Monday, June 27, 2016

Letter to the Editor: The Amador Canal and My Well

Dear Amadorians,
Upon perusing Mr. Kriltich's letter, I picked my copy of  Ag Alert, up off the nightstand.  Been taking this publication, since 2004.  I found the article, on groundwater recharge, by earthen canals in Yolo, a fine piece of agricultural journalism.  I set myself to thinking, around my well, here on the edge of Jackson.   Now right up to late 2009, my well produced as much water, as I could ever want, garden and all.  Then in late 2009, it slowed, to a snails pace.  Well maybe its' not failed, but I barely get enough water for domestics, let lone a garden.  All this, and I had never, never had water problems before.

During the drought, I became convinced, scarce rainfall, was to blame.  After reading these articles and writings, I harbor serious doubts.  My well dried up, before the drought.   I'm starting to believe, the failure of my well, is part and parcel of the much diminished waters, in the Old Amador Canal, the year or so before.  Lacking water, my quality of life is greatly diminished.  I am fearful, that if the Old Amador is dried up completely, my well will go dry as the desert.  Also makes me wonder, about the trees, how will they survive, if this pipeline went through.  How many other water wells, will take a turn towards dust?  Sure can't afford, another well myself, and its sounds to me, like Amador Water is in big debt.  Forty Million Dollars they owe!  Don't think Amador Water can afford, to drill us all new wells, and would they produce anyway?  Who knows, after 140 years of canal recharge ?
Craig Jenberg

Friday, June 24, 2016

Open Letter to Foothill Conservancy Directors and Staff

Open Letter to Foothill Conservancy Directors and Staff
June 24, 2016 Jackson, CA
Submitted by Sean Kriletich

The following paragraphs are a plea for Reason in the fullest sense of the word regarding the Amador Canal and the proposed pipeline project. As a lifelong member of the foothill community, I implore you to continue reading and deeply consider the points outlined below.

Why support the Amador Canal and Oppose the Pipeline Project?
The Amador Canal has been in continuous operation since 1872. In the two decades immediately before its construction and the 30 years following, every accessible tree was cut down in the region the Canal now serves. These trees were used for fuel and construction during the Gold Rush.
With the exodus of humans from the region in the early 1900s, the forest began to come back. The seepage from the canal promoted this re-growth but it also made the trees largely dependent upon this seepage. Animals returned to the region and the soil that had been plowed to dust began to become healthy once again.

Now, 140+ years after the Canal's construction, this ecosystem is clearly dependent upon not only the open water available to animals in the Canal, but also to the seepage from the Canal. Blue heron routinely fish for trout and perch both in the Canal and in the Jackson Creek, whose waters, especially in the summertime are largely a result of Canal seepage. Turtles make their home in the Canal as do frogs and the occasional otter. It is a common site to see deer, fox and in the shoulder seasons, even bear drinking from the Canal. Any day of the year, any hour of the day the Canal is supporting an abundant diversity of life; life that has never known existence without the Canal whether that life comes in the form of plant, animal, insect or fungus.

On top of all of this life, the Canal, even after significant dewatering and termination upon reaching New York Ranch Reservoir in 2008 continues to bolster the groundwater table over a 70 square mile area that reaches all the way to the rich soils of Jackson Valley. Because of its 144-year history, the Canal eco-system in the Jackson Creek drainage depends upon this seepage as do a significant number of agricultural operations from Clinton to Buena Vista. The ecosystem and many of the agriculturalists who depend on this seepage do not even know that they are doing so, but if the Canal were to be dewatered this dependence would become obvious. At such a point, it would be to late to change, as we Amador Co. humans would have given up one of our most precious resources, water, and a canal whose construction dates back to before the major dams and water diversions in CA.

The following points from the Foothill Conservancy’s guiding principles are especially pertinent to this discussion:
• Infrastructure such as water lines, sewer lines, and roads should not be extended outside existing developed areas unless those areas are contiguous to existing communities and scheduled for development in the near future as part of a general or community plan.
• Communities should have clear boundaries with separation between them provided by working landscapes, greenbelts, or parks.
• County and city plans should protect key wildlife habitat, visual quality, agricultural lands, and open space resources.
• Infrastructure should be developed in a way that works with natural systems and minimizes damage to the natural and built environment.

