at 9.

In 1964, the Bureau and GCID entered into a Diversion Contract, the third pivotal document in this case. This contract


updated the water supply relationship between GCID and the Bureau from its pre-Black Butte status under the Angle Decree. The Diversion Contract required the Bureau to deliver 720,000 acre-feet of water to GCID, designated "base supply." Diversion Contract, Exhibit A. GCID also was to receive another 75,000 acre-feet as "project supply." Id. [fn 2: The parties have asserted that the "project supply" amount is 105,000 acre-feet. The text of the Diversion Contract provides for 75,000 acre-feet of project supply. This discrepancy does not affect the reasoning of this order so the court will not attempt to resolve it. ] Section 10a of the Diversion Contract specified the source from which these supplies were to he drawn: the Sacramento River or Stony Creek. Diversion Contract at 19.

Section 10a has two other important clauses. The first allows the Bureau to require GCID to take all of its total supply under the Diversion Contract exclusively from the Sacramento River, or from Stony Creek. Id. The second addresses emergency situations. It provides that GCID may divert water from Stony Creek "to the extent of its entitlements under the Angle Decree" if its Sacramento pumping facility becomes "inoperable due to an emergency or unforeseeable cause." The contract limits these emergency diversions from Stony Creek to "periods not to exceed five (5) consecutive days." Id. at 20. [fn 3: Section 10a's emergency provision reads in full:
Notwithstanding the other provisions of this subdivision, the Contractor reserves the right to divert water from Stony Creek to the extent of its entitlements under the Angle Decree, for periods not to exceed five (5) consecutive days, whenever its Sacramento River pumps are temporarily unable to meet its diversion requirements because said pumps are partially or wholly inoperable due to an emergency or an unforeseeable cause.
Diversion Contract at 20. ]


GCID, with its main pump curtailed by the ESA injunction, now invokes section 10a's emergency provisions to require the Bureau to deliver down Stony Creek GCID's 20,315 acre-feet of Angle Decree water. GCID cannot directly divert the 20,315 acre-feet from Stony Creek's natural flow because the creek is but a trickle during the current dry season. Thus, the water must come from behind the Bureau’s Black Butte dam or not at all. The parties dispute whether the instruments described above give GCID a right to stored water. They submit cross-motions for summary judgment, asking the court to decide that question.


The parties' cross-motions must be decided by interpreting the contract between GCID and the Bureau. "Federal law controls the interpretation of a contract entered pursuant to federal law when the United States is a party." Kennewick Irr. Dist. v. U.S., 880 F.2d 1018, 1032 (9th Cir. 1989) (citing United States v. Seckinger, 397 U.S. 203, 209-210 (1970)). The United States is clearly a party to the Diversion Contract. The contract also derives from federal law. See Diversion Contract at 1 (preamble stating that contract is "in pursuance generally of the Act of


June 17, 1902 (32 Stat. 388)"). [fn 4: The popular name for this act of Congress is the Reclamation Act of 1902. Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Summary Judgment at 21.] Thus, federal law controls the interpretation of this contract. [fn 5: GCID contends that California state law rules of contractual interpretation should apply. It points to section 25 of the Diversion Contract, which requires GCID to seek judicial "approval" of the contract in California state court. Section 25 is not a choice of law provision and its wording does not support an inference that the parties bargained to have all contract disputes resolved under California law. ]

GCID premises its interpretation of the contract on extrinsic evidence which allegedly establishes that the parties intended the Diversion Contract to give GCID a right to water stored behind Black Butte dam. This evidence includes memoranda and letters discussing the Diversion Contract’s drafting, earlier drafts of the contract itself, and numerous examples of alleged past practice under the contract.

