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Young v. State Water Resources Control Board

California Court of Appeals, Third District, San Joaquin

September 4, 2013

DIANNE E. YOUNG et al., Plaintiffs and Respondents,
v.
STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant WOODS IRRIGATION COMPANY et al., Real Parties in Interest and Respondents; SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, Real Party in Interest and Appellant.

APPEAL from a judgment of the Superior Court of San Joaquin County, No. 39201100259191CUWMSTK Lesley D. Holland, Judge.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Senior Assistant Attorney General, Sara Russell, Tracy L. Winsor and Matthew G. Bullock, Deputy Attorneys General, for Defendant and Appellant.

Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O’Hanlon, Rebecca R. Akroyd, Elizabeth L. Leeper; and Jon D. Rubin for Real Party in Interest and Appellant.

Herum Crabtree, Natalie M. Weber; Spaletta Law and Jennifer L. Spaletta for Plaintiffs and Respondents.

Law Offices of John Herrick and John Herrick for Real Party in Interest and Respondent Woods Irrigation Company.

Harris, Perisho & Ruiz and S. Dean Ruiz for Real Parties in Interest and Respondents Central Delta Water Agency and South Delta Water Agency.

Neumiller & Beardslee, DeeAnne M. Gillick and Elizabeth J. Morrell for Real Parties in Interest and Respondents San Joaquin County and San Joaquin County Flood Control & Water District.

RAYE, P. J.

Raising an important issue of first impression, customers[1] of Woods Irrigation Company (Woods), a water distribution corporation, contend the State Water Resources Control Board (Water Board) lacks jurisdiction to issue a cease-and-desist order (CDO) for an illegal diversion of water if the diverter claims riparian or pre-1914 appropriative rights. The Customers argue the Water Board must first file a civil lawsuit to adjudicate the diverter’s water rights before it can execute its statutory mandate to “take vigorous action... to prevent the unlawful diversion of water.” (Wat. Code, § 1825.) The trial court granted the Customers’ petition for a writ of mandamus limiting the Water Board’s jurisdiction and awarding attorney fees under the private attorney general doctrine. (Code Civ. Proc., § 1021.5.)

The Water Board granted the Customers’ request for reconsideration, thereby reopening the hearing on Woods’ diversions to allow the Customers the opportunity to submit evidence and cross-examine witnesses. We conclude the reconsideration order moots the due process issue, but the jurisdictional question remains of paramount public interest. We further conclude that pursuant to Water Code section 1831, the Water Board can make a preliminary determination for purposes of enforcement whether the diverter has either the riparian or pre-1914 appropriative rights it claims without filing a lawsuit. The diverter or interested parties can thereafter seek judicial review if warranted. We therefore reverse the judgment, including the award of attorney fees.

LEGAL AND FACTUAL CONTEXT[2]

The resolution of this appeal turns on the meaning of Water Code section 1831, which provides in relevant part:

“(a) When the board determines that any person is violating, or threatening to violate, any requirement described in subdivision (d), the board may issue an order to that person to cease and desist from that violation. [¶]... [¶]

“(d) The board may issue a cease and desist order in response to a violation or threatened violation of any of the following:

“(1) The prohibition set forth in Section 1052 against the unauthorized diversion or use of ...


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