Robert Perea, The Fernley Reporter
The City of Fernley’s fight to stop the lining of the Truckee-Carson Irrigation District Canal is still alive.
After a ruling by the U.S. 9th Circuit Court of Appeals reversed the dismissal of their lawsuit in U.S. District Court, attorneys representing the City filed an amended complaint in the case on June 1.
U.S. District Court judge Miranda Du dismissed the City’s lawsuit on Dec. 13, then on Jan. 10 the City filed a petition to amend that complaint. After Judge Du denied that petition, the City Council voted 3-2 on Jan. 18 to authorize its legal team to file an appeal in the 9th Circuit Court of Appeals.
On March 9, the 9th Circuit Court upheld Du’s ruling dismissing the suit on the grounds that the City’s interest in the case is economic, not environmental, but it also ruled that Du erred in refusing to allow Fernley to amend its lawsuit. Du then issued an order in May giving the City until July 12 to file an amended complaint.
“We were not surprised that the 9th Circuit made that ruling, because in the law courts are supposed to give parties ability to amend their complaints,” said David Rigdon, the attorney who represents the City on water matters. “It was surprising to us that this court didn’t.”
Rigdon said that in a lawsuit under the National Environmental Policy Act, a petitioner has to assert that there’s an environmental harm.
“We still believe that we asserted an environmental harm, but we’re going to make that even more clear in the amended complaint,” Rigdon said. “We’re going to make it even more clear that the issue is what’s happening to the aquifer, and causing the water levels in the aquifer to drop has all these add-on environmental problems.’
Rigdon referred to the Central Valley in California, where pumping of water has caused the level of the ground to drop.
“It’s called land subsidence,” he said. “That can have massive effects in an area, especially if you have a rapid dropping of the groundwater table. It can actually cause earthquakes and things like that.”
Rigdon said the city’s complaint is based on the Bureau of Reclamation’s Environmental Impact Statement for the canal lining project, which doesn’t address the City’s claims that it and private well owners would be harmed by the loss of water seeping into the ground from the canal.
“This litigation is about their EIS,” Rigdon told the City Council Jan. 18. “We are alleging they are deficient.”
Meanwhile, the BOR has already begun work preparing for the lining of the canal. The project originally approved in the EIS was to line the entire 12 miles of the canal through Fernley, but BOR is currently working on Phase I of the project, which is in the general area of where the canal crosses 95A.
“Apparently they went to the drawing board and realized they couldn’t afford the whole project,” Rigdon said. “They opted to move forward with that even though the lawsuits are still pending. That’s for them to decide whether that was a good risk or not.”
Once the Bureau of Reclamation filed either a response to Fernley’s amended petition, or a motion to dismiss, then the sides will either file more motions or the case will progress toward a decision by the judge.
Rigdon said it’s likely the BOR will complete Phase I of the lining of the canal before the litigation is resolved. So what happens if the lawsuit is resolved in Fernley’s favor?
“Then they’ve constructed a project without proper approvals and that’s a problem for them,” Rigdon said. “We think have a strong case to make to the District Court as we’ll lay out in the amended complaint, and we just hope for a fair hearing at the District Court.”