In August of this year, Governor Brown signed the Sustainable Groundwater Management Act, requiring local officials for the first time to create sustainable groundwater management plans. These management plans potentially could involve pumping restrictions or new pumping fees and as a result, more legal disputes and groundwater adjudications may likely result.
Groundwater adjudications have been the solution for groundwater disputes as they address both water rights and long-term aquifer management, but they are notoriously slow and expensive, lasting fifteen years or more, involving hundreds of lawyers, and costing tens of millions of dollars, possibly more.
The lengthy and expensive groundwater adjudication process was an issue that emerged during development of the groundwater legislation, prompting Governor Brown to note in his official signing message that he would “submit for legislative consideration during the next session a proposal to streamline judicial adjudications of groundwater rights.” On November 20, the Senate Committee on Natural Resources and Water held an informational hearing on groundwater adjudications titled, “Resolving Disputes Regarding Groundwater Rights: Why Does It Take So Long and What Might Be Done to Accelerate the Process?”
Senator Fran Pavley, Chair of the Committee, reiterated that it is a priority of the administration and the legislature to consider what might be done to accelerate the groundwater adjudication process. “This is an issue that we have to grapple with, and the more I read about 15 years of process, legal challenges, expenses, and delay, the more concerned I get, so perhaps today, we can initiate a discussion on modifications we can make to expedite a fair outcome for all,” she said.
This hearing will be covered in three parts:
In part 1, The Honorable Ronald B. Robie, Associate Justice with the Court of Appeal, Third Appellate District, begins with an overview of the groundwater adjudication process.
In part 2, Eric L. Garner, a partner with the law firm Best, Best & Krieger, discusses the Antelope Valley groundwater adjudication process, which has been ongoing since the complaint was first filed in 1999.
In part 3, Stefanie Morris, chief counsel of the State Water Contractors, Chris Scheuring, managing counsel with the California Farm Bureau Federation, and Gordon Burns, undersecretary with the California Environmental Protection Agency discuss options and possible solutions for moving forward.
“This is the beginning of the discussion,” said Senator Pavley. “You have the legislator’s attention and the administration’s attention. Let’s see what we can find out and what should be our next steps towards achieving a mutual goal in expediting the process regarding adjudication.”
The Honorable Ronald B. Robie, Associate Justice, Court of Appeal, Third Appellate District
Senator Pavley introduced the Honorable Ronald B. Robie, pointing out that he is one of the few people to work in every branch of the government: In the legislative branch, he worked for the assembly; in the executive branch, he was chair of the State Water Resources Control Board and director of the Department of Water Resources; and then a judge in the Sacramento Municipal Court and the Superior Court; and now Associate Justice in the Court of Appeal, Third Appellate Court. “What a marvelous career, and how perfectly suited you are for connecting the dots in water and legal challenges and legal rights,” she said.
Justice Robie thanked the Senator for the kind introduction, and then began with an overview his observations and understanding of the common law of groundwater adjudication, starting briefly with surface water to contrast the two systems. He said there is a statutory stream adjudication procedure as well as a common law stream adjudication. “The statutory procedure uses an administrative agency, the State Water Resources Control Board, to first investigate the availability of water in a stream, and then the extent of existing rights,” he said. “Claimants to water in the stream then file claims with the Board which processes them and eventually recommends a determination of the rights. The parties who are involved can then contest that, and after that, it goes to the court, so there is still a judicial role even in a statutory adjudication.”
“This kind of procedure has not been extended to groundwater, so we have today a common law of groundwater adjudication, either in lawsuit between A and B, or as we were talking about today, an adjudication of an entire basin,” he said. “So an adjudication starts, as all lawsuits do, with somebody filing a a complaint, who claims a groundwater right in the basin, and that then triggers the system.”
“The California Supreme Court decision in City of Barstow vs. Mojave Water Agency, a 2000 case … is really the best current statement of California groundwater law,” he said. “Over the years, California groundwater law has gone through an evolution, mainly because of various cases in Southern California that resolved and created new legal principles, but the City of Barstow case basically returned groundwater common law to where it belonged in the beginning. It is a textbook example of how groundwater law exists.”
Justice. Robie then reviewed the different types of groundwater rights:
Overlying pumper: The first and the most important right is that of an overlying pumper, he said. “The person who has a well and is using the water on land above the basin is analogous to having a riparian right in a stream where your surface right depends on your proximity or adjacency to the river or a stream. It attaches to the land. Now these rights are correlative, which means that every overlying landowner has an equal right to every other overlying landowner. Of course, this depends on how much land they have, but the point is that they are equal rights and there is no priority between them as to when they start pumping or when they stop pumping. So that’s the first kind, and the rights are correlative up to the safe yield of the basin and up to the amount of water in the basin that can safely be taken out.”
