By Brad Kutner, Courthouse News
WASHINGTON (CN) – A nonprofit organization dedicated to the preservation of national parks sued Interior Secretary Ryan Zinke and agencies he oversees on Monday over the construction of a water pipeline near a national monument in California.
In a federal complaint filed in Washington, D.C., the plaintiff National Parks Conservation Association claims Zinke, the Interior Department, and its Bureau of Land Management approved the construction of a proposed 43-mile long pipeline through a sensitive portion of the California desert without proper environmental review.
The association claims the decision, announced in a letter to the Arizona and California Railroad that said it needed no further approvals to lease land for the project, circumvented federal environmental laws.
The proposed pipeline is part of a plan to pump billions of gallons of water annually from the Fenner Valley and Orange Blossom Wash watershed to hundreds of thousands of Californians.
According to the Cadiz Inc., the company building the pipeline, the so-called “water mine” is a public-private partnership that started in 2009 and has successfully passed California’s stringent environmental review.
An easement agreement between the company and the railroad would be required to build a pipeline in the 100-foot right-of-ways around the railroad’s tracks.
In a September 2017 memo, the Interior Department’s Bureau of Land Management said the General Railroad Right-of-Way Act, approved by Congress in 1887, allows private companies to grant these easements to third parties without federal regulation.
The memo also pointed to Supreme Court precedent which gave a liberal interpretation of the law and explained its original intent was to open up the west for development and facilitating development specifically along railways.
According to the memo, “both of these goals are consistent with a permissive approach to the lease of land within an 1875 easement to a third party so long as the third party use does not interfere with the operation of the railroad.”
For these reasons, according to the memo, railroad companies are allowed “to lease portions of their easements to third parties without permit or grant from the Bureau of Land Management.”
In 2016, the Trump administration placed the Cadiz project on its list of 50 priority emergency and security projects, and said it would capture water currently being lost to evaporation as well as create almost 6,000 jobs.
The National Parks Conservation Association rejects all of these assertions.
The group also pointed to Supreme Court precedent which suggested easements should only be allowed if they serve the railroad company.
“Any use by a railroad within an 1875 Right of Way Act right of way that is not for or in furtherance of a ‘railroad purpose’ is beyond the scope of the right of way and therefore requires permission from the servient estate,” wrote Michael Robinson-Dorn, clinical professor of law and director of the University of California, Irvine’s School of Law, in the complaint.
“The Department of Interior has silenced science by illegally blocking federal environmental review of this harmful California desert project,” said Theresa Pierno, President and CEO of National Parks Conservation Association, in a statement released after the suit was filed.
The association says it’s been fighting the pipeline project for decades, claiming it could harm “fragile springs, wildlife and water resources in Mojave Trails National Monument and Mojave National Preserve.” This suit, according to their statement, is another attempt to stop it from going forward.
As part of the Cadiz projects 2012 environmental impact public comment period, the California-based think tank Pacific Institute said it found flaws in the project that showed the lack of evidence damning the project does not mean none exists.
“There are considerable, unresolved uncertainties about natural recharge and evaporation rates, which call into question the viability of the project,” said the Pacific Institute’s Dr. Newsha Ajami in public comments available online. “The cumulative water conservation via preventing evaporative loss from the Cadiz and Bristol Dry Lakes is greatly overestimated.”
The association is asking a federal judge to strike the 2017 memo and require a permit and environmental review of the Cadiz project’s pipeline before it can commence.
Bureau of Land Management spokeswoman Amber Cargile said in an email to Courthouse News Service the agency doesn’t “comment on items under litigation.”
A representative of the Interior Department did not immediately respond to a request for comment.