The Ninth Circuit Court of Appeals has allowed members of the building industry to intervene in a lawsuit that environmentalists filed regarding the San Diego Multi-Species Conservation Program (MSCP). In overturning a district court ruling, the Ninth Circuit held that Pardee Construction, the Building Industry Legal Defense Foundation, the National Association of Home Builders, the California Building Industry Association and the Building Industry Association of San Diego adequately demonstrated that their interests were at stake in the lawsuit and that the government agencies that had been sued would not necessarily represent the builders' interests. The San Diego MSCP is possibly the broadest plan of its type in the country. Drafted to meet the dictates of habitat conservation planning under federal law, and natural communities conservation planning under state law, the plan addresses scores of species and about 900 square miles in unincorporated San Diego County, the City of San Diego and other cities. It sets aside 171,000 acres for permanent habitat protection. The plan also provides a basis for jurisdictions to adopt subarea plans. After adopting the MSCP and a subarea plan, San Diego signed an "implementation agreement" with the U.S. Fish & Wildlife Service and the California Department of Fish & Game. The implementation agreement gives the city the power for 50 years to allow "incidental take" of endangered and threatened species to accommodate a development project that meets the requirements of the various plans. In December 1998, the Southwest Center for Biological Diversity and 30 other environmental groups sued federal and city officials. The environmentalists challenged the formulation, approval and implementation of the MSCP, San Diego's subarea plan, the implementation agreement and San Diego's incidental take permit. Environmentalists took specific issue with the treatment of vernal pools — seasonal puddles that provide habitat for five endangered plant species and two species of endangered fairy shrimp. In June 1999, Pardee and the building trade groups filed a request to intervene in defense of the lawsuit. The environmentalists opposed the request while the government remained neutral. Federal Circuit Judge Irma Gonzalez denied the request for a variety of reasons. But the unanimous three-judge panel of the Ninth Circuit reversed Gonzalez and allowed the builders to help defend the suit. In arguing to become intervenors, Pardee said that it had five projects that rely on the plans, and members of the organizations said they have developed land based on the plans. The prima facie showing of an interest was enough for the builders to be allowed into a lawsuit, the Ninth Circuit held. "There is no doubt that the central goal of this action is the protection of the vernal pool species," Judge Ronald Gould wrote for the court. "Given the scope of the action, Applicants' projects that are in the pipeline for design and mitigation assurances and approval under the may be affected whether or not they impacted vernal pool species." Furthermore, the city and federal governments have different interests than do the builders, the court ruled. "Just as the City could not successfully negotiate the Plans without some private sector participation from Applicants, so too the City in this case cannot be expected successfully to safeguard Applicants' legally protectable interests," Gould wrote. The case heads back to the trial court level for further proceedings. The Case: Southwest Center for Biological Diversity v. Ken Berg, No. 99-56627, 01 C.D.O.S. 8453, 2001 DJDAR 10457. Filed September 27, 2001. The Lawyers: For Southwest Center: Neil Levine, Earthlaw, (303) 623-9466. For the builders: John C. Eastman, Claremont Institute Center for Constitutional Jurisprudence, (714) 628-2587.

When taking property by eminent domain, a city does not have to pay for the property's value as a potential garbage dump, the Third District Court of Appeal has ruled. The court held that the farmland's value as a landfill was too speculative under eminent domain law. The case involved the City of Stockton's condemnation of land owned by Albert Brocchini Farms. Prior to the trial to determine the property's value, the city asked the court to prohibit the testimony of a Brocchini expert regarding the property's value as a landfill. The city argued that the expert failed to establish the likelihood of a private developer receiving permits to open a landfill on the site, and that the expert made speculative assumptions regarding landfill operating costs and income. Brocchini countered that public and private landfills sit adjacent to the property in question. Brocchini also contended that a landfill was analogous to land with mineral rights, which must be considered when determining property value. Brocchini argued that private parties in the trash business use the discounted cash value for determining property value. San Joaquin County Superior Court Judge Duane Martin ruled for the city, calling the expert's analysis too speculative. The appellate court agreed. A fair value to be paid during an eminent domain procedure may take into account rental income from the property itself, but not income from business conducted on the property, the court held. In this case, the property owner sought compensation for a hypothetical business on the property, which the court viewed with skepticism. The court further ruled that a proposed landfill was nothing like property with mineral rights. Mineral interests "are a commodity with an intrinsic value," Justice Rodney Davis wrote for the unanimous three-judge panel. The market for a landfill, however, is volatile and affected by the awarding of collection franchises, public opposition to siting, and the efficacy of conservation and recycling efforts. "Under these circumstances, a claimed expertise at fixing a value is chimerical," Davis wrote. The court also considered an appeal from Stockton. The city had allowed Brocchini to continue farming the land until June 1997, 14 months after an order of possession took effect. Judge Martin ruled that Brocchini Farms was entitled to interest on the judgment during those 14 months, as the company was not paid until it surrendered the property. The city argued that the interest should have been offset by consideration for Brocchini's use of the property. Brocchini argued — and the trial court agreed — that the offset was itself offset because Brocchini lost money on its final crop of alfalfa. The Third District reversed the trial court on this point. Whether or not Brocchini made money while continuing to occupy the land was irrelevant, the court ruled. The city was entitled to the offset under Code of Civil Procedure § 1268.330, and there was no basis for the trial court to limit the offset. The law even presumes the offset amount to be equal to the rate of interest unless there is evidence otherwise. Such evidence did not exist in this case, the court ruled. The Case: City of Stockton v. Albert Brocchini Farms, Inc., No. C034813, 01 C.D.O.S. 8016. Filed September 10, 2001. The Lawyers: For Stockton: Richard Denhalter, city attorney, (209) 937-8333. For Brocchini: John McKinley, Brown, Hall, Shore & McKinley, (209) 477-8171.

