By Patricia Farris News Review Publisher
The following excerpts are lifted from the Amicus Briefs that were submitted to The News Review from Kelly Garman, Vice President of Strutzman Public Affairs representing Mojave Pistachios.
According to Garman, these briefs were recently submitted to the Court of Appeals in strong support of Mojave Pistachios and demonstrating the local and statewide harm caused by overzealous Groundwater Sustainability Agencies (GSA)
Garman states that The Indian Wells Valley Groundwater Authority (IWVGA) is trying to permanently end all ag activity in the Indian Wells Valley through extreme fees and zero or very short-term groundwater pumping allowances. In fact, the IWVGA determined agriculture had no water rights to native groundwater. It then imposed a $2,130/acre-foot replenishment fee on groundwater use.
California Building Industry Association, Western Growers Association, Madera Landowners, California Farm Bureau Federation, Dairy Cares, American Pistachio Growers, and Searles Valley Minerals understand that Mojave Pistachios’ fight for water has statewide implications.
Locally, economically disadvantaged communities such as Trona, Argus, Pioneer Point, and Westend fear their water being shut off and have few – if any – resources available to fight this enormous fee in court. Further, the IWVGA alleges that its fees, even if unconstitutional, must be paid BEFORE they can be challenged in court.
The momentum is growing to stop the Indian Wells Valley Groundwater Authority from abusing the intent of the State Groundwater Management Act (SGMA).
CALIFORNIA BUILDING INDUSTRY ASSOCIATION AMICUS CURIAE BRIEF
The issue regarding whether a public agency can disproportionately allocate a fee based on its discretionary determination of users is of concern to the California Building Industry Association (CBIA). Homebuilders rely on certainty in planning housing development at a time when California faces a housing crisis.
Before the Court is a novel question of law. (Petition for Writ [Petition] at 19-21, 37-46.) Can a landowner with overlying water rights suddenly be determined to have no right to groundwater by an agency who then allocates all of the landowner’s water to other pumpers in the basin and then adopts an unaffordable fee that only applies to a few landowners? In so doing, the agency decision shifts to the landowner the entire burden for basin management and to other users the benefit by requiring that a few landowners fund the importation of supplemental water into the basin to benefit all landowners.
Here, Groundwater Authority (GSA) attempts to dilute the effect of its reallocation of water rights by imposing a fee upon the landowner, claiming one of two things: first, the landowner can pay an exorbitant fee to get new water or second, even if they want to challenge the reallocation, they must first pay the fee despite it being excessive: $2,130 per acre-foot, or approximately $10 to $12 million dollars per year until the matter is resolved. This violates the unconstitutional conditions doctrine. (Sheetz v. County of El Dorado (2022) 84 Cal.App.5th 394 [in the context of land-use exactions established in Nollan and Dolan, the county failed to make an individualized determination that an “essential nexus” and “rough proportionality” existed between the traffic impacts caused by or attributable to his project and the need for improvements to state and local roads thus violating rough proportionality test and the “unconstitutional conditions doctrine.”
If the ruling stands, landowners may receive project permits but then face a SGMA agency who could declare a zero water allocation to their project from a particular water basin. More egregiously, the SGMA agency could insulate this zero allocation from legal challenge by tying it to a prohibitively expensive tax (here, i.e., for 1600 acres, the fee is equivalent of tax amounts to approximately $10M per year) to continue to pump water from beneath their own land and for which the same water two years ago was free.
Western Growers Association (WGA), California Farm Bureau Federation, Dairy Cares, and American Pistachio Growers (collectively, Amici Curiae) file this Amicus Curiae brief in support of Petitioners Mojave Pistachios, LLC and Paul G. Nugent and Mary E. Nugent. The issues, in this case, are of great concern to Amici Curiae, as agricultural groundwater users rely on California common law principles of water law. Sustainable Groundwater Management Act (SGMA) requires local agencies to form groundwater sustainability agencies (GSAs), which are tasked with the development and implementation of groundwater sustainability plans (GSPs) to avoid undesirable results and mitigate overdrafts within the corresponding groundwater basin.
In this instance, the Indian Wells Valley Groundwater Authority, the GSA, has developed and implemented a GSP that allocates native groundwater relying upon its own erroneous legal analysis of Petitioners’ water rights. Additionally, the GSA asserts that because the California Legislature has said that nothing in a GSP determines or alters groundwater rights under common law, ipso facto, the GSA’s allocations of native groundwater and legal analysis of water rights do not modify established water rights. This argument is a legal absurdity. The GSA’s interpretation means that SGMA’s prohibition on the GSP determining or altering groundwater rights essentially rubber stamps the GSP’s ability to make arbitrary water rights determinations regardless of whether this is appropriate or results in a modification of those same rights under common law.
