BY PATRICIA FARRIS News Review Staff Publisher – During public comment at the December 14 IWV Ground Water Authority (GA) board meeting, Rene Westa-Lusk asked the board for clarification on the lawsuits the GA is involved in, referring to the three entities that have not paid their Replenishment Fees. Her understanding was that the GA was forced to go to court to enforce the ordinance that was passed in August 2020 stating that the Replenishment Fee was a requirement to be paid. Westa-Lusk asked the board to clarify to the public these lawsuits “Can you clarify for the public that there is a big difference from being forced to go to court to enforce an ordinance versus going on the offensive and filing a lawsuit against someone else without basic provocation.
“I attended the Water District meeting on Monday December, 12 they were countering my comments about the cost of the Adjudication, wanting them to throw back the cost the GA is spending on legal fees. But there is a big difference when you go out and launch a lawsuit against other entities verses your defending an ordinance that was passed by law to pay the GA for the Replenishment Fee.” She said, “To me there is a big difference in those lawsuits and you can’t have them in separate buckets of cost. I think the public is being misled a lot of the time by people poking, ‘Oh, they all have their lawsuits.’ The GA did not go out seeking those lawsuits they were forced to collect Replenishment Fee.”
Keith Lemuix, legal counsel for the GA responded to Westa-Lusk’s request by stating “There are currently six lawsuits that the GA is involved in. Three of them include Searles Valley Minerals (SVM), Mojave Pistachios, and the Inyokern Community Services District (ICSD), to get them to pay the cost of the Replenishment Fee. The court has already determined that they do not have a legal basis to challenge the fee because they did not pay it. What remains to be done is to get the court to order them to pay the fee and we will hopefully accomplish that soon. The suit against the ICSD is because they did not pay the extraction fee and we do have a duty to file these in order to enforce these evenly on everybody. The remaining three cases were defended. One was filed by SVM. The suit states that the Groundwater Sustainability Plan (GSP) was adopted improperly. The suit filed by the Mojave Pistachios states the same thing. The last case was filed by the Indian Wells Valley Water District (IWVWD) that is the Groundwater Adjudication. In that case it appears that some parties want to challenge some of the determinations made in the GSP. So the GA has to be involved in that case and defend as well.
Of those six cases one of them certainly caused by the Water District.” Westa-Lusk responded, “So the GA had no choice but to participate in five of the six because they were launched by the GA?” Lemuix stated that “Three of the six suits were defendants that were launched on us and three of them were filed to enforce our fees. I would argue that we really do not have a choice but to participate in all six.”
Westa-Lusk said “The GA never went seeking these things until there was a violation of not paying the fees and they had to defend themselves and other lawsuits launched against them.”
Phil Hall, county council, stated to the board, “I watched the Water District board meeting and was kind of dismayed at the answer Rene was given. Her question was pretty simple ‘How much is the Water District spending on the Adjudication lawsuit?’” Hall said, “Rather than answering that there was a lot of dancing, a lot of avoidance of the $1 million dollars that is budgeted by the District for litigation cost.” Hall continued, “There was a complete failure to understand that the Adjudication that the District filed brought the GA in and they had no alternative by statute to be involved in that case. To have a board president complain that a member of the public was asking what the GA is spending on a lawsuit that the GA did not instigate was sort of puzzling. I still have not heard what the District has spent. If we remember going back a year ago when this issue came up we made the point that the Adjudication lawsuit sues everybody in the Basin, so if you live in a house in the city of Ridgecrest you are now paying county’s defense cost, city’s defense cost, the GA’s defense cost and the defense costs are prosecuting costs for that case. This is where your tax dollars are going. The GA had no alternative but to be involved. At first we heard from the District that they were not challenging the GSP, I would say anybody watching the recent Water District meetings would come to the conclusion that the District is challenging the GSP and its attorneys in two hearings now made it clear that this is their choice. The District is challenging the GSP through the Adjudication lawsuit that the board voted for. The District voted for the GSP, they were the deciding vote on it. Now they have used the Adjudication process to attack it and creating a lot of litigation costs that are unneeded.”