In the clearest decision to date on antiquated subdivisions, the First District Court of Appeal has ruled that subdivision maps recorded prior to the first version of the Subdivision Map Act in 1893 do not create legal parcels. "Despite the bold vision of those who created them, such early subdivision maps — if drawn and recorded before 1893 — do not create legal parcels within the meaning of California's Subdivision Map Act," Justice James Marchiano wrote for court. The case, which stems from an 1865 map in Sonoma County, appears to resolve what has been one of planning's stickiest issues — the legal status of "paper subdivisions" that were recorded with no review and often without regard to topography or provision of public services. An estimated 400,000 to 1 million paper lots exist in California, many in coastal counties. "It really was an unclear area. It was like dancing on the head of a pin," said Les Perry, who represented landowners Jack and Jocelyn Gardner in the case. Perry, who said he will seek a state Supreme Court review of the decision, said he was "disappointed, but not surprised" by the ruling. Both Perry and Sonoma Deputy County Counsel Sue Gallagher, who defended against the lawsuit, agreed that the clear facts of the case made it a good one for resolution of the issue. "It's quite important for us and quite a few other counties," Gallagher said. "We have many other old maps here in Sonoma County from the mid- and late-1800s." Other recent cases have not been so clear-cut. Last year, the Second District Court of Appeal ruled in a complicated case from Santa Barbara County that pre-1893 subdivisions do not exist unless the parcels therein have been subject to a transfer of title at some point. (Circle K Ranch Corp. v. Board of Supervisors of the County of Santa Barbara, No. B124996, see CP&DR Legal Digest, May 2000.) However, the state Supreme Court ordered that decision depublished. The Second District tackled another antiquated subdivision case this year but ruled that the plaintiff did not have standing to bring the lawsuit. (County of San Luis Obispo v. Superior Court, 2001 DJDAR 6739, see CP&DR Legal Digest, August 2001.) A few important cases have touched on the issue of antiquate subdivisions, but none dealt with it directly. The state Supreme Court came close in the landmark case of Morehart v. County of Santa Barbara, (1994) 7 Ca.4th 725. The parcel in question in Morehart appeared on an 1888 map. However, the county conceded that the lot existed and the question was whether the Subdivision Map Act's merger provision applied. The state high court "explicitly declined to decide the issue of whether a pre-1893 antiquated map ‘creates' a legal parcel …" Justice Marchiano wrote in the case at hand. This case was brought by the Gardner family, which owns about 158 acres west of Sebastopol. The property is depicted on a 90-lot map recorded in 1865 by landowner S.H. Greene. The Gardners' property contains two full lots and portions of 10 others depicted on the Greene map. These days, the site is zoned Resource and Rural Development. It contains steep slopes and is the subject of a timber harvest plan. In 1996, the Gardners applied for 12 certificates of compliance for their lots. County planners denied the application, a decision that both the Planning Commission and the Board of Supervisors upheld. The board found that recognizing the old map would undermine "rational land use planning." So the Gardners filed a lawsuit, alleging that the Subdivision Map Act's grandfather provision covered the Greene map. Sonoma County Superior Court Judge Knoel Owen ruled for the county. A unanimous three-judge panel of the First District, Division One, agreed. The appellate court found that the grandfather clause was inapplicable. "The Legislature intended the grandfather clause to apply to subdivisions approved under prior versions of the Act, i.e., to exempt from the current Act those subdivisions established in compliance with or exempt from laws then in effect. The Legislature, with its strenuous emphasis on local control and approval of subdivisions, did not intend the grandfather clause to apply to the pre-1893 legal ‘State of Nature' when no subdivision statute was in existence," Marchiano wrote. He continued, "The Map Act does not reveal a legislative intent to exempt recorded subdivision maps which were not subject to any subdivision law from a time when there was little land use regulation. … f the Legislature wished to exempt antiquated maps from the Map Act, it could have done so in clear and express language. Grandfathering does not spring up by inference." To make his point, Marchiano noted that every version of the Subdivision Map Act since 1907 has had a grandfather clause — but the original act from 1893 did not. If lawmakers wanted to grandfather in pre-1893 maps, it would have done so at the time, he wrote. Gallagher said she was happy to get this issue resolved. But, she said, there still exists the question of validity of maps recorded between 1893 and 1929 because not until the 1929 revision of the map act was local government review and approval required. Prior to that time, the map act was concerned with the mechanics of drawing and recording maps, not whether the subdivisions were a good idea. The Case: Jack A. Gardner v. County of Sonoma, No. A093139, 01 C.D.O.S. 8793, 2001 DJDAR 10909. Filed October 11, 2001. The Lawyers: For Gardner: Leslie Perry, Perry, Johnson, Murray, Anderson & Miller, (707) 525-8800. For the county: Sue Gallagher, deputy county counsel, (707) 565-2421.

It was surprising news when the Center for Biological Diversity announced it had signed an out-of-court agreement regarding endangered species with its longtime adversaries at the U.S. Fish & Wildlife Service. With a decade-long winning streak in court, the Tucson-based Center has become arguably the most important entity in the Endangered Species Act debate. Why wouldn't the organization want to continue kicking butt in court, especially since Gail Norton had replaced Bruce Babbitt as head of the Interior Department? Many of the answers to that question are surprisingly simple and are based largely on both sides' concern over some species that could disappear within the next 12 months. And, it is important to note that although the Center and the federal government have become friends this one time, there is no reason to believe conflicts will not continue in the future. In fact, the Center has filed new lawsuits against the federal government over protection of species since the agreement was announced at the end of August — and the agency has decided not to place on the endangered list one of the species that was the subject of the agreement. The agreement has drawn mixed reviews, with developers' reactions ranging from cautious to hostile, and environmentalists generally saying neutral or good things. The National Association of Home Builders criticized the agreement, saying that the Interior Department needs to focus on revising the Endangered Species Act. Under the agreement, the Center gave the Fish & Wildlife Service more time to make decisions on eight critical habitat designations for species that have already been declared endangered or threatened. The Fish & Wildlife Service agreed to use the $600,000 it would have spent on the critical habitat designations for making decisions on the status of 29 species. The federal officials agreed to make emergency listings for three species, make final decisions on 14 candidate species, propose eight other species for protection, and make decisions on four Endangered Species Act petitions. This activity marks a turnaround from November 2000, when the Fish & Wildlife Service announced a moratorium on new listings. Since the agreement was signed, the agency has announced decisions and rules regarding a number of the involved species, which include five animals and one plant that live in California. Those actions and others to come in the near future would not have occurred without the agreement, said Chris Tollefson, a spokesman for the Fish & Wildlife Service in Washington, D.C. Everyone agreed that the species involved appear to have suffered major losses in recent years and need immediate attention, he said. "It really was not adversarial at all," said Kiernan Suckling, the Center's executive director. "We and the Fish & Wildlife Service had a common concern, which was that species are not getting protected." One of the major effects of the settlement was to highlight the Fish & Wildlife Service's lack of funding to carry out the Endangered Species Act. The agency estimates that tackling the full listing backlog — including implementation of 83 court orders — would cost $120 million. Yet the agency's listing budget this year is $6.3 million, and the agency has hesitated to ask for a major appropriation increase. The agreement "would