The GA, as the GSA, also contends that if an action ends with a fee, everything leading up to it cannot be challenged without payment of the fee. According to GA, a GSA can insulate hostile and illegal decisions from a challenge unless a farmer pays an exorbitant fee. This is inconsistent with California law. In fact, SGMA provides two avenues for fee-related challenges – only one requires the Plaintiff to “pay first.” (Wat. Code, §§ 10726.6(c) and (d).) The GA has set the fee at an amount out of reach of agricultural producers who have relied on their overlying water rights for decades—rights that were specifically protected by SGMA.
ARGUMENT
I. INTERPRETATIONS OF SGMA MUST BE CONSISTENTLY APPLIED AND IN ACCORDANCE WITH THE CALIFORNIA CONSTITUTION AND COMMON LAW.
California recognizes a landowner’s overlying right as “the owner’s right to take water from the ground underneath for use on his land within the basin or watershed.” (City of Barstow v. Mojave Water Agency (2000) 23 Cal. 4th 1224, 1240.) Such an overlying right is based on the ownership of the land and is appurtenant thereto. (Ibid.) “The California Constitution and the Water Code make clear that the policy of this state is to put water resources to reasonable and beneficial use.” Irrigation for agriculture is clearly a beneficial use.
Pursuant to SGMA, the GSAs have no authority to adjudicate groundwater rights among owners. (Wat. Code § 10726.8 [“Nothing in this part shall be construed as authorizing a local agency to make a binding determination of the water rights of any person or entity…”].) Contrary to this statutory limit on its authority, the Real Party admits in its GSP that it made water rights determinations and that it determined that certain overlying landowners, including Mojave, held “inferior” rights and that other water users held “superior” rights. The superior court sustaining demurrers to these causes of action is contrary to California law. It sets a devastating precedent for agricultural groundwater users, given the Real Party’s conclusion that agricultural use should not be considered a reasonable use of water.
The GA argues that the Annual Pumping Allocations it established are not determinations of water rights because the California Legislature has expressly declared they are not. The GSA has expressly determined that agriculture is to be allocated none of the native groundwater, effectively stripping overlying agricultural users of groundwater production rights.
In seeking to support its allocations of native groundwater, The GA conducts its own analysis and conclusions as to water rights—a function that is specifically held by the courts. The GA’s Return to Petition provides extensive arguments regarding Mojave’s water rights. They argue that Mojave has lost its water rights to prescription. Whether or not Mojave has altered water rights is not an appropriate inquiry, as the legitimacy of overlying water rights and priority determinations by GSAs was not intended under, or supported by, the provisions of SGMA.
The superior court order states that there is no interference with California groundwater rights when a GSA allocates groundwater because the allocation is not a permanent adjudication of groundwater rights performed pursuant to Code of Civil Procedure §830, et seq. This is seemingly in response to the GA’s argument that: “[a]t the heart of Mojave’s challenge is the unsupported presumption that Mojave has a “vested overlying water right to pump native groundwater from the Basin,” without paying the Replenishment Fee. But, Mojave likely does not possess a water right”. This statement by the GA regarding whether or not Petitioner Mojave as an overlying landowner and agricultural producer, possesses water rights is contrary to the law. It flies in the face of the requirements of SGMA.
SGMA provides for judicial review of all GSA actions – an aggrieved party is not required to initiate a comprehensive basin adjudication to challenge a GSA’s actions. Despite this, the GA argues: “[i]f a party feels that its water rights have been improperly considered in the course of basin management, the party’s remedy at law is to have the court in a comprehensive adjudication determine the existence and precise contours of those rights. The Water Code section 10726.6, subdivision (e), provides that “actions by a groundwater sustainability agency are subject to judicial review pursuant to Section 1085 of the Code of Civil Procedure,” unless SGMA specifically provides for another cause of action.
The California Legislature did not intend for SGMA to become a tool used to strip landowners of their water rights. “In enacting this part, it is the intent of the Legislature to do all of the following: (a) To provide for the sustainable management of groundwater basins. (b) To enhance local management of groundwater consistent with rights to use or store groundwater and Section 2 of Article X of the California Constitution. It is the intent of the Legislature to preserve the security of water rights in the state to the greatest extent possible consistent with the sustainable management of groundwater.”
The GA’s determination that agricultural pumpers hold “inferior rights” is factually and legally incorrect. The GA’s decision to provide zero allocations of native groundwater to agricultural producers is legally wrong (i.e., violates Water Code Section 106) and detrimental to the livelihood of agricultural producers in the state, impacting food production for the majority of the nation. Indeed, the GSA is bound to exercise discretion in accordance with Water Code Section 106. “Section 106 expresses a clear policy preference for domestic and then irrigation use…” (See Abatti v. Imperial Irrigation District (2020) 52 Cal.App.5th 236, 280-281.) Agriculture is an important staple of both the California and national economies. Agriculture is also important for the feeding of the population. Amici and Petitioner represent overlying agricultural landowners that grow, pack, and ship over half of the nation’s fresh produce, including nearly a third of America’s fresh organic produce—all while using groundwater to support the farms.