Another agenda item was the action regarding 2023 board rotation. Lemuix stated, “Last year the Water District was to rotate in as Chair of the Board, as everybody is aware, the District is currently adverse to the GA and the Groundwater Adjudication. Recently the District indicated to the court that it plans to challenge some of the technical failures in the GSP which puts them in a direct collision course with the GSP progress. The District understands this conflict of interest and has responded to it by opting out of any functions that implicate the Adjudication and has been very diligent in making sure they do not create a conflict problem. As you recall last year the board decided by a resolution that the District be skipped for now until the conflict can be resolved in the Adjudication one way or the other.
“This year the Water District will be rotating in a Vice Chair for the organization and created the same conflict issues because obviously if the chair is not present the vice chair functions as the chair, then potentially you have a chair that is in conflict with the organization. So the recommendation from staff is to adopt the resolution which continues the practice of skipping the Water District while the conflict is in existence. Consequently the chair would rotate to the City and Phillip Peters of the county would be the vice chair.”
The question was asked by a GA board member, “When was the last time the Water District served as chair or vice chair?” The response was in 2019 the Water District served as chair, and vice chair in 2021. Given the conflict that arose in 2021 the GA board decided to move with the resolution 092 which removed the District as chair.
“The Water District has elected to abstain from an increasing set of topics including our enforcement actions against SMV and Mojave Pistachios, basically all of the litigations.” said Lemuix “The point I want to make is that when they filed the Adjudication it was not necessarily the case that they were not going to directly challenge the GSP itself. They could simply set the allocation for the pumpers and that is a topic the GA does not have an interest in. What has happened in the past year, it’s been made clear that the District is not only intending to do that but they want that to be the first topic to be litigated in the Adjudication. They are proposing that could even happen next year. It really puts a fine point on this issue.”
Jim Worth, legal counsel for the Water District spoke to the board saying, “I disagree with the characterization of the adjudication of the District, never made a representation that they were not doing one thing or another. The counsel of the GA is well aware of what encompasses a Groundwater Adjudication and that is what the District has always been pursuing. I disagree with the characterizations of the other discussions, I believe these are accurate.”
A motion was made to approve the board action that the Water District be skipped not being permitted to serve their term as chair of the board. A motion was made to approve with the one dissenting vote from Stan Rajtora.
The next agenda item was to vote on the renewal of the contract with the Capital Core Group. According to Carol Keefer, GA manager, “We have a lot to continue on things they are working on for us. As you recall work for a legislative advocacy and help to secure funding and water rights that we need to implement our GSP. What we are proposing for 2023 is to continue to work with a permanent water supply request. In the negotiations of the existing water-contracts that we are looking at this point in time as well as the various agreements that are needed in order to actually get delivered.
“In addition we were tasked with funding about $6 million in planning activities, as well as funding for the Interconnective Pipeline, the Water Recycle Plant as well as an additional $5 million for the City of Ridgecrest Waste Water Treatment Plant. We were able to secure out of that $10.1 million dollars and we currently have about $6 million in the works for 2023 and that will continue.
“As you can see we have organized our work a little differently this year, we are going to secure increased water supplies and secure federal funding or state funding. We have taken that out and broken them out by tasks. Basically here are the various goals for obtaining water – here is what we want to accomplish over 2023. Also taking each individual project the Interconnective Pipeline, what needs to be done there, the Water Recycling Plant, what needs to be done there and of course the Waste Water Treatment and what still needs to be done there.
“Our last task is a lot of the other projects that are pretty new and are now adding finally into our workplace. That will include the mitigation plan, funding the agricultural land fallowing and repurposing.”
A motion to renew the Capital Core Group contract was approved.
The board considered the Imported Water Interconnection Project items. They include presentation of Preferred Pipeline Alignment, a request for proposals for environmental documents and permitting services, also a proposal for Pipeline-Right-of-Way services and an proposal request for pipeline design services. The water resources manager Steve Johnson’s team gave a full report on their action updates.