never have been necessary if, over the years, the Congress had provided Interior with the resources it needed to enforce the act in a systematic, timely way," The New York Times opined in an editorial. Added David Henkin, a Honolulu-based attorney for Earthjustice Legal Defense Fund, "What this agreement really underlines is the need for the Fish & Wildlife Service to acquire sufficient funding for its listing program." Suckling said that for all the disputes his organization has had with the Fish & Wildlife Service, he believes the agency really does care. "This is an agency that is under tremendous political pressure," Suckling said. Most of that pressure has been applied by officials from the West who believe strongly in private property rights. But recently, U.S. Sen. Harry Reid (D-Nevada) has led a contingent urging greater funding for Endangered Species Act programs. Curiously, Suckling believes that species advocates may have more success on the ground — especially in California — under the Republican administration than under the regime of Bill Clinton and his Interior secretary, Bruce Babbitt. Babbitt tried to achieve consensus and compromise on Endangered Species Act issues, and was the major proponent of Habitat Conservation Plans, especially in California (see CP&DR, June 2001, March 1998, December 1997, April 1994). But hard-core environmentalists have criticized HCPs as political answers to scientific problems, and have railed against HCPs' "no surprises" provision, under which landowners cannot be required to spend more money or set aside additional resources for species covered by the HCP. Suckling said that Babbitt was never interested in the type of deal that Norton was willing to cut after only four months of negotiation. Suckling argues that Babbitt wanted to appease California developers, some of whom he has gone to work for since leaving office. On the other hand, Bush was trounced in California during the election and has shown little interest in reaching out to anyone in the state. "Oddly, I think California developers may have less influence under the Bush administration than they did with the Clinton administration," Suckling said. So, does the settlement signal a new truce among an odd couple? "We're hopeful it will set a tone for the future," Fish & Wildlife Service spokesman Tollefson said. "We'd like to make the Endangered Species Act work better." The agency, he said, has been inundated with litigation and has spent most of its money on court orders and settlements from those lawsuits — rather than on systematically addressing rare species. "As has been proven, the litigation route is not the most effective. It doesn't benefit species," Tollefson said. Suckling spoke of a "new trust" and said the agreement shows that the Center is willing to work with federal regulators. But Suckling made clear that future activities — or inactivity — of the Interior Department might be the subject of legal action. "If lawsuits have become part of the listing system, it's only because politics have taken up residency in the heart of the listing system. Lawsuits are the one thing we can use to counter that," he said. Nor should builders and government officials consider existing HCP's safe, Suckling vowed. Some of the new listings should force changes to HCPs, especially Southern California plans that account for the yellow-legged frog, he said. "We're not going to accept that a deal is a deal even if it means the extinction of a species. That is precisely why we have an Endangered Species Act," Suckling said. Contacts: Kieran Suckling, Center for Biological Diversity, (360) 468-2810. Chris Tollefson, U.S. Fish & Wildlife Service, (202) 208-5634. David Henkin, Earthjustice Legal Defense Fund, (808) 599-2436. Center for Biological Diversity's settlement website: www.sw-center.org/swcbd/press/settlementesa.html

A new state program intended to spur housing construction is being watched closely by planners and housing advocates. Supporters of the Jobs-Housing Balance Program believe it could spur cities and counties to approve needed housing developments, but some skeptics wonder if it will simply provide money to jurisdictions that would permit new homes anyway. Even though the program has yet to be implemented, it has already suffered a significant budget reduction. The 2000-01 state budget contained $100 million for the program, money that remains available. The governor's original proposal for the 2001-02 budget contained another $200 million. However, when the electricity situation drained state funds and tax revenues fell below projections, the Davis administration eliminated the proposed $200 million and cut $40 million from the original allocation. This leaves just $60 million, which Department of Housing and Community Development officials intend to start granting during 2002. To be eligible for grants ranging from about $1,000 to $4,900 per unit, a city or county must issue permits for at least 12% more units during 2001 than its annual average from October 1997 through September 2000, and it must have a state-approved housing element. Jurisdictions in counties with the highest job growth (the Bay Area, the Los Angeles area, and San Diego and Sacramento counties) would receive the largest grants. The program contains additional incentives for permitting multi-family units, affordable housing and infill development. "This is the first time that there has been money made available that rewards good behavior. It's a milestone," said Cathy Creswell, HCD Deputy Director. "We think, clearly, that looking at how you incent jurisdictions is critical to improving housing conditions across the state." In the past, the state's primary means of forcing affordable housing construction was to withhold funding from cities and counties for affordable housing projects – a weapon that few people see as effective. To make the Jobs-Housing Balance pot even sweeter, the Legislature this year modified the program to allow cities and counties to use program grants for any purpose. State Sen. Tom Torlakson (D-Pittsburg), the author of the original Jobs-Housing Balance legislation in 2000 also carried this year's legislation, SB 784, which modified the program. Originally, SB 784 was the vehicle for the additional $200 million. Although that money dried up — and the state budget picture for next year already looks grim — Torlakson and the Davis administration maintain that they are committed to this new program, in part because it provides one of the few incentives available to local governments for "smart growth." What sets the program apart from typical HCD programs is that the Jobs-Housing Balance program addresses housing needs within a larger framework that also considers job growth, land preservation and affordability, supporters say. Others, though, are not sure what to make of the program. Tom Jones, executive director of the California Futures Network (a coalition of environmental, neighborhood, business and transportation groups), declined to predict the program's success rate, but added a note of caution. "Our caution about it is that the program tries to address the supply problem — and there is one, no doubt about that — but we don't know what kind of supply this program will yield," Jones said. Julie Snyder, a lobbyist for the nonprofit organization Housing California, said determining whether the Jobs-Housing Balance Program truly induced housing development in job-rich areas will require a "fairly sophisticated analysis." Many of jobs created in the state during recent years pay less than $30,000 annually, which is not enough to live on in most urban areas, Jones said. "The big housing-jobs imbalance is for working lower- to middle-income people who took one of these new jobs that were created and can't find housing," he said. Other people argue that there is not enough money in the program to force cities to provide their fair shares of low- and moderate-income housing. Still, Creswell said that the program's grants — say a few hundred thousand dollars that could go toward a new park – could help local decision-makers overcome typical resistance to affordable housing development. And the requirement that qualifying cities and counties also have an approved housing element "is very consistent with the notion that the state's housing element law is the foundation for planning well in California," she said. Creswell believes there is widespread interest in the program. Through a series of workshops and other means, HCD officials have contacted representatives of more than 200 cities and counties. How far the $60 million will go is unknown. This year's legislation did make the program into an annual one. It appears housing will remain a topic of discussion in Sacramento during the months that lawmakers are on break. A working group is meeting every few weeks to discuss SB 910 (Dunn), which is intended to penalize cities and counties that do not comply with the housing element law. Dunn promises to pursue some form of the bill next year. Also, Torlakson and Democratic Assemblymen Howard Wayne and Alan Lowenthal have convened a Housing and Land Use Working Group that includes about 20 representatives of local government, housing groups, environmental organizations, developers and business. One recent session addressed fiscal and non-fiscal incentives for construction of infill housing. Although the Housing and Land Use Working Group has met only a few times, some participants believe it could produce legislation for 2002. It is probably significant that the lawmakers themselves have attended the meetings. And even a Republican — Assemblyman John Campbell — has shown interest in the working group. Contacts: Cathy Creswell, Department of Housing and Community Development, (916) 445-4775. Sen. Tom Torlakson's office, (916) 445-6083. Tom Jones, California Futures Network, (510) 238-9762. Julie Snyder, Housing California, (916) 447-0531. HCD Jobs-Housing Balance Program website: www.hcd.ca.gov/ca/jhbig/

