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IWVGA legal council Keith Lemieux / Laura Austin Photo

GA asks court to appoint Class Counsel for “Small Pumpers”

By Patricia Farris News Review Publisher–  At the October 11 Indian Wells Valley Groundwater Authority (IWVGA) meeting legal council for the GA Keith Lemuix reported on the board action that took place in closed session.

The board voted unanimously to direct the GA to apply to serve as class counsel for the “ Small Pumpers Class” in the groundwater adjudication.

The groundwater adjudication that the Water District filed made it into a general adjudication. The program is to identify the groundwater allocations of all the pumpers in the valley because the adjudication needed to be asserted over the Federal government and the Navy. It was requested to be a comprehensive adjudication, meaning that all people who produce water have to be included as partners through the adjudication.

There are approximately 832 private wells that extract from the basin; collectively, they account for maybe 10% of the sustainable yield of the basin and these parties are parties to the litigation but have not retained counsel and are not present in the litigation.

In fact they are technically in default, so there is a provision in the streamlined adjudication act that allows for individuals to apply to the court to be removed from the case if they are determined to be deminious pumpers. That provision raised questions with the federal government because if a sufficient number of parties acted upon that, there would no longer be a comprehensive adjudication. Then, the court would lack jurisdiction over the matter and there would be no lawsuit. So, the parties in court spent some time trying to get their head around a way to resolve that conundrum.

A solution that the District Attorney offered was to take default judgments against all the parties that had not appeared, meaning the court would enter a judgment against anybody who does not have a lawyer and has not yet appeared in the case.

That struck the counsel for the GA as unfair and unreasonable so their attorney requested that the court consider appointing a class counsel for those parties so their interest would be represented in court.

The GA recognized that the most cost-effective and efficient way to represent that class would be to have the GA do it. The GA does not have a water rights claim and, therefore, does not have a conflict of interest. The board then voted to have the GA apply to be class counsel. That motion would be filed with the court the following day and will be heard on November 3rd. Lemieux concluded by saying that another item related to the groundwater adjudication that is going to come up in the Capital Core report later related to the passages and signature of AB779. But we will talk about that when we get to it, he said.

A request from the GA was sent to the Orange County Court requesting that the court certify a “Small Pumpers Class” that includes all overlaying land owners who extract 5 acre-feet or less of groundwater per year from the basin.

The GA additionally requests that the court appoint Donald L Decker as the class representative and appoint class counsel. The GA is asking the court to appoint counsel for the “Small Pumpers Class,” and that should be Richards, Watson, and Gershon.