Non-overlying pumper: “A person can also pump from the basin for use on non-overlying land,” he said. “This pumper is analogous to some having an appropriative right to surface water. Municipal uses are appropriative of groundwater where an agency puts in a well and then delivers the water to all these individual homeowners somewhere else. An appropriative right to groundwater is not correlative; it’s just like a surface water right – first in time, first in right. So if you adjudicate competing appropriative groundwater rights, you do it on the same basis as you would appropriative surface water rights. Appropriators have a lower priority than overlying rights, just the way riparian rights, in theory at least, come before appropriative rights.”
Prescriptive rights: Prescriptive rights are relevant pumping exceeds the safe yield of the basin, he said. “You can obtain a prescriptive right by using water belonging to another in a hostile and adverse way, just like adverse possession to land, for example. The persons claiming prescriptive rights are appropriators; and the prescriptive period is five years, and that’s why you’ll see frequently lawsuits are based upon the five year pumping period. A prescriptive right cannot be obtained against a public agency, so a public agency has a certain priority.”
Federal reserved rights: There are federal reserved rights, not only for the federal government which owns much of the land in California, but for Native American tribes as well, he said. He noted that the Edwards Air Force Base is involved in the Antelope Valley adjudication. “It’s important to have the federal government present because in order to have an adjudication really work under the federal McCarran Act, the US has to be part of the result.”
Given the c
omplicated list of rights and the relationships between them, coming to a determination is a complex task, often taking more than a decade of judicial activity, Justice Robie said. “That’s good for the lawyers, but you know that when you do have that many lawyers working, you’re also costing a lot of money to the people who have the rights, so groundwater adjudications at the common law can be expensive to the parties,” he said. “And you have a lot of owners of land in the basin who are not currently pumping, but as the law is, they still have a potential right and they can’t be ignored.”
“The basic objective of adjudication is to shoehorn all the right holders into the amount of water that’s safely available to be pumped from the basin,” he said. “The inevitable result in a basin where too much water is being taken out is the parties have to cutback. You are basically saying, ‘we’re going to see who gets to cutback and by how much.’ It’s not a simple thing to do and that’s why settlement is sometimes difficult.”
The first issue is that notice must be given to all persons with potential rights, and this can be a real problem, he said. “This is a due process requirement of our constitution and it’s complex with thousands of claimed right holders, both active pumpers and persons owning land and not currently pumping from the basin. These persons include individuals, corporations, public districts, mutual water companies, and there may be hundreds of small pumpers using water for just their home and a small few fruit trees or a few animals. So how do you serve all of these people? How to give them constitutionally proper and adequate notice is an area where the common law doesn’t provide much help.”
Secondly, the trial court must make highly contested factual determinations as the adjudication progresses, he said. “It’s just difficult for a trial court with thousands of parties to decide cases. It’s very easy when you have A suing B or even A suing B and C, but when you have everybody suing everybody and all having different characteristics of their right, it’s another factor, one that I don’t think you can get around unless you resolve the case by non-judicial means – by settlement.”
The first step is to decide what the basin is. “It can be very technical, and often the USGS, DWR and other entities have data useful for this determination,” he said. “You have to define the boundaries of the basin, because only people pumping from the basin itself have a potential right to the waters of the basin.”
The safe yield is the amount of water which can be pumped annually without causing an undesirable effects such as the basin going dry or subsidence, he explained. The annual safe yield of the basin has to be determined, which usually involves engineering studies which must be undertaken just for the adjudication. “In the past, up until now, many of these basins lacked data, and we don’t know exactly how fast we’ll get data available, but hopefully your legislation will certainly be of assistance.”
A five year period is used to examine claimed rights and normally, the rights are based upon the pumping during that time, he said.
Finally, in order to complete an adjudication, the court has to determine the individual water rights of every pumper in the basin, he said. “This is the major task of the adjudication and the one that is most complicated, because everybody has an adverse interest to everybody else. Since we don’t generally require pumpers to document their use, these claims are often based on acres farmed, and then the duty of water. People want to know, did you really farm during those years or not, what were you farming, so lack of ready information is the most important reason to me why these proceedings are so lengthy – because you have to spend so much time finding out what’s going on before you can make the final difficult decisions.”
Justice Robie said that public agencies generally do have good records of their pumping while others have to extrapolate from other factors. “The amount of water that somebody is pumping or claiming is subject to contest and there are bitter disputes, and this leads to discovery proceedings. This is a common law proceeding so you just have to follow the normal law of discovery,” he said. “I think rather than using common law traditional discovery, have some kind of provision to let everybody know what everybody is doing provision.”
“All that I have said today has to be done in the context of a judicial proceeding; there is a judge there, there’s all of the rules of court, and every claimant, large and small, is entitled to a fair hearing,” he said. “Small users sometimes can’t afford lawyers. Judge Komar in the Antelope Valley case created some class actions for small users, which I think is an innovative way that the judge used to solve problems involving lots of people with one lawyer and fewer appearances. The court is obligated to protect the rights of everybody and the applicable law is complex, so we have extensive legal briefing, and argument, and people spend a long time preparing and doing that.”