Federal law in this circuit disfavors extrinsic evidence and instead emphasizes the plain language of the relevant documents. In Morta v. Korea Ins. Corp., 840 F.2d 1452, 1459-60 (9th Cir. 1988), the court stressed that in interpreting written contracts courts should follow the reasonably objective meaning of the words used by the parties rather than extrinsic evidence of alternative meanings. See also Trident Center v. Connecticut General Life Ins., 847 F.2d 564 (9th Cir. 1988) ("Under traditional contract principles, extrinsic evidence is inadmissible to interpret, vary or add to the terms of an unambiguous integrated written


instrument"). The documents in this ease are unambiguous [fn 6: The fact that GCID and the Bureau disagree as to the Diversion Contract’s meaning does not establish that the contract is ambiguous. See Kennewick, supra, 880 F.2d at 1032 (quoting International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1406 (9th Cir. 1985)).] and their language -- not GCID’s proposed extrinsic evidence -- controls the outcome here. [fn 7: It is therefore unnecessary to resolve the dispute between GCID’s General Manager Robert D. Clark and the Bureau over the Bureau’s past practices under the Diversion Contract.]


Section 10a of the Diversion Contract rests GCID’s emergency water rights on its "entitlements under the Angle Decree." Diversion Contract at 20. Thus, the analysis of whether section 10a requires the Bureau to release Black Butte water to GCID must begin with an analysis of GCID’s rights under the Angle Decree.

The Angle Decree gives GCID the right "to divert from Stony Creek" the 20,315 acre-feet at a maximum of 500 c.f.s. Angle, supra, at 169-70 (emphasis added). The current Angle Decree Water Master has submitted a declaration that this language gives GCID the right to "direct diversion only, not for storage." Declaration of Water Master George G. Wilson at 1 (emphasis in original). GCID manager Robert Clark agreed with Water Master Wilson’s interpretation when asked about it during a deposition. Deposition of Robert D. Clark at 11:24-12:3. The court understands Water Master Wilson's statement to mean that the Angle


Decree itself gave GCID no right to any water stored on Stony Creek by the United States. [fn 8: The Decree certainly gave GCID no rights specifically to water in the Black Butte reservoir because Black Butte did not come into existence until more than 30 years after the Decree.] Water Master Wilson is appointed under Article XVI of the Angle Decree. Angle at 176. The Decree gives him the power to "carry out and enforce" its provisions. Id. Given these powers, the Water Master’s interpretation of the Decree is persuasive.

Despite the Water Master’s opinion, one passage in the Angle Decree might be read to grant GCID rights to stored water on Stony Creek. Paragraph (c) of the Glenn-Colusa Stipulation allows the United States to:
construct operate and maintain reservoirs, and to store therein all the waters on Stony Creek and its tributaries during the months of October, November, December, January and February of each year, and in other months of each year to store in said reservoirs such portions of said waters as are not reasonably required to be diverted from Stony Creek for the irrigation of lands . . . in said defendant district [GCID].
Angle, supra, at 172. The Decree then states:
Upon written notice from said defendant district, said plaintiff will discontinue the storage of water in such other months whenever said defendant district may reasonably require such water.

This paragraph in the Stipulation may imply that from April through September, GCID may require the Bureau to "discontinue the storage" of Stony Creek water behind any Bureau dams, including


Black Butte. Such 'discontinuation' would send the water down Stony Creek and into GCID's canal system. Thus, under this reading, GCID has an ‘entitlement under the Angle Decree’ to demand water stored behind Bureau dams, including Black Butte. Since section 10a of the Diversion Contract gives GCID emergency rights "to the extent of its entitlements under the Angle Decree," GCID would be able to require the Bureau to released [sic] stored water pursuant to section 10a.