An environmental impact report for a proposed Oakland International Airport expansion has been found flawed on numerous grounds by the First District Court of Appeal. The court held that the Port of Oakland, which operates the airport, relied on outdated air pollution information, did not support its decision not to study health risks related to that air pollution, and failed to analyze adequately nighttime noise impacts. In an unpublished portion of the opinion, the court held that the Port improperly delayed crafting a plan to mitigate harm to the western burrowing owl. The unanimous three-judge panel also rebuked Solano County Superior Court Judge William Jensen for continuing to issue rulings in the case after appeals had been filed, saying that the rulings greatly lengthened the time needed to resolve the case. In December 1997, the Board of Port Commissioners approved the Airport Development Plan (ADP) and an EIR. The ADP outlined plans to consolidate and reconfigure two existing passenger terminals, add 12 gates, widen and reconfigure access roads, build a 6,000-space parking garage and expand cargo facilities. The expansion was intended to accommodate a near doubling of flights between 1994 and 2010. Soon after the Port's decision, the cities of Alameda and San Leandro and two citizens groups sued over the adequacy of the EIR. In February 1999, Judge Jensen found that the EIR's discussion of alternatives was lacking, and that a new analysis of cumulative impacts was needed. The environmental groups, Alameda and the Port all appealed the ruling. The First Appellate District, Division Two, found even more flaws in the EIR. The published portion of the court's opinion dealt at length with air pollution and noise. The EIR concluded that emission of toxic air contaminants (which the court called TACs) would increase, and that the contaminants may cause cancer and other health effects. But the EIR said the environmental effects could not be known because no standardized protocol for determining risks existed. However, the court found that the Port improperly relied on a 1991 technical guide from the California Air Resources Board (CARB) and ignored an updated, 1994 technical document from CARB despite CARB's insistence that the latter report provided "the most accurate characterization of jet exhaust available." The court held that this omission "is such as to prevent a decisionmaker and the public from gaining a true understanding of one of the most important environmental consequences of increasing the number of flights." The court went on to reject the EIR's conclusion that the health effects of air contaminants were unknowable. The court noted that after the Port published the draft EIR, airport opponents had provided the Port with input from government and private experts and even hired a consultant to prepare a sample health risk assessment. Yet the final EIR contained "virtually no reference" to this material. "Voluminous documentary evidence was submitted to the Port supporting the assertion that an approved and standardized protocol did exist which would enable the Port to conduct a health risk assessment," Justice Ignazio Ruvolo wrote for the court. Citing Public Resources Code § 21080.3, subd. (a), Ruvolo continued, "The Port has not cited us to any reasonably conscientious effort it took either to collect additional data or to make further inquiries of environmental or regulatory agencies having expertise in the matter. These failures flaunt the requirement that the lead agency consult ‘with all responsible agencies and with any other public agency which has jurisdiction by law over natural resources affected by the project.'" Ruvolo went on, "The fact that a single methodology does not currently exist that would provide the Port with a precise, or ‘universally accepted,' quantification of the human health risk from TAC exposure does not excuse the preparation of any health risk assessment — it requires the Port to do the necessary work to educate itself about the different methodologies that are available." The court also rejected the Port's contention that it could call air pollution a significant impact and simply adopt an overriding consideration. "This approach," Ruvolo wrote, "has the process exactly backward and allows the lead agency to travel the legally impermissible easy road to CEQA compliance." The court was equally dissatisfied with the EIR's treatment of noise. The EIR concluded that — even though there would be an increase in nighttime flights under the expansion plan — noise levels would actually decrease because federal law required air carriers to convert to quieter jet engines by 2000. For its study, the Port adopted a fixed standard of 65 decibels CNEL, which is essentially an average of 65 decibels over a 24-hour period. This noise level is often considered compatible with residential living. However, the plaintiffs raised many questions about the noise impacts occurring within the 65-decibel threshold of acceptability. During EIR adoption, many citizens had complained that the EIR did not address increased nighttime flights and suggested that the decibel increases should be considered significant even though they still fell within the 65-decibel threshold. Acoustical engineers urged the Port to study single-event noise levels from the passing of an airplane over homes. In court, airport opponents said the Port's reliance solely on the CNEL standard did not provide a true picture of noise impacts. The court agreed, holding that CEQA Guidelines urge a lead agency to adopt site-sensitive thresholds of significance for noise. Thus, the Port should not have relied on an ironclad standard of 65 decibels CNEL. " he Port concedes that implementation of the ADP will increase the existing noise levels for quiet East Bay neighborhoods. Despite this acknowledgement, the EIR contained no quantitative discussion of ambient noise levels in any nearby community," Ruvolo wrote. He continued: " mplementation of the ADP could increase a community's nighttime noise level to 64.9 CNEL, and under the sole criterion of the CNEL metric, this increase would not create a significant impact for purposes of CEQA. This conclusion is derived without any meaningful analysis of existing ambient noise levels, the number of additional nighttime flights that will occur under the ADP, the frequency of those flights, to what degree single overflights will increase noise levels over and above the existing ambient noise level at a given location, and the community reaction to aircraft noise, including sleep disturbance. … CEQA requires that the Port and the inquiring public obtain the technical information needed to assess whether the ADP will merely inconvenience the Airport's nearby residents or damn them to a somnambulate-like existence." In the unpublished part of the decision, the court held that the EIR's discussion of aircraft safety and growth inducements was adequate. But the court ruled that the Port improperly postponed a plan to protect the western burrowing owl. The court also found that Judge Jensen should not have discharged a writ of mandate after his original ruling, which he did when the Port adopted a supplemental EIR. Finally, the court remanded the issues of attorneys' fees, suggesting that airport opponents were due hundreds of thousands of dollars. The Cases: Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners, City of San Leandro v. Board of Port Commissioners, City of Alameda v. Board of Port Commissioners, Nos. A086708, A087959, A089660, 01 C.D.O.S. 7700, 2001 DJDAR, 9453. Filed August 30, 2001. The Lawyers: For airport opponents: John Shordike, (510) 841-5056. For the Port: Stephen Kostka, McCutchen, Doyle, Brown & Enersen, (925) 937-8000.

