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Mojave Pistachios accuses Groundwater Authority of unfair treatment to agriculture

Stutzman Public Affairs Kelly Garman– On February 8, 2024, the Court of Appeal in Orange County issued the State’s first published appellate opinion interpreting the Sustainable Groundwater Management Act (SGMA) and the powers of a Groundwater Sustainability Authority (GSA). The opinion prohibits a Kern County landowner’s legal challenge to a GSA’s groundwater allocations because the landowner didn’t pay $8.5+ million per year in pumping fees.

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.

The GSA’s expressed intent was to eliminate agriculture from the Indian Wells Valley by providing Mojave Pistachios with no allocation of native groundwater and a very limited allocation to other farmers that would end their farming in a matter of years.

The Court 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.

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 for SGMA implementation. 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.

This ruling goes beyond GSAs and SGMA. Under the ruling, public agencies could adopt a punitive fee designed to bankrupt a certain subset of customers or force them to move or abandon their homes or businesses.

The Court of Appeal acknowledges that its opinion is of statewide importance and a question of first impression, inviting review by the California Supreme Court.

The GSA has filed for an injunction to bar Mojave from continuing to pump water while the matter is litigated. That will deprive their orchard of water needed to sustain the life of the trees. The need for immediate California Supreme Court Review is urgent.

Mojave Pistachios filed its Petition for Review with the California Supreme Court on March 19, 2024.