Additional questions that are worth considering include:
-How is this canal any different than those that serve the foothills with raw water from Nevada to Tuolumne counties? Especially interesting considering CCWD's public laments during the last 7 years over the piping of the canals in Calaveras Co and an ongoing push to re-open some of these canal systems. The Amador Canal and the groundwater basin it recharges can also be compared with a modern groundwater recharge project by running water through canals in Yolo Co. See the story here:
-In AWA’s Project Justification for the current grant award, the agency states that “Because groundwater is not used in the region, water lost through seepage is not a usable water supply.” Yet we all know that there are hundreds of residential and agricultural wells tapped into the aquifer below the Jackson Creek watershed. This is an aquifer that is recharged by the Amador Canal.
-While AWA staff and directors consistently characterize this project as a raw water pipeline in verbal communications, the written reality is that it will be a treated water pipe. AWA has sent out at least two pieces of correspondence to its customers over the last 3 years that reference the proposed pipeline as a future treated water
line. They have also disclosed this as the plan in a 2013 letter to the USDA and in the justification for the current Small Diameter Pipeline Project grand funding. How might such a drastic shift in the quality of water affect the character of the Canal region? Would it incentivize housing development? It would certainly put the farms along the
canal out of business, all of which rely upon raw water supply. How might this effect open space in the Jackson Creek watershed?
-An EIR that even vaguely recognizes the impacts of Canal dewatering has not been done since 2001 even though there are large amounts of new information pertaining to the environmental impacts of a complete dewatering since the installation of the Large Diameter Pipeline and the partial dewatering of the Canal.

Thank you for considering these points.

Why oppose this particular pipeline project even if you support a pipeline instead of a canal?
In short, the proposed project is characterized as a 6" diameter pipeline in the existing Canal for its 18-mile length. Much of the pipeline would be left exposed, i.e.
unburied. AWA has few easements along the Canal and therefore must purchase the easements through negotiation or eminent domain in order to complete said project.

Points to consider:
-AWA directors and staff have stated on numerous occasions that the project will cost at least 8 million dollars and possibly as much as 12 million or more. This is an enormous burden on AWA ratepayers around the county considering that the expiring grant is only for 5.1 million dollars.

- It is also important to consider that AWA is already $38.9 million in debt and last year alone spent $1.65 million of rate-payer money just on interest. Of this nearly $40 million debt, $19.3 million is owed to the Bank of New York at 4.75% interest. In the last fiscal year alone, AWA paid out almost one million dollars in interest to this bank, on the other side of the continent. This doesn’t seem like a case of a local public agency supporting the economy in the community it “serves.”
If you doubt this staggering debt figures please visit AWA’s own website and look on page 47:

- An exposed pipeline is an eyesore, undermining the aesthetic character of our rural lands. It is also worthless for fire fighting efforts because a fire is likely to melt the unburied pipe before it can be used for fire suppression. Melted pipe would also become toxic waste in our precious eco-system. While AWA staff has made verbal assurances that they “plan to bury the pipe.” The official plans for the project tell a different story, that of an 18-mile pipe unburied for much of its length.

- The length of the pipe could be cut by at least 50% if it generally followed parcel lines instead of the existing canal.
• Directing the proposed pipeline along straight parcel lines, would also go a long way towards preserving property values and aesthetic values along the
Canal corridor.
• The cost of the project would be cut drastically, saving AWA ratepayers not only initial construction and easement costs, but also interest for years to come.
• If the pipeline were redirected along parcel lines, landowners who have the Canal and proposed pipeline project bisecting their parcels would not have to deal with a pipe as an impediment to land management for forest/grassland health, native grass regeneration and wildfire protection.
-AWA has not treated landowners fairly by any stretch of the imagination in their dealings surrounding the proposed pipeline project.
• AWA has not held the workshops and meetings that they have consistently promised; workshops and meeting that would explain the Project and their reasoning behind it. In 2016, only 1 workshop has been held and this was immediately following a supposed abandonment of the project. As such, no information on the Project was presented to stakeholders.
• AWA has offered landowners such a low value for the easements that no landowner in their right financial mind would accept such a pittance for complete unfettered access to their land
• The easements that AWA has sought from landowners are not for a single raw water pipe through a narrow strip of land, they are " to locate, construct, install, operate, maintain, repair, modify, replace and remove above- and below-ground pipelines and drainage facilities and all necessary below- and above-ground appurtenances thereto..." and include access to the entire parcels for purposes of construction access. This fact alone must bring us pause and make us question the ultimate goals of AWA with this project and the related easement acquisitions.
• AWA went directly from completely unacceptable offers for the easements they seek to the hiring of eminent domain attorneys. A significant number of landowner's who sought to negotiate in good faith with the agency did not even have phone calls or letters responded to by AWA or AWA’s agents.
• All of these points are clearly not in keeping with the Foothill Conservancy’s guiding principle: "Infrastructure planning should be done in open, inclusive processes that actively involve all affected stakeholders and the public, using methods that will ensure broad participation."