The City of Salinas has dropped its lawsuit against San Jose regarding approval of Cisco Systems' plan to build a research park in Coyote Valley. Salinas filed the lawsuit last year after San Jose approved the 688-acre research park, but the city in September agreed to dismiss the suit in exchange for a redress of the area's housing, transportation and education needs. (See CP&DR, June 2000.) The settlement calls for the property owners, Coyote Valley Research Park LLC, to pay $250,000 for a regional transportation study and will limit the size of the research campus until San Jose addresses the area's housing issue. Cisco will also contribute up to $1 million in matching funds if the Monterey County region establishes an affordable housing trust. In addition, San Jose will consider extending Caltrain to Salinas. The 20,000-worker campus still faces three similar lawsuits from groups opposing the project. El Toro airport foes in September delivered 175,000 petition signatures—twice the amount needed—that would force another vote on fate of the former Marine Corps Air Station in Orange County. But the validity of the signatures on the Orange County Central Park and Nature Preserve Initiative is up in the air. Orange County Superior Court Judge James Gray earlier ruled the petitions invalid because the ballot summary understated the extent of possible development under the initiative. The ruling is pending a state appeals court decision on whether the language of the ballot measure is misleading. The airport plan calls for a new airport that would serve up to 29 million passengers, but opponents support transforming the former base into a "great park" that would house — among other things — schools, health-care facilities, museums and an urban park. If the measure appears on the March 2002 ballot, it will mark the fourth time Orange County voters have been asked to decide the fate of the former base. (See CP&DR In Brief, May 2000, CP&DR Local Watch, November 1999) A Huntington Park casino owner was charged in September with bribing Huntington Park Mayor Richard Loya. The FBI charged Harry Hwang of bribing Loya with $5,000 to gain Loya's support on a proposed $66 million entertainment and retail complex and to win his vote for the city to forgive a $40,000 debt owed by the casino. Loya first reported Hwang to authorities on June 10 and worked with the FBI to record conversations between Hwang and himself. Hwang pleaded not guilty. He faces up to 10 years in prison and a $250,000 fine if convicted. He may face more charges of bribing other city council members. The Oakland Port Commission chose the development group of Signature Properties and Reynolds & Brown to transform a 60-acre industrial area on the Oakland Estuary into a residential and retail neighborhood. The development is part of the port's effort to increase housing and retail development and reconnect people with the waterfront area. (See CP&DR Economic Development, September 2001.) The commission said it chose Signature and Reynolds & Brown over the Shorenstein Co. and Interland Growth partnership because of the former's emphasis on residential development. The development group said it would not seek public funds for the $500 million project. In addition to developing the 60 acres, Signature will also come up with a master development plan for the entire 120 acres the port owns along the estuary. The Board of Forestry in September adopted the new rule that requires environmental review for before loggers cut trees that predate the 1800s. The board for the first time defined "old-growth" trees as those existing "before 1800 A.D." and measuring at least 48 inches in diameter at the stump, or at least 60 inches for redwoods. Under the new rule, timber owners wishing to cut down old-growth trees must hire a state-registered forester to conduct an assessment of the trees' wildlife and ecological value. Environmentalists say the regulation allows too many exemptions and fails to protect the state's ancient forests. State officials concede that the regulation is not a ban on cutting down trees, but reduces careless cutting. Environmental groups including the Sierra Club say that the new rule is an attempt by Davis administration to thwart a planned 2002 statewide ballot initiative that would require tougher rules against old-growth cutting. The Los Angeles City Council has unanimously approved plans for a $1 billion shopping, dining and entertainment district around downtown's Staples Center. Council members expressed concern over a much-needed hotel in the area that developers are reluctant to build. And developers plan to seek a public subsidy for the 1,200-room hotel project. The development agreement calls for the construction of a four-star hotel, a 7,000-seat arena, two apartment towers, parks and office space. (See CP&DR Deals, August 2001.) The Califia development project in Lathrop was dealt another setback when San Joaquin County Superior Court Judge Bob McNatt in late August ruled that the city must perform new environmental studies before building a sewage treatment plant. The plant would serve the nearby Califia development, which was proposed to have four theme parks, retail development and 8,500 homes. But the 290 acres of farmland that would hold the treatment plant was hit by severe floods in 1997, one year following a feasibility study conducted by the city. The judge ruled that new studies considering the public health risk must be performed. This is not the first hurdle for Califia, formerly called Gold Rush City. Citing lack of investor funding, developers announced in August that the planned theme parks — which had attracted so much early attention — would likely be replaced with office buildings. And the Sierra Club successfully sued the San Joaquin LAFCO over its 1996 approval of Lathrop's annexation of land that was to be developed. (See CP&DR Legal Digest, January 2001, Local Watch, August 1996.) Embattled San Bernardino County Supervisor Jerry Eaves was indicted by a federal grand jury in late August for allegedly accepting bribes in exchange for approving billboards on county-owned land in Colton. The indictment came just two months after Eaves — who continues to hold office — pleaded no contest to state charges of perjury and illegally accepting gifts. Federal prosecutors have charged Eaves with 14 counts of bribery, conspiracy to pay and accept bribes and mail fraud. Eaves pleaded not guilty and a trial is scheduled to begin November 20. Federal authorities also charged William "Shep" McCook of Newport Beach for giving Eaves about $6,000 worth of trips to Las Vegas, and former Colton City Councilman James Grimsby with accepting $25,000 in cash. Grimsby and McCook have pleaded not guilty. But Laguna Beach businessman Allan Steward, who allegedly bribed Grimsby, Colton Councilmen Abe Beltran and Donald Sanders, and former Mayor Karl Gayton all have pleaded guilty in the bribes-for-billboards scheme. The State Auditor has concluded that the California Energy Commission has not acted significantly slower on power plant applications than states with similar review processes. The auditor examined 23 applications submitted to the Energy Commission from 1990 through 2000 under the standard 12-month review process. The auditor found that the Energy Commission went beyond the 12-month deadline by more than a month 10 times for a variety of reasons. In every instance, the applicant failed to provide required information in a timely manner. Slow local, state and federal reviewing agencies and protests by project opponents also caused delays. The average approval time for all projects was 14 months, after an average of 2.5 months spent reviewing the adequacy of an application. Minnesota, Florida and Connecticut took seven to 15 months to approve applications. Oregon took an average of 30 months to decide power plant proposals, according to the auditor's report released in August. The auditor also found that Energy Commission's process is quicker than reviews conducted under the California Environmental Quality Act or the Permit Streamlining Act. The Energy Commission in late September unanimously approved the 600-megawatt Metcalf Energy Center in south San Jose's Coyote Valley. The decision came three months after the San Jose City Council, under intense political pressure, dropped its opposition to the project. Still, residents of Coyote Valley and the Santa Theresa district continue to complain about potential air pollution from the plant. They have appealed to the Bay Area Air Quality Management District and have vowed to file a lawsuit. (See CP&DR, July 2001, March 2001.)