However, this interpretation of the quoted paragraph misreads the meaning of the words "store" and "storage" in the quoted paragraph. These words must be read in light of the whole of the Decree. See Kennewick, supra, 880 F.2d at 1032 (quoting Shakey’s, Inc. v Covalt, 704 F.2d 426, 434 (9th Cir. 1983)). As already noted, the Decree’s main grant to GCID is the right to directly divert water flowing in Stony Creek. The Decree does not give GCID rights to water collected and held on Stony Creek in Bureau reservoirs. The Stipulation must be read consistently with the absence of any express grant to GCID of a right to stored water. Thus, when the Stipulation allows GCID to demand discontinuation of "storage" during the dry summer months, the word "storage" must refer to the Bureau.s collecting of water flowing into the reservoir, not the Bureau’s holding of water collected already. Under the Stipulation, GCID cannot demand that the Bureau release water which has already been collected from Stony Creek and held (or stored) in the Black Butte reservoir behind the dam. Rather, it can request that the Bureau cease collecting whatever water is


naturally flowing into the back of the reservoir and let that amount flow "through" the reservoir and out the front of the dam, whereupon it will flow down Stony Creek to GCID’s diversion point on the creek. When Stony Creek's flow is light or non-existent, GCID’s right to demand discontinuation of "storage" under the Stipulation will reap it only a small amount of water, if any.

This is 'the extent of GCID’s entitlement under the Angle Decree,' and it is this right which GCID may exercise in an emergency covered by section 10a of the Diversion Contract. GCID is attempting to do something quite different in the present lawsuit. It asks the Bureau to release water that has already been collected and held for storage in the Black Butte reservoir. The Angle Decree does not give GCID this right. Insofar as GCID’s rights under section 10a of the Diversion Contract are dependent on its rights under the Angle Decree, GCID cannot invoke section 10a to require the water releases it now requests


Section 10a of the Diversion Contract must also be examined in its entirety to determine if its language, other than the passage incorporating Angle Decree rights, gives GCID the right to demand release of stored water. The emergency clause in section 10a states that GCID can "divert water from Stony Creek." Diversion Contract at 20. This language is consistent with the Angle Decree’s limitation of GCID to diversion of natural flow. There is no language in section 10a which requires the Bureau to


hold a certain amount of water behind the Black Butte dam for GCID in the event of an emergency. Moreover, no language in section 10a provides that GCID may insist that the Bureau release water held in the Black Butte facility. Thus, the language of section 10a does not expand GCID’s rights beyond its Angle Decree rights to directly divert from Stony Creek's natural flow.

Both parties agree that they drafted section 10a to give the Bureau highly valued flexibility in the management of its California water projects. The SWRB’s Decision D1100 recognized that at the time the Bureau obtained the permit for Black Butte, the Bureau envisioned supplying water from the reservoir to customers other than GCID. Decision D1100 at 6-7. GCID’s counsel admitted this point at oral argument. In addition, the Bureau apparently intended to (and does now) use the Black Butte project for flood control, drought relief, recreation, and movement of water around its network of facilities. Section 10a itself reflects the Bureau’s desire for flexibility. That section gives to the Bureau the power to dictate that GCID will take its total supply under the Diversion Contract exclusively from the Sacramento River. Diversion Contract at 19.

Through the Diversion Contract, the Bureau protected its ability to use Black Butte water in any manner it so desired or required. If GCID could, as it argues, insist that the Bureau always maintain a parcel of water behind Black Butte dam for GCID’s emergency use (at least 20,315 acre feet) under section 10a, this would destroy the Bureau’s bargained-for flexibility.


GCID’s asserted right to demand release of water stored behind Black Butte cannot derive from section 10a of the Diversion Contract any more than it can derive from the Angle Decree. Neither of these two controlling documents supports GCID’s claim for the stored water.


Even if GCID did have a right to obtain release of Black Butte water, the circumstances under which it could exercise that right are not present in this case. Section 10a allows diversions from Stony Creek only when GCID's Sacramento River pumps are "temporarily unable to meet its diversion requirements because said pumps are partially or wholly inoparable due to an emergency or an unforeseeable cause." Diversion Contract at 20 (emphasis added). In the event of such an emergency, GCID can divert water from Stony Creek for "periods not to exceed five (5) days." Id. The current injunction limiting GCID’s Sacramento river pumps is outside the scope of section 10a's emergency provision.

