Court of Appeal Affirms Dismissal of Case Brought by Group Seeking to Remove O’Shaughnessy Dam

On Monday, July 9, 2018, the California Court of Appeal, Fifth Appellate District issued an order affirming the trial court’s order sustaining the demurrer filed by respondents, including the City and County of San Francisco (“Respondents”), to a Petition for Writ of Mandate filed by a group called Restore Hetch Hetchy (“Appellants”). Appellants petitioned the trial court for a writ of mandate to declare the Hetch Hetchy Reservoir and O’Shaughnessy Dam unreasonable methods of diverting water under article X, section 2 of the California Constitution, to which Respondents demurred. The trial court sustained Respondents’ demurrer, finding that: (i) the Raker Act, Pub.L. No. 63–41 (Dec. 19, 1913) 38 Stat. 242, preempted article X, section 2, and (ii) Petitioners’ claims were time barred as they were subject to a four year statute of limitations that began running when article X, section 2 became effective in 1928. The Court of Appeal affirmed the trial court’s finding that Appellant’s claims were pre-empted by the Raker Act. The court of appeal reasoned that the Raker Act reflects Congress’ intent for the O’Shaughnessy Dam to be built at its particular location and to cause the Hetch Hetchy valley to flood and create the reservoir in order to provide water and electricity to Bay Area residents. Because the court found the Congressional intent to be in direct conflict with article X, section 2 of the California Constitution, the court held that the federal law must prevail and refused to find that the Raker Act’s savings clause could produce a different outcome. Accordingly, the court affirmed the trial court’s order sustaining the demurrer and did not reach the issue of the applicable statute of limitations.

Contact: Shawnda M. Grady.