An en banc panel of the Ninth U.S. District Court of Appeals has upheld an Indian tribe's right to regulate timber harvesting on privately owned land within an Indian reservation. The ruling was a reversal of a ruling issued last year by a three-judge panel of the Ninth Circuit, and an affirmation of the district court's original decision (see CP&DR Legal Digest, November 2000). The case involved a small timber harvest in the Hoopa Valley Indian Reservation in Humboldt County. The Hoopa Valley Tribal Council determined that Roberta Bugenig, a non-Indian who owns fee title property within the reservation, could not harvest trees on her land, which is near a ceremonial site. Bugenig sued in federal court, arguing that the Tribal Council did not have jurisdiction over her property. U.S. District Court Judge Claudia Wilken ruled for the tribe. On appeal, a three-judge panel of the Ninth Circuit reversed Wilken, holding that Congress did not give specific authority to the Hoopa Valley Tribe. But in an 8-3 ruling, a full panel of Ninth Circuit judges reversed the decision again. In the latest ruling, the court held that the congressionally approved Hoopa-Yurok Settlement Act of 1988 gave the Hoopa Valley Tribe's constitution the full force of law. The tribe's constitution makes clear that the Tribe has jurisdiction over all lands within the confines of its reservation established in 1876, the court also held. Bugenig's land falls within those confines. The case is Roberta Bugenig v. Hoopa Valley Tribe, No. 99-15654, 01 C.D.O.S. 7999 and was filed on September 11, 2001.

A general plan requirement that placed a one-mile buffer on private land around a landfill in Placer County was supported by evidence in the record even though there appeared to be no scientific basis for it, the Third District Court of Appeal has ruled. In an unpublished portion of the opinion, the Third District concluded that the county did not have to recirculate the draft general plan environmental impact report after choosing an alternative scenario that focused on concentrating development around existing communities, rather than creating four new towns away from existing communities. In an unusual twist, the lawsuit challenging the county's actions under the California Environmental Quality Act was actually brought by four developers who had hoped to build the new towns originally called for in the plan. The county's general plan proposals, developed in 1992 and 1993, included an infill scenario; an alternative in which most growth was accommodated adjacent to existing communities; and a "new town" scenario, in which most new growth was accommodated in four new towns located away from the existing communities. The county circulated a draft EIR on these scenarios and eventually chose the infill alternative. The county then prepared a final EIR on the infill scenario and adopted the general plan. Three development companies owning land in the new town areas – Placer Ranch Partners, Placer Ranch 160, and Stanford Ranch Inc. – then sued. They claimed, among other things, that the county's final scenario was so different from the scenarios originally proposed in the draft EIR that the draft should have been recirculated. They also challenged the imposition of a one-mile buffer around a landfill, which affected their property. After losing in the trial court, they appealed to the Third District Court of Appeal in Sacramento. The Third District issued a published opinion only on the landfill issue. The court acknowledged the developers' point that no scientific evidence existed on the record to support a one-mile buffer. However, the court noted that the county had presented other evidence. Among other things, the landfill could be viewed from a distance, and encroachment toward it might reduce its period of usefulness. Also, residents up to two miles away argued for the one-mile buffer. " ifferent witnesses had different opinions about the proper size of the landfill," the appellate court wrote. "While no scientific evidence was introduced to support a one-mile buffer, other substantial and relevant evidence supports the county's decision." The court also referenced Stubblefield Construction Co. v. City of San Bernardino, 32 Cal.App.4th 687 (1995), which, the court claimed, validated the opinions of nearby residents as an appropriate factor in making land-use decisions. In an unpublished portion of the opinion, the court rejected the developers' claim that the draft EIR should have been recirculated after the "four new towns" option was rejected. In essence, the developers complained that the draft EIR was not specific enough on the impact of the infill alternative that was eventually selected. "This claim is predicated on a misperception of the project at issue," the court wrote. "The EIR was not for a project to develop the four new towns; it was an EIR for a general plan update." Because a general plan is conceptual, "The EIR prepared in conjunction with that plan is not required to speculate about the effects of possible future development projects," the court wrote. In another unpublished section, the court rejected a variety of other alleged defects in the EIR. The Case: Placer Ranch Partners v. County of Placer, C032561, 01 C.D.O.S. 7657, 2001 DJDAR 9481. Issued July 30, 2001. Partially published August 29, 2001. The Lawyers: For Placer Ranch Partners and other developers: Maria Hummer and Donna Black, Manatt, Phelps, & Phillips, (310) 312-4121. For Placer County: Scott Finley, Deputy Council Counsel, (530) 889-4044.

