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Morongo Band of Mission Indians v. State Water Resources Control Board

February 9, 2009

MORONGO BAND OF MISSION INDIANS, PLAINTIFF AND RESPONDENT,
v.
STATE WATER RESOURCES CONTROL BOARD, DEFENDANT AND APPELLANT.



Ct.App. 3 C052177 Sacramento County Super. Ct. No. 04CS00535. Sacramento Judge: Judy H. Hersher.

The opinion of the court was delivered by: Kennard, J.

In an administrative proceeding to revoke a water license, does it violate the license holder's constitutional right to due process of law, as the Court of Appeal held here, for the agency attorney prosecuting the matter before the State Water Resources Control Board to simultaneously serve as an advisor to that board on an unrelated matter? We conclude that the answer is no, and we therefore reverse the Court of Appeal's judgment.

I.

The Morongo Band of Mission Indians (Morongo Band), a federally recognized California Indian tribe, is the current holder of a license to divert water, for irrigation purposes, from springs arising in Millard Canyon in Riverside County. In April 2003, the State Water Resources Control Board (Board) issued a notice of proposed revocation of that license on the grounds that the Morongo Band, or prior holders of the same license, had failed to beneficially use the water for an extended period and had violated license terms by using the water for unauthorized purposes. (See Wat. Code, §§ 1675-1675.1.) The Morongo Band requested a hearing to contest the proposed license revocation. The Board issued a notice of public hearing, which identified Staff Counsel Samantha Olson as a member of the enforcement team prosecuting the case.

In March 2004, before the public hearing was held, the Morongo Band petitioned the Board to disqualify the entire enforcement team prosecuting its license revocation because one or more team members had concurrently advised the Board in other matters. Citing the then recent Court of Appeal decision in Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810, the Morongo Band asserted that these dual prosecutorial and advisory roles of the enforcement team members had created "an inappropriate and impermissible appearance of unfairness and bias sufficient to compel their removal." In support of the petition, the Morongo Band submitted a declaration stating that during the pendency of the license revocation proceeding, in which Samantha Olson was acting in a prosecutorial capacity as a member of the enforcement team, she was also acting in an advisory capacity as a member of the hearing team in a separate matter before the Board, regarding the American River.

A hearing officer denied the Morongo Band's petition to disqualify the enforcement team, and the Morongo Band petitioned the Board for reconsideration of that ruling. (See Wat. Code, § 1122.)

In April 2004, while the petition for reconsideration was pending before the Board, the Morongo Band filed in superior court a petition for writ of mandate. (Wat. Code, § 1126; Code Civ. Proc., § 1094.5.) In the petition, the Morongo Band contended that the hearing officer had abused his discretion and violated the Morongo Band's due process rights by denying the petition to disqualify the enforcement team. In July 2004, the Board issued an order denying the Morongo Band's reconsideration petition, and the Morongo Band filed an amended petition in superior court seeking review of that order.

In opposition to the Morongo Band's writ petition, the Board submitted a declaration by Victoria Whitney, the head of its Division of Water Rights, describing relevant aspects of the agency's internal structure and operating procedures. According to that description, which the Morongo Band does not dispute, the agency, at that time, was divided into several offices, including an executive office and an office of chief counsel, and also into four divisions: administrative services, water quality, financial assistance, and water rights. The office of chief counsel employed 37 attorneys, who were assigned to different practice areas. Around a third of those attorneys advised the nine regional water quality control boards (see Wat. Code, § 13200 et seq.), while the other attorneys assisted and advised the five-member Board, which governs the agency, in various practice areas, including water quality, loans and grants, underground storage tanks, and water rights.

Five agency attorneys practice in the area of water rights. In water rights adjudicative proceedings, a Board member serves as the hearing officer, and the agency's practice is to separate the prosecutorial and advisory functions on the staff level, with some employees assigned to an enforcement team and others to a hearing team. For each proceeding, the office of chief counsel assigns different staff attorneys to the enforcement and hearing teams. Although agency staff employees do not combine adjudicative and prosecutorial functions in the same proceeding, a staff attorney assigned to an enforcement team may also be assigned to advise the Board members, in an unrelated proceeding, as a hearing team member.

The hearing officer and the other Board members treat the enforcement team "like any other party." Agency employees assigned to the enforcement team are screened from inappropriate contact with Board members and other agency staff through strict application of the state Administrative Procedure Act's rules governing ex parte communications.*fn1 (Gov. Code, § 11430.10 et seq.) "In addition, there is a physical separation of offices, support staff, computers, printers, telephones, facsimile machines, copying machines, and rest rooms between the hearing officer and the enforcement team (as well as the hearing team)," according to the Whitney declaration. "Staff members of the enforcement team and hearing team have their separate work spaces, computers, e-mail accounts and telephones, but they may in some cases share support staff, printers, facsimile machines, copying machines and rest rooms."

For the Morongo Band license revocation proceeding, Samantha Olson was the staff attorney assigned to the enforcement team while another attorney, Dana Heinrich, was assigned to the hearing team. For this proceeding, Olson's supervisor is Andrew Sawyer, an assistant chief counsel, and Heinrich's supervisor is Chief Counsel Craig M. Wilson. Consistent with the state Administrative Procedure Act's rules governing ex parte communications (Gov. Code, §§ 11430.10-11430.80), Olson has been and will be screened from inappropriate contact with Wilson relating to this proceeding (even though Wilson is normally Olson's indirect supervisor), and Heinrich has been and will be screened from inappropriate contact with Sawyer (even though Sawyer is normally Heinrich's supervisor). Similar separation and screening procedures are used for team assignments and supervision of the agency's non-attorney technical staff.

The agency has employed Samantha Olson since October 2001. Before the Morongo Band license revocation proceeding, she had served as an enforcement team member three times. The only adjudicative proceeding in which she served as a hearing team member, advising the Board, was an unrelated matter on a petition to revise the Board's "fully appropriated stream declaration" regarding the Lower American River. That proceeding terminated in January 2005.

After considering the materials submitted by the parties, the trial court granted the petition for writ of mandate compelling Olson's disqualification. The Board appealed, and the Court of Appeal, over one justice's ...


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