Stutzman Public Affairs Kelly Garman, Vice President– Pursuant to California Rules of Court, rule 8.500(g), the Western Growers Association, California Farm Bureau Federation, Dairy Cares, American Pistachio Growers, California Association of Winegrape Growers, Agricultural Council of California, California Fresh Fruit Association, and California Citrus Mutual, respectfully submit this amicus letter to urge the Court to grant review in the above-entitled matter. As set forth below, the significant impact of this matter on California agriculture and water rights holders warrants review.
I. THE INTERESTS OF THE CALIFORNIA AGRICULTURAL COMMUNITY
The Western Growers Association, California Farm Bureau Federation, Dairy Cares, American Pistachio Growers, California Association of Winegrape Growers, Agricultural Council of California, California Fresh Fruit Association, and California Citrus Mutual submit this letter as representatives of local and regional farmers throughout the western United States including in the State of California.
Founded in 1926, Western Growers Association (WGA) is a nonprofit association representing local and regional family farmers in California, Arizona, Colorado, and New Mexico. WGA’s members grow, pack, and ship over half of the nation’s fresh produce including nearly a third of America’s fresh organic produce. The California Farm Bureau Federation was founded in 1919 and is an innovative, service-based organization dedicated to being the foremost advocate, protecting the future and quality of life for all California farmers and ranchers. Dairy Cares was formed by the California dairy community in 2001 to work collaboratively to ensure the long-term sustainability of dairy
farms. The American Pistachio Growers is a non-profit trade association representing over 800 grower members in California, Arizona, and New Mexico with the shared goal of increasing global awareness of nutritious, American-grown pistachios. These entities represent an industry that feeds our nation, and their members have a vital interest in the issues presented in this case. The California Association of Winegrape Growers (CAWG) represents growers in every wine region of California. CAWG provides those growers a unified voice, effective advocacy and strong leadership, while promoting the winegrowing industry’s long-term success. CAWG works to advance the adoption of sound public policies and foster awareness and understanding of winegrape growers’ contributions to the economy, environment, and California communities. F
1919, Agricultural Council of California highest quality Established in 1936, the California Fresh Fruit
Association (CFFA) is a voluntary public policy association that represents growers, packers, and shippers of California table grape, blueberry, kiwi, pomegranate and deciduous tree fruit communities. CFFA serves as a public policy representative for these growers, shippers and packers, on issues at both the state and federal levels.
California Citrus works to protect and enhance the viability of California’s citrus growers.
The fair and consistent interpretation and implementation of the Sustainable Groundwater Management Act (SGMA) and California common law water rights is of the utmost importance to the future of California agriculture. The Appellate Court’s decision regarding the Indian Wells Valley Groundwater Authority’s prioritization of water rights claims and unadjudicated allocations of the native groundwater bestows a Groundwater Sustainability Agency (GSA), with authority beyond that established by SGMA.
The purpose of SGMA, among other things, is “to enhance local management of groundwater consistent with rights to use or store groundwater and Section 2 of Article X of the California Constitution…[and] to preserve the security of water rights in the state to the greatest extent possible…” (Wat. Code § 10720.1, subd. (b).) Accordingly, SGMA prohibits GSAs from granting allocations on the basis of water rights priority determinations. (Wat. Code, §§ 10720.1(b), 10726.8(b), 10720.5(b), see also 10738.)
Allowing a GSA to prioritize and allocate water rights in place of the judiciary distorts SGMA and turns a century of California law on its head. The rights and livelihood of California growers and landowners are endangered by sanctioning the GSA’s ultra vires actions to unilaterally take water rights without effective recourse.
The WGA, California Farm Bureau Federation, Dairy Cares, American Pistachio Growers, CAWG, Ag Council, CFFA, and California Citrus all have an interest in ensuring that SGMA is implemented fairly and consistently with California law, and that landowners have adequate legal channels to challenge erroneous determinations by the GSAs pursuant to SGMA. This case is of particular importance because many farmers or ranchers as landowners, rely on groundwater that is or may be subject to regulatory action by a GSA, as in this matter. The Appellate Court’s decision allowing the GSA’s decision to stand notwithstanding the conflict with California Water Code §10738 is inappropriate and erodes confidence in the Statewide regulatory process.
Pursuant to SGMA, the GSAs have no authority to adjudicate groundwater rights among owners. (Wat. Code § 10726.8 [“Nothing in this part shall be construed as authorizing a local agency to make a binding determination of the water rights of any person or entity…”].) Contrary to this statutory limit on its authority, the GSA granted zero annual allocation of groundwater to the landowner’s established 1,600-acre farm. The GSA determined that Mojave Pistachios’ overlying rights were “inferior” to other pumpers’ water rights, contrary to the Legislature’s declaration that SGMA preserved overlying water rights and California law.
II. THE BALANCE OF HARM HEAVILY FAVORS GRANTING REVIEW
The Court of Appeal held that several challenges— including takings of private property rights—are barred under the “pay first litigate later” doctrine because the landowner did not pay the GSA’s massive replenishment fee of $2,130 per acre-foot of groundwater pumped since 2021, which today amounts to a cumulative fee of over $25 million.
The California Legislature did not intend for SGMA to become a tool used to strip landowners of their water rights. “In enacting this part, it is the intent of the Legislature to do all of the following: (a) To provide for the sustainable management of groundwater basins. (b) To enhance local management of groundwater consistent with rights to use or store groundwater and Section 2 of Article X of the California Constitution. It is the intent of the Legislature to preserve the security of water rights in the state to the greatest extent possible consistent with the sustainable management of groundwater.” (Cal. Water Code § 10720.1) (Underscoring added.) Contrary to SGMA’s Legislative intent, the Court allowed the GSA to determine that landowners have inferior water rights as a basis to set a replenishment fee, without due process, because the “pay first litigate later” doctrine shields the GSA’s entire action.
Under the opinion, the landowner cannot challenge the GSA’s decisions to award
them zero allocation or to impose a replenishment fee so large it will put them out of business. This opinion will have catastrophic consequences for all California water rights holders and the implementation of SGMA. If the opinion stands, public agencies across the state can shelter all manner of illegal conduct, including prohibiting groundwater pumping, taking water rights without payment, and imposing multi-million-dollar, unaffordable fees.
According to the California Department of Food and Agriculture, “[o]ver a third of the country’s vegetables and three-quarters of the country’s fruits and nuts are grown in California.” Agriculture is an important staple of both the California and national economies. Agriculture is also important for the feeding of the population. Agricultural landowners in California grow, pack, and ship over half of the nation’s fresh produce including nearly a third of America’s fresh organic produce—all while using groundwater to support the farms.
As the Court deliberates, Western Growers Association, California Farm Bureau Federation, Dairy Cares, American Pistachio Growers, California Association of Winegrape Growers, Agricultural Council of California, California Fresh Fruit Association, and California Citrus Mutual urge the Court to consider the impact of this case on the millions of Americans who rely upon agriculture from the great State of California.