Planning is essentially the process of analyzing people and places, and nothing informs that process more than the decennial Census. This past summer, California's newspapers were filled with the first important round of Census 2000 data – detailed information about population and housing counts, age and race profiles, and household size. This is called the "SF1" data – the Summary File 1 data, derived from the "short form" filled out by Americans in April 2000. We are about to feel the impact of a new flood of data. Already, the Census Bureau's more detailed "long form" survey data is available at the state level, and this fall it will be published for most large cities and counties in California. We will see more data released throughout 2002. This means that within about 12 months, city and county planners will have all Census 2000 data at their disposal. But Census 2000 data is not perfect, and that could affect the ability of local governments in California to analyze people and places in a meaningful way. In particular, the Census appears to contain a series of errors about two categories called "Special Places" and "Group Quarters." These errors could significantly affect basic statistics about cities and counties in California – including population and median income – and the Census Bureau appears to have no plans to correct the errors in the permanent data tables. Special Places is a catch-all category for dormitories, nursing homes, military barracks, and prisons (which are defined and tabulated as Group Quarters) and "difficult to enumerate" mobile home parks and large apartment buildings (which are tabulated with regular housing units). If the Census does not correctly account for Special Places, the mistake can skew the results significantly because they involve big blocs of residents. Relocating ‘Special Places' Most local governments did a good job in working with the Census Bureau to identify Special Places. But somewhere along the line, something went wrong. In many cases, residents of these dormitories, prisons, and other alternative living quarters got plopped in the wrong place by the Census Bureau. For example, on the University of Southern California campus, Census 2000 calculated that the population for the main campus dormitories was 246 persons – a huge drop from 2,750 in the 1990 Census. But the dormitories have not been torn down. They are still occupied and their residents completed the Census 2000 forms. At the same time, however, two adjacent off-campus blocks show large — but unlikely — jumps in population. What happened? In all likelihood, the dorms were "geocoded" incorrectly. At least these statistical errors occurred in the same city, Los Angeles. In other cases, people living in Special Places may be turning up in the wrong city altogether. Take the case of Soledad and Salinas as an example. Both are fairly poor cities in Monterey County's Salinas Valley. Soledad prison is located entirely inside the city limits of Soledad — as the Census Bureau's own TIGER mapping system shows. Yet the Census data shows only 51 people living in Group Quarters in Soledad. Meanwhile, 30 miles north, Salinas – which does not have a prison – lists 8,756 persons in "Institutionalized Quarters." Clearly, the Soledad prison population is erroneously included in the population of Salinas. Apparently, this type of problem is occurring all over the nation, although the Census Bureau is not quick to discuss it. This kind of error is a big deal to some California cities. The state went through a prison-building boom during the 1990s. Many cities deliberately annexed prisons to boost their population totals and, therefore, qualify for more state and federal funds, such as community development block grant money and state vehicle license fee revenue. The Census Bureau's Count Question Resolution Program (CQR) is underway, and if a local government provides evidence of an error, the Census Bureau will issue a "correction letter." That may correct the flow of state and federal funds. But it does not appear as if the Census plans to alter the SF1 tables already prepared and the Summary File 3 tables (SF3) for unincorporated areas, which will be released next year. Indeed, the CQR website (www.census.gov/dmd/www/CQR.htm) specifically states that the Census "will not make corrections to the data concerning the characteristics of the population and housing inventory" and "base files for the census will remain unrevised so that none of the standard Census 2000 data products will reflect corrections." If these changes are not made, the Group Quarters location error will permanently affect other statistics, such as per capita income, density, and age pyramids, that will be accessed from the Internet with little or no warning that the statistics include this error. All this means more work for local planners. The only way local governments can find these errors is to compare Census 2000 block counts to accurate, recent local maps and lists of Special Places — a painstaking process. More data on the way The SF1 block-level data already prepared are available from several websites, including the UC Berkeley Statewide Database (http://swdb.berkeley.edu/). SF1 files are segmented and often so large in urban counties they may not work with desktop software, and the geographic coding, table formats and content take some getting used to. The Census Bureau's main data source, American Factfinder (http://factfinder.census.gov) is more "conversational" and is a quick source of basic and comparative counts, but only down to the census tract level. Updates on the next round of Census releases — including the long-form sample data for cities and counties of at least 250,000 people — will be available at the C2SS website (http://factfinder.census.gov/home/en/c2ss.html). California planners should have access to long-form survey data this fall for 22 counties and the cities of Los Angeles, San Diego, San Jose, San Francisco, Long Beach, Fresno, Sacramento, Oakland, Santa Ana, Anaheim, and Riverside — representing most of the state's population.

In a 2-1 ruling, a Ninth U.S. Circuit Court of Appeals panel has ruled that federal agencies have the authority under the Clean Water Act to regulate "deep ripping" of wetlands by farmers. Sacramento developer Angelo K. Tsakopoulos had challenged the authority of the U.S. Army Corps of Engineers and the Environmental Protection Agency to regulate deep ripping on his Borden Ranch, which straddles Sacramento and San Joaquin counties. Deep ripping involves penetrating the restrictive layer of soil with four- to seven-foot long metal prongs that are dragged through the earth. Tsakopoulos intended to convert his 8,400-acre Central Valley ranch into vineyards and orchards and subdivide it into smaller parcels for sale. Deep ripping had to take place in order for vineyards and orchards to grow on the land. Since 1993, Tsakopoulos and the Corps have disagreed about the authority of the agency to regulate deep ripping in wetlands. Tsakopoulos began deep ripping in fall 1993 without a permit. The following spring, the Corps granted the developer a retroactive permit with conditions. Later in 1994, the Corps approved deep ripping on certain parts of Tsakopoulos's land, but forbade such activity in vernal pools. When the Corps discovered deep ripping had occurred in vernal pools, it immediately issued a cease and desist order. Nevertheless, Tsakopoulos continued deep ripping the wetlands. Finally, in March 1997, EPA investigators witnessed "fully engaged" deep rippers passing over wetlands. The EPA issued an Administrative Order on Consent for Tsakopoulos to resolve his alleged Clean Water Act violations. He in turn filed lawsuit. Tsakopoulos argued that deep ripping "does not constitute the addition of a pollutant" into wetlands because it is simply churning up soil and redepositing it in the same place. But the appellate court ruled that the argument is inconsistent with prior rulings and held that redeposits of materials can constitute an "additional pollutant" under the Clean Water Act. In his opinion, Judge Michael Daly Hawkins cited three cases, Rybachek v. United States Environmental Protection Agency, 904 F.2d 1276 (9th Cir. 1990), United States v. Deaton, 209 F.3d 331 (4th Cir. 2000), and Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 923 (5th Cir. 1983). " hese cases recognize that activities that destroy the ecology of a wetland are not immune from the Clean Water Act merely because they do not involve the introduction of material brought in from somewhere else," Hawkins wrote. The court ruled that the Clean Water Act gives the Corps the authority to prevent the conversion of wetlands to dry lands. "In this case, Tsakopoulos's activities were not intended simply to substitute one wetland crop for another, rather they radically altered the hydrological regime of the protected wetlands … it was entirely proper for the Corps and the EPA to exercise jurisdiction over Tsakopoulos's activities," Hawkins wrote. The district court found that Tsakopoulos had committed 358 violations of the Clean Water Act, set the penalty at $1.5 million and allowed Tsakopoulos to avoid $1 million of the penalty if he performed restoration measures. Tsakopoulos challenged the penalty in the appellate court. Based on the U.S. Supreme Court's decision earlier this year in Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001) (see CP&DR Legal Digest February 2001), the federal government conceded that it lacked jurisdiction over the vernal pools. Accordingly, the Ninth Circuit upheld the lower court's ruling that Tsakopoulos violated the Clean Water Act by deep ripping in protected wetland swales, but it reversed the lower court's findings of Clean Water Act violations in the vernal pools. The Ninth Circuit ordered a limited remand to the lower court for recalculation of the penalty. In his dissent, Judge Ronald M. Gould wrote that Congress does indeed have the power to regulate deep ripping, but that authority in itself does not imply Congress exercised the power. Gould cited National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998), in which the court ruled that deep ripping does not involve any "significant" removal or addition of material to the site. "Although we interpret the prohibitions of the Clean Water Act to effectuate Congressional intent, it is an undue stretch for us, absent a more clear directive from Congress, to reach and prohibit the plowing done here, which seems to be a traditional form of farming activity," he wrote. Gould went further, writing that the district court was mistaken in its finding that the activities of Tsakopoulos required a permit and violated the Clean Water Act. He wrote that the majority opinion "makes new law by concluding that a plow is a point source and that deep ripping includes discharge of pollutants into protected waters." The Case: Borden Ranch Partnership v. United States Army Corps of Engineers, No. 00-15700, 01 C.D.O.S. 7056. Filed August 15, 2001. The Lawyers: For Borden Ranch: Arthur F. Coon and Edmund L. Regalia, Miller, Starr & Regalia, (925) 935-9400. For the Corps of Engineers: Sylvia Quast, U.S. Department of Justice, Environment and Natural Resources Division, (202) 514-2000.

