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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

Order Date Filed 9/20/13

APPEAL from a judgment of the Superior Court of San Joaquin County, Super. Ct. 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.

ORDER MODIFYING OPINION

THE COURT:

It is ordered that the opinion filed herein on September 4, 2013, be modified as follows:

1. On page 6, the first paragraph under the subheading “Mootness, ” beginning with “The Water Board raises, ” is modified to read as follows:

The San Luis & Delta-Mendota Water Authority raises the threshold question of mootness. It contends that when the Water Board granted the Customers’ petition for reconsideration and issued a new order, this appeal became moot. In reply, the San Luis & Delta-Mendota Water Authority withdraws its mootness argument. Regardless, this appeal is not moot for two simple reasons.

2. On page 6, the last sentence of the last paragraph under the subheading “Mootness, ” beginning with “The Water Board’s position, ” is deleted so that the paragraph read as follows:

Second, the jurisdictional question posed is of continuing public interest and importance. Therefore, even if the reconsideration order had reversed the Water Board’s assertion of jurisdiction, we would invoke the public interest exception to mootness.

There is no change in the judgment.

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 ...


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