These are reasoned points, which make this particular proposed pipeline project clearly unacceptable to any reasonable stakeholder or observer, especially if your guiding principles are those of the Foothill Conservancy. To read all of the guiding principles of the Foothill Conservancy visit:

For those of you who are reading this for the first time, I sent a letter very similar to this to the Foothill Conservancy Board on June 16, 2016. I received a barrage of emails from the President of the Board, Katherine Evatt, that did not address the issues I asked the board to consider, but instead put up a smokescreen in the form of asking why the approximately $100k now sitting at the Amador Community foundation as part of a settlement between AWA and PHAW (Preserve our Historic Amador Waterways) has not been touched. The reasons this money has not been touched are obvious and easily understood: this $100k is for entire Jackson Creek Watershed, which means that there is less than $100 per parcel for landowners from Pine Grove to Buena Vista. Additionally, receiving any of this money prevents further litigation with AWA.

Currently the Foothill Conservancy’s stance on the Small Diameter Pipeline Project is “neutral,” which is difficult to believe for an organization that seems to be organized to take stands on important issues. Let us also remember that, neutrality is rarely if ever reality.

Thank you again for your consideration of the above issues facing the local eco- system, our human community and the quality of rural life in Amador County.

The entire community is interested in the Foothill Conservancy’s stance on this issue. Please let us know what your stance is and why.

Sean Kriletich
Jackson, CA

Wednesday, June 22, 2016

Rate Increase for Amador Water Agency

Amador Water Agency (AWA) is planning on raising rate rates yet again. On Thursday 6/23 AWA will consider a $29,900 contract with The Reed Group to produce the rate study that will attempt to justify the increase. Among other things, the increase is expected to finance the cost overruns for the Small Diameter Pipe (SDP) raw water line.  The cost has doubled from AWA’s original estimate of $5 million. The SDP project was abandoned  by the Board on June 2 due to the construction cost overruns and other unknown costs. Just a week later, the board asked the General Manager to look into the costs more closely. More than a million dollars has already been wasted on the project. If the SDP goes through, ratepayers will be on the hook to pay the cost overruns that could amount to over $5 million dollars.
We are encouraging everyone to attend the meeting at AWA headquarters (12800 Ridge Road) on Thursday June 23 at 9AM. It’s time to let the Board know that enough is enough.

