Another U.S. Supreme Court Water Challenge Case

Another U.S. Supreme Court Water Challenge Case

Lynn Grayson   By E. Lynn Grayson, Partner, Jenner & Block

The Colorado River Water transfer pacts are at issue again in a new petition for review recently filed. In Cuatro Del Mar v. Imperial Irrigation District, U.S., No. 12-53, 7/11/12, Cuatro Del Mar, a citrus and palm tree grower, accused the Imperial Irrigation District and other agencies of violating agricultural water users' constitutional rights in approving contracts that grew out of the Quantification Settlement Agreement (QSA) that brought California into compliance with its federally allotted portion of Colorado River water.

At issue is the process the Imperial Irrigation District used to approve the QSA contracts, which increased flows to urban users and reduced diversions to agricultural operations. Plaintiffs argued they were deprived of their due process rights when the agreement was executed. Only a small portion of the contracts was made available to agricultural users, and there was insufficient public notice, they said. Also, the plaintiffs said they were further deprived of due process when the contracts were validated using a state statute adopted specifically for the QSA, which does not offer legal recourse.

The petition poses two questions: "(1) What are the minimal procedural due process protections required under the 14th Amendment of the U.S. Constitution before the government can act to reduce the water availability and perfected rights of agricultural users in the Imperial Valley? (2) Does a California court's decision legitimizing the use of automatic validation 'by operation of law' effectively rewrite the laws of eminent domain and inverse condemnation and amount to either a violation of the Takings Clause of the Fifth Amendment or of substantive due process?"

This case highlights the growing conflict between differing water users - here urban users versus agricultural users. Water-related legal challenges likely will increase as water scarcity concerns emerge.

E. Lynn Grayson is a partner in Jenner & Block's Chicago office and a member of the Firm's Environmental, Energy and Natural Resources Law, Climate and Clean Technology Law, Defense & Aerospace and Environmental Litigation Practices. Ms. Grayson is AV Peer Review Rated, Martindale-Hubbell's highest peer recognition for ethical standards and legal ability. Ms. Grayson has been recognized as one of The Best Lawyers in America, an Illinois Super Lawyer and Lawdragon magazine named Ms. Grayson to its "New Stars, New Worlds" list of 500 attorneys who are "carving the path to the new heights of the legal profession." Chambers USA and Leading Lawyers Network have recognized Ms. Grayson as one of the country's leading environmental lawyers as recommended by a peer review process.

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