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Mojave Pistachios challenges Court of Appeals ruling on pay first fees

Rod Stiefvater  Mojave Pistachios–  A recent Court of Appeals ruling in Orange County has sent shockwaves through California’s agricultural and business communities, sparking concerns about water rights, sustainability, and the future of farming in the Indian Wells Valley and across the state. This ruling allows the Indian Wells Valley Groundwater Authority (the Authority) to impose unprecedentedly large fees without due process; in fact, the Authority has zero representation for agricultural and industrial users. This is a gut-wrenching narrative that threatens my farm and will cripple Mojave Pistachios. Further, and to be brutally direct, this opinion will have catastrophic consequences for all of California’s water rights holders and for the implementation of the Sustainable Groundwater Management Act (SGMA). Water gurus are now paying very close attention to what is happening right here in the Valley.

At the heart of the matter lies the “pay first, litigate later” doctrine, a legal principle that has profound implications for water rights holders. It is a noose around the neck of justice, denying water rights holders the right to question the very decisions that could put them out of business. This doctrine is especially harmful to farmers and ranchers since their plants and animals need water to live and produce food for the nation.

Mojave Pistachios is a 1,600-acre farm here in Ridgecrest. The Authority autonomously made the decision that Mojave had lost the right to water their orchards using the water underneath their trees and granted them zero allocation. A “Groundwater Extraction Fee” of $105/acre-foot was imposed on the Valley, a high fee that would damage many farmers in and of itself. Concurrently, the Authority demanded that Mojave pay a $2,130/acre-foot “Replenishment Fee” for all groundwater pumped after January 1, 2021.

We sued. And didn’t pay the Replenishment Fee (which today amounts to $25 million).

Now, the court has ruled that we must first pay the fee to challenge its legality.

The implications of this ruling extend beyond Mojave Pistachios and the Indian Wells Valley. The threat of exorbitant fees imposed by the Groundwater Sustainability Authority (GSA) without proper recourse could spell financial ruin for many, pushing them out of business and jeopardizing agricultural operations across the state.

The Authority hasn’t concealed its interest in eliminating agriculture from the region. Through zero allocations, high fees, and this public opinion, a very troubling picture is painted of the future of farming in California.

Furthermore, the broader implications of this ruling for the SGMA cannot be overstated. The SGMA was enacted to ensure the long-term sustainability of California’s groundwater supply, balancing the needs of various stakeholders while preserving overlying rights and legal frameworks. However, the Court of Appeals’ ruling undermines the spirit of the SGMA by enabling public agencies to bypass due process and impose retributory fees that could cripple entire industries and communities.

The urgency of this issue is paramount, not just for those directly impacted by what is going on in our backyard but for all water rights holders in California. If you are required to pay these kinds of penalties to challenge a water allocation, the usual delays in the justice system mean you can never get to court in time to protect your rights and save your farm.

In the spirit of justice and fairness, and for the sake of our state’s longstanding heritage of farming, it is imperative that the California Supreme Court reviews the Court of Appeals’ ruling to safeguard the rights of water users, uphold principles of fairness and due process, and protect the future of farming in the state. The stakes are high, but with decisive action and a commitment to justice, we can ensure that California’s water resources are managed sustainably and equitably for generations to come.