It’s a complex task for a judge to manage the litigation, Justice Robie said. “The judicial council has made it a policy to have these cases presented to a complex litigation court and the judges in those courts, because judges in complex litigation departments are well familiar with multiple parties, multiple lawyers, and complex issues.”
“The bottom line in any overdrafted basin is that pumpers will have to cutback and that’s why this process is so difficult,” he said. “You cannot say that you can set an arbitrary deadline that an adjudication has to be done in x years or something; there are so many variables that better management of the process is the best way, in my opinion, to make sure that the process is not as lengthy and cumbersome as it is.”
The court has to come up with a plan for management of the adjudicated basin. “Somebody has to be the referee in the future,” he said. “When you have wet years, people may be entitled to pump more than their adjudicated right because there is more water, so you’re not going to say, you have to stop pumping even though it is raining all over the place if you need the water, so there is usually a watermaster of some sort, either an individual or an entity to manage the basins in compliance with the final decree. There also has to be a procedure for funding the watermaster.”
“The court normally retains jurisdiction for a long time to come back and make modifications if appropriate and least in some cases to decide if the watermaster makes a decision that some pumpers don’t like, an avenue for a judicial review of the watermaster decision,” he said. He noted that some of the early adjudications had watermasters, but courts did not retain jurisdiction, so there’s been recent litigation to open those adjudications to make substantive changes.
“As a bottom line final, a judgment of the court can be appealed to the Court of Appeal, and then if necessary, by the parties to the Supreme Court,” he said. “That’s not unusual, but it does add to the length and the cost of any adjudication and that’s another part you can’t cut short. I’d be the last one to tell the Supreme Court how long it has to decide a case.”
Finally, Justice Robie had some comments about the settlement and mediation process. He said that in the Antelope Valley groundwater case, Judge Komar made the determination of safe yield and asked him to be the mediator, to which he agreed. He met with the parties for over a year. “We hassled about every issue in this case and I wanted very much to have resolved the case, but I didn’t,” he said. “We went away very close together but they couldn’t get down to sign on the dotted line, and so they went back to trial before Judge Komar.”
“But I think that the mediation process is beneficial, even if you don’t end up with a solution at the mediation itself … they’re not mandatory and they are not binding, and anything said during a mediation can’t be used at trial, so there’s a lot of freedom of parties during the mediation to say what they want,” he said. “I think that these cases are so complicated, no matter what you do with them, the best way to resolve them is by settlement.”
Many of the Southern California coastal basins were settled years ago because of the urgent need to stop salt water intrusion, but they also had an imported supply of water, he said. “One of the things that makes an adjudication a lot easier to take is if you have an imported supply of water, so if somebody gets cut back, they don’t just go out of business to that extent, but they can buy water from someone else.”
With the common law process of groundwater adjudication, everybody should be encouraged to mediate or have settlement conferences, if at all possible, he said. “You have to be willing to do them over a long period of time, they’re not like an ordinary tort case where you can settle the case in an afternoon.”
Senator Pavley noted that there are 23 adjudicated basins. Do they have watermasters and are they ongoing?
Justice Robie notes that the Mojave basin, the Central and West Basin as well as the Orange County basin have watermasters. “Normally, there are watermasters of varying kinds. That’s not that much different than a surface water adjudication where there are watermasters all over Northern California, and all over the west. … Watermasters are the way of enforcing judicial decrees, historically. And for years, DWR was the watermaster in most of the Northern California streams.”
Dennis O’Connor, principal consultant for the committee, asked if there are there issues associated with the law itself regarding groundwater law itself that should draw legislator’s attention. “As an example, in the groundwater sustainability bills, there was a discussion about undesirable results, including effects on groundwater dependent eocsystems, and there’s been discussions about areas where there is a very clear surface-groundwater interaction. Is that an area where clarity in the law might be helpful?”
“Yes,” says Justice Robie. [long pause … laughter] “The reason I say that is this is a common law proceeding, and common law doesn’t provide for protection of ecosystems. In other words, when you have a groundwater adjudication, protection of ecosystems or environmental factors of that type are not currently covered in what you normally raise in an adjudication … subsidence and things like that, they haven’t dealt with …but you get to that frequently in practical matter through CEQA where mitigation is required, but an adjudication of course is not subject to CEQA, so I think you pointed to something that could be added to it. In an adjudication, you only have the right holders present. There’s no place for intervention by public interest groups or anybody else that I’m aware of.”
For more information …
- For Justice Robie’s submitted briefing giving an explanation of the groundwater adjudication process, go here: 11 20 14 Justice Robie’s Outline
- To watch this meeting on the California Channel, go here: Senate Informational Hearing on Resolving Disputes Regarding Groundwater Rights
Coming tomorrow …
Eric L. Garner, a partner with the law firm Best, Best & Krieger LLP, discusses the Antelope Valley groundwater adjudication process, which has been ongoing since the complaint was first filed in 1999.
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