Press "Enter" to skip to content

IWVGA legal counsel reports win in fee case

By Patricia Farris News Review Publisher–

At the Indian Wells Valley Groundwater Authority meeting on February 14th, Phil Hall, IWVGA legal counsel, reported on what he termed reportable news on the legal front.  “ A press release is out reporting a great victory for the GA and this community.  He stated the Court of Appeals for the Fourth Appellate District has ruled in the Mojave Pistachios’ appeal to the loss of their demure the case they had originally filed positive action was thrown out for not being filed at that point in time because they could not state a cause of action against us.  The causes of action they were looking at were two items.  One was a taking kind of a case.  They were seeking over $250  Million in damages, alleging a taking by the GA for imposing the Replenishment Fee.   These causes of action have been thrown out completely. There are no more taking of causes of actions on those.”  That is what the Appellant Court ruled, stated Hall.

The other item they were challenging was the fee itself.  They had coaxed it in a couple of different paths.  In the three times, they have rewritten their complaint.  We are now at the third amended complaint.  It was originally denied by the court without cause to amend, which means it was over.  They appealed to the fourth Appellant.  The fourth took it, which is usually called an extraordinary write. Usually, a demure appellant court will take it.

This one was interesting because it had great impact and essentially got rid of all their cases on those issues.  The Fourth Appellant took it, and they ruled last Thursday in a certificate for a publication decision, which means the court of appeals wants this to be considered law and be cited in other cases.

In that case, they found that Mojave does not have a takings claim against the GA, and they found that the replenishment fee has to be paid if you want to litigate against it.  It is under the Pay first rule.  Mojave did not pay; they have not paid the fee, so they do not have the opportunity to challenge the fee.

Hall suggested that those who want to read the decision and can read it.  It is a well-thought-out decision, really well put together.  There are three different reasons why they support the case.  It is a good public policy precedent and the exact working of the Sustainable Groundwater Management Act (SGMA).  For those that have heard me before, I think this was always how this was going to happen.  Where this would be and what we would be looking at.  This is a win in some ways for the legal team. It’s a win for the community, and most importantly, I think it says a lot about the political leadership that this agency of this community has had moving into this.

These were very significant issues, a case of first impressions.  I cannot say enough about the political wherewithal to get this here.  The legal side of it is easy. The political side is the tough side. That is really what this case is about, so moving forward, unless the California Supreme Court takes the case, which could happen, but I don’t think it is likely.  It is a possibility, though, because it is a case of first impression and it has a significant on SGMA throughout the state, so it could happen. Still, the reasoning of this case is very well thought out and supported by these different sets of reasoning to get the same conclusion, and at this stage, Mojave’s case of not paying their replenishment fee is pretty much over.

No more takings cases so $255 million takings case that they were claiming is out, and there is about $30 million in back fees owed now.

The Board also voted to approve a $75,000 deposit to Antelope Valley East Kern (AVEK) to cover work happening for the GA’s imported water pipeline project.   It was by a vote of 4 to 1.  The GA is responsible for bringing the IWV groundwater basin into sustainability.  They currently believe the best way to do this is to import it from another basis.

The dissenting vote was from Board member Chuck Griffin, who represents the IWV Water District.  Griffin said he is not comfortable paying $75,000 when he’s not certain the pipeline is going to happen.   IWVGA water resources Manager Steve Johnson stated that the $75,000. is a deposit to be used when the work is done? He indicated that if they do not use the entire $75,000, it would be refunded to the GA.  Griffin noted that the Water District is still not on board with the pipeline.