Friday, June 17, 2016

No Casino In Plymouth: Highway 49 Construction/Status of our Lawsuit


Working to Preserve Rural Amador County
P.O. Box 82  Plymouth, CA  95669
Highway 49 Construction / Status of Our Lawsuit
Rumors abound that construction on the Casino has started due to the activity on Highway 49 between the 49er RV Park and the Hardware store.  Contrary to what you may have heard the construction has nothing to do with the proposed casino.
            The pace of our lawsuit has slowed and is the primary reason for the infrequency of updates as months and in some cases years pass with nothing to report.  NCIP’s opposition to the proposed casino remains strong and continues with the recent filing of our appeal brief to the 9th Circuit by our Attorney Ken Williams.  
            Our appeal included a Constitutional challenge to the delegation of the Secretary of Interior’s authority under 25 USC 465 to take land into trust to a hired employee acting as the Assistant Secretary who was neither appointed by the President nor confirmed by the Senate as required by the Constitution.  If we are successful with this challenge, an important precedent eliminating the current expanded fee to trust process allowing GS employees at regional offices to take land into trust could result.
            We also reasserted our argument based on the Supreme Court’s 2009 Carcieri decision that the Secretary has no authority to take land into trust for the Ione Indians because they were not recognized in 1934.  Our argument is based on the 1992 Federal District Court order that Ione was not in 1992 or any time prior to 1992 ever recognized by the United States.  This order was based on the fact that the Ione Indians admitted they were not a treaty tribe and presented no evidence to the Court that they were recognized by an act of Congress, via a Court decision, or by completing the Section 84 recognition process.  The final decision in 1996 included a finding of no recognizable tribal government at Ione and was not appealed by the Ione Band or the Federal government and is binding on both parties.
            Reply briefs from the Defendants and the intervenor Ione Band were due in June  but the defendants have been granted a 30 day extension so our reply will now be due in September.
            Until then we continue to wait and we remain confident that we will prevail in this matter on appeal at the 9thCircuit.
            We are planning a fund raising event later this year.
Thank You for your continued support.   
            On a related note, NCIP continues to monitor significant Indian law cases at the U.S. Supreme Court and during the recent term the Supreme Court accepted five Indian related cases. This was extraordinary as the Court has not in last 100 years accepted this many Indian cases. Three of the cases have been decided but the two with the most far reaching impact to Federal Indian Policy, (Dollar General and Bryant) have been argued with decisions from the Court before adjournment in late June.
The first of three decided cases was Menominee Tribe v. United States. This case was believed to be a routine contract payment dispute that turned into much more. After deciding the contract issue in favor of the United States, the Court then went further in declaring that all statutes of the United States will be interpreted based on what it actually says for everyone. This effectively removes the deference/preference to Indians that laws should be interpreted for their benefit. This was a unanimous decision of the Court.
We are encouraged that major changes in federal Indian policy are likely this year from the unanimous decisions in two more Indian cases. These two cases involve issues whether State jurisdiction can be displaced by the United States after jurisdiction has been vested in the State. In Nebraska v. Parker the question involved whether an 1882 surplus land act was intended by Congress to diminish the Omaha reservation. The Supreme Court decided the statute was ambiguous as to congressional intent to diminish and decided the reservation was not diminished. The unanimous decision written by Justice Thomas explained that a reservation that had been “opened” under the public land laws was not “Indian country” and whether the tribe had any jurisdiction over the area in question should be determined by the courts below by applying the factors in City of Sherrill as suggested in Amicus briefs from CERF and the Village of Hobart, Wisconsin. If the factors in the City of Sherrill decision are applied then jurisdiction over the lands in question will remain with the State of Nebraska.
The other case with issues related to State jurisdiction versus Federal jurisdiction involved an Alaska business man, Mr. Sturgeon, who was told by the National Park Service he could not operate his hovercraft ferry on an Alaskan river because it was in a “national conservation area”. The congressional act allowing the set up of “national conservation areas” to be administered by the National Park Service specifically prohibits the Park Service from displacing the sovereignty of the State of Alaska to the waterways, state land and all private property within the declared bounds of the conservation area. The Park Service by regulation displaced the State jurisdiction, and refused to give the State any real explanation as to the source for their alleged authority. The Park Service said the alleged authority was generally based on the Commerce Clause without identifying any specific source for the authority.
At oral argument all the Supreme Court Justices were focused on the source of the alleged authority. The U.S. attorneys were going to have to explain specifically the source for the authority to displace the State’s jurisdiction to the Court. The assistant Solicitor General evaded every question from the Justices as to the source of the authority and the Justices became noticeably agitated at the U.S. attorneys. Finally, a combination of questioning from all the Justices including Chief Justice Roberts forced the associate solicitor to admit the source for the authority was the Commerce Clause which caused the Justices to become noticeably agitated After quieting the angry Justices, Chief Justice Roberts very assertively stated to the associate solicitor that she was going to answer his questions specifically or she would be held in contempt.
The associate solicitor then explained the United States could reassert the reserved rights doctrine even though Congress had disposed of all of the Indian lands in Alaska because there had in the past been Indians in Alaska. The United States was claiming because there had been reserved rights in Alaska in the past the United States could at any time reassert the long ago disposed of reserved rights and remove State jurisdiction under the Commerce Clause.
When she finished with this explanation there was an audible gasp from attorneys in the courtroom. The United States was arguing that since the Supreme Court had deferred for more than 150 years to the plenary authority of Congress and the Executive Branch over Indians and denied individual Indians rights guaranteed by the U.S. Constitution that the United States now believed they could at any time apply the reserve rights doctrine to remove state jurisdiction under any regulation of the United States.
CERA/CERF is pleased that Chief Justice Roberts stated in the unanimous opinion in Sturgeon that the United States has no continuing authority to assert it can change the rule of law by attempting to extend their jurisdiction by promulgating a regulation that claims jurisdiction over non-public lands. (State lands) The Court ruled that jurisdiction of the United States only applies to lands it still holds as public lands. This seemingly obvious conclusion could present problems to the current manner in which the fee to trust process is administered by the BIA and Dept. of the Interior where privately owned land subject to State jurisdiction is routinely taken into trust pursuant to the regulations at 25 C.F.R. 151.
NCIP attorney Ken Williams continues to monitor and review the Court’s decisions and determine whether and how the decisions may impact our case while waiting for the Court’s decisions in Dollar General and Bryant. NCIP will provide an update on the impact if any on our case when those decisions come down.

NCIP  THANKS  YOU for your  Continued  Interest  &  Support