The ESA injunction does not merely "temporarily" limit GCID’s Sacramento River pumps. That injunction could remain in effect for years until GCID installs fish-protection screens. In contrast, a common sense reading of section 10a indicates that its emergency provision is designed to help remedy brief hindrances to the Sacramento River pumps due to mechanical breakdowns or flooding, for instance.

If GCID’s interpretation of the written instruments and


extrinsic evidence were to prevail, it would be able to require the Bureau to release Black Butte water down Stony Creek for five days. The Bureau would then cease the releases for one day and then resume releasing Black Butte water for five more days. This process would presumably continue until GCID received all of its 20,315 acre-feet Angle Decree allotment. The Bureau would be forced to earmark the amounts of Black Butte water required to meet GCID’s proposed regimen. As discussed already, this would deprive the Bureau of the flexibility it so clearly sought from the terms of the Diversion Contract. Moreover, such a process of near continuous release is an unreasonable interpretation of section 10a, which envisions a temporary period of interruption of up to five days. See Kennewick, supra, 880 F.2d at 1032 (quoting Shakey's, supra, 704 F.2d at 434) ("'Preference must be given to reasonable interpretations as opposed to those that are unreasonable, or that would make the contract illusory'").

The injunction limiting GCID’s pumps was also not "unforeseeable" so as to implicate section 10a’s emergency provision. As this court noted in its order setting the injunction, GCID has known that its pumps were taking fish for many years now. It has been on notice of the potential illegality of this fish mortality for a similarly long period of time. The injunction was not unforeseeable nor are the pumps rendered "temporarily . . . inoperable" by that ruling. Section 10a’s


emergency clause is not applicable to the circumstances here. [fn 9: At oral argument, counsel for GCID stressed three points. He first argued that GCID’s rights under the Angle Decree and Section 10a could not have been limited to the natural flow of Stony Creek because those documents do not indicate how to determine the "natural flow" of the creek. The Angle Decree speaks in terms of "surface and underground flow." Angle at 171. The court has no evidence before it regarding the difficulty or impossibility of measuring natural flow. The parties must have intended that "flow," or natural flow, was measurable and was a meaningful concept in their agreement.

Counsel next argued that under the Diversion Contract the Bureau gained only partial flexibility to limit GCID to specified monthly allotments of water. This is unpersuasive. As discussed in text, the Bureau bargained for complete flexibility in satisfying GCID’s Angle Decree allotment and particularly sought to avoid any obligation to maintain a block of water behind Black Butte for GCID. See, eg. [sic] Bureau Memorandum, April 20, 1962, Review of "Glenn-Colusa Irrigation District Report on Water Requirements and Water Entitlements from Sacramento River," at 2.

Finally, in an argument not entirely clear to the court, counsel maintained that section 10a's use of the word "entitlements" was intended to give GCID the right to a 'block' of water behind Black Butte Dam. Such a reading is unnatural. GCID’s 'entitlement' under the Angle Decree is nothing else but the water rights it received under the Decree. As already discussed, that entitlement does not include a right to stored water. Use of the word "entitlements" in section 10a does not change that fact.]


The court holds that as a matter of law GCID has no right under the Angle Decree or Diversion Contract to the stored Black Butte water which it demands in this lawsuit. Alternatively, even if GCID did have a right to stored Black Butte water, it cannot enforce that right when its pumps have been restricted for a lengthy period of time by judicial order rather than rendered


"inoperab1e" for a period of days by natural causes. Diversion Contract at 20. GCID's motion for summary judgment is therefore denied. The government's cross-motion is granted.


Dated: 5 October 1992

/s/ David F. Levi
United States District Judge

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Return to Stony Creek Water Wars.

--Mike Barkley, 161 N. Sheridan Ave. #1, Manteca, CA 95336 (H) 209/823-4817