With its annual average of 11 inches of rain, the Klamath Basin is not technically a desert. Geographers usually use 10 inches as a cutoff. But if these wide open spaces of Siskiyou County and southern Oregon are not technically desert, they are pretty close. So how did this arid region in the lava-strewn rain shadow of the Cascades become a productive agricultural center — one where third-generation farmers and ranchers are locked in a fierce struggle with the federal government over their economic future? Frontier mythology would suggest the transformation of wasteland into farmland came about as the result of hard work, individual resourcefulness and other qualities traditionally regarded as hallmarks of the Western character. In truth, it was made possible primarily by the same federal government those farmers have been reviling for the past six months. The dispute boiled over in April when the federal government announced it could not deliver irrigation water to about 1,000 Klamath Basin farmers because the water was needed by endangered wildlife. The fight is not solely about the conflicting needs of farmers and fish, as protesters and newspaper headlines suggest. Nor is it about local control versus Washington bureaucrats. The simplistic slogans of the sagebrush rebels are inaccurate. Instead, it is about the false assumptions of the past finally colliding with the realities of the present, about faith in the land's boundless bounty finally running up against the truth of limits. Despite the sudden blast of attention it received, the conflict represents merely the latest episode in a long-running drama that will intensify in coming years throughout California and the West. Although little rain falls on it, the Klamath Basin is well-watered, thanks to drainage from the surrounding mountains that once fed a complex of marshes, shallow lakes, ponds and sloughs covering 185,000 acres of fertile bottomland. Early settlers thus confronted a paradox: Too little rain, but too much water. Beginning in the 1880s, farmers tried to remedy the imbalance by digging ditches. Privately constructed canals, however, could only accomplish so much. By 1903, only 13,000 acres had been brought into cultivation. In response to local demands for federal assistance, the U.S. Bureau of Reclamation (USBR) began construction of the Klamath Project in 1906. Developed mainly over the next two decades, the system eventually comprised seven dams; 1,445 miles of canals, diversion channels, laterals and drains; 28 pumping plants; a hydroelectric generating plant; and nearly two miles of tunnels. The Klamath Project made it possible for farmers to drain and plant vast areas of former lake bed and marshland. Although the acreage varies slightly from year to year, farmers in the Klamath Basin produce barley, hay, oats, potatoes, wheat and other crops on about 240,000 acres irrigated with project water — with 38% of that acreage in California. As has been the case with nearly all USBR undertakings, the Klamath Project was designed to provide cheap water to white homesteaders so they could replace native ecosystems with commercial cropland. The needs of fish and wildlife were ignored. So were the interests of native tribes such as the Klamath, Hoopa, Karuk, and Yurok, who relied for subsistence on the basin's abundant fish and waterfowl. That biological richness was recognized early on even by outsiders. In 1908, President Theodore Roosevelt issued a proclamation establishing the Lower Klamath National Wildlife Refuge — the nation's first waterfowl refuge. In subsequent years, five more national wildlife refuges would be established in the basin. They now support the largest fall population of waterfowl in the Pacific Flyway and the largest concentration of wintering bald eagles in the Lower 48 states. Despite early recognition of the Klamath Basin's ecological importance, expanding water development and agriculture decimated its wildlife. Two species of native fish endemic to the Klamath Basin — the Lost River and shortnose suckers — are federally listed as endangered, as is the Klamath River population of coho salmon. Whereas an estimated 6 million birds once occupied the basin during fall migration, the number has dwindled to about 1 million. Only 20% of the original wetlands remains. Algae blooms and contaminants in irrigation runoff contribute to periodic fish kills. Native mussels have nearly disappeared. Two factors combined to produce this summer's confrontation, after so many years of ecological damage had not. The first was a legal opinion by the regional solicitor in 1995 declaring that the needs of endangered wildlife and native tribes must be considered before the needs of farmers when the USBR allocates Klamath Basin water. The second was drought. The region received only about half its usual rainfall this year, and there was not enough water in the plumbing system to go around. In April, the USBR announced it could not deliver water to most of the 1,400 farms supplied by the Klamath Project, citing legal obligations to maintain sufficient water in Upper Klamath Lake to protect endangered suckers and to assure adequate downstream flows for salmon. Angry farmers, their fields parched and crops stunted, stormed the irrigation headgates and forced them open. Clashes continued all summer. Ultimately, USBR did deliver farmers about 20% of their normal allocation. By comparison, the agency reported, Central Valley Project farmers this year received 45% of their normal allocation. Many Klamath protestors characterize the dispute as pitting an obscure and ugly fish — the sucker — against family farmers. They gloss over how the farmers' irrigation project wiped out valuable commercial and subsistence fisheries built around those suckers and the more charismatic salmon, and denied native tribes the productive use of the basin's waters. The continued insistence that irrigation be given exclusive priority also threatens wildlife that relies on the refuges — wildlife that attracts more revenue-generating hunters, photographers and birders to the Klamath Basin than to any other refuge in the nation. Although the lines of conflict are complicated, the fundamental cause is not: The federal government led local residents to believe they would be able to ignore the social, economic and environmental consequences of their water diversions forever. That same hollow promise has been made elsewhere in California, particularly in the Central Valley, where the needs of fish, farmers and cities have already collided. A similar confrontation is brewing in the Imperial Valley, another cultivated desert, where wildlife in the Salton Sea suffers from irrigation practices and urban water agencies cast a covetous eye. Besides independence and resourcefulness, Westerners have long prided themselves on neighborliness, although that has seldom been extended to inconvenient wildlife and native tribes. The dispute in the Klamath Basin has been in the making for more than a century and grows directly from the strategy used to settle and tame a dry, unforgiving region. To resolve that dispute, farmers may have to prove they're neighborly by giving something up for the good of those with whom they share the landscape. Contacts: Bureau of Reclamation, Klamath Basin area office: (541) 883-6935. Klamath Basin Water Users Association: (541) 883-6100. Klamath Basin National Wildlife Refuges: (530) 667-2231.