California Court of Appeals, First District, First Division
MILLVIEW COUNTY WATER DISTRICT et al., Plaintiffs and Respondents,
STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant SONOMA COUNTY WATER AGENCY et al., Interveners and Appellants.
[As Modification on October 14, 2014]
Mendocino County Super. Ct. County, No. S.C. UK CVPT 1259715 Hon. Leslie D. Nichols (Retired Judge of the Santa Clara Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
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Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, Gavin G. McCabe and William Jenkins, Deputy Attorneys General, for Defendant and Appellant State Water Resources Control Board.
Bartkiewicz, Kronick & Shanahan, Alan B. Lilly, Andrew J. Ramos; Bruce Goldstein, County Counsel, and Cory W. O’Donnell, Deputy County Counsel, for Intervener and Appellant Sonoma County Water Agency.
Law Office of Michael R. Woods and Michael R. Woods for Intervener and Appellant Mendocino County Russian River Flood Control and Water Conservation Improvement District.
Neary and O’Brien, Christopher J. Neary and Jennifer O’Brien for Plaintiffs and Respondents Millview County Water District.
Carter, Momsen & Knight, Jared G. Carter, Matisse M. Knight and Alexander C. Rich for Plaintiffs and Respondents Steven L. Gomes and Thomas P. Hill.
Margulies, Acting P. J.
In 2001, plaintiff Millview County Water District (Millview) began diverting water from the Russian River under the authority of a pre-1914 appropriative water right assigned to Millview by plaintiffs Thomas Hill and Steven Gomes. On the basis of a citizen complaint, and following an evidentiary hearing, defendant State Water Resources Control Board (Board) issued a cease and desist order (CDO) substantially restricting Millview’s diversion of water under the right, finding it had been largely forfeited by a period of diminished use from 1967 through 1987.
Millview, Hill, and Gomes (together, plaintiffs) filed a petition for a writ of mandate requiring the Board to set aside the CDO, contending, among other things, the Board lacked jurisdiction to limit appropriation under a pre-1914 water right and the evidence did not support the Board’s finding of a forfeiture because there was no evidence of a timely adverse claim of use. The trial court accepted the arguments and granted the writ.
We affirm the trial court’s issuance of a writ directing the Board to set aside its decision, although on narrower grounds. We conclude the Board does have jurisdiction under Water Code section 1831 to issue a CDO precluding excessive diversion under a pre-1914 right to appropriate and the Board properly determined the original perfected scope of the claim. We conclude, however, the Board applied an incorrect legal standard in evaluating the forfeiture of Millview’s claimed water right and, applying the proper legal standard, the evidence before the Board was insufficient to support a finding of forfeiture. We remand to the Board for reconsideration in light of our decision.
Millview is a county water district formed to supply water service in an unincorporated area of Mendocino County. In February 2006, a private citizen filed a complaint with the Board, contending that a water right claimed by Millview to support its diversion of water from the Russian River did not authorize the diversion because the right was (1) riparian rather than appropriative and (2) forfeited by long nonuse. Following an investigation, the Board’s Division of Water Rights (Division) issued a memorandum concluding Millview’s water right, which we will refer to as the “Waldteufel claim, ” was a valid pre-1914 appropriative right, but the Division agreed use rights under the Waldteufel claim had been largely forfeited. In April 2009, the Board issued a notice of a proposed CDO limiting Millview’s diversion of water under the Waldteufel claim to a maximum rate of 1.1 cubic feet per second (cfs) and a total volume of 15 acre feet per year (afa). Hill and Gomes, who had assigned the Waldteufel claim to Millview, and Millview disputed the Board’s conclusions and requested a hearing on the proposed CDO.
The evidence presented to the Board demonstrated the Waldteufel claim originated in connection with a 165-acre Mendocino County parcel referred to as “lot 103 of the Rancho Yokayo” (Lot 103). Lot 103 was bounded on one side by the west fork of the Russian River and located just north of the conjunction of the river’s east and west forks to form the main stem of the
river. In 1913, one J.A. Waldteufel acquired a 33.88-acre parcel subdivided from Lot 103 (Waldteufel parcel), also bounded on one side by the west fork of the river.
The next year, on March 24, Waldteufel recorded a notice of appropriation of water, claiming “One Hundred (100) inches measured under a four inch pressure” for domestic and agricultural use “upon the lands owned by me, ... contiguous to [the Russian River]... on Lot #103 of Healeys survey and Map of Yokayo Rancho.” The Board accepted that this rate of diversion represented a maximum annual volume of approximately 1, 450 afa. Waldteufel’s notice stated that a copy had been posted “at the point of intended diversion” on the west fork of the river. A local resident, born in 1914, recalled subsequent owners of the Waldteufel parcel pumping water from the river for “at least 50 years” to irrigate alfalfa and tree crops. Plaintiffs submitted testimony from an expert who estimated that, in 1913, a grower would have used between 932 and 1, 310 afa, applied between April and October, to irrigate a 165-acre crop of alfalfa.
The Waldteufel parcel passed through several hands before being acquired by Lester and Bertha Wood in 1945. Between 1967 and 1987, Lester Wood filed statements of water diversion and use with the Board, typically claiming water use equivalent to between 7.5 and 15 afa to irrigate 30 acres of grapes and walnuts. Historic river flow data suggest the Woods’ diversions were not limited by the supply of available water. The Waldteufel parcel appears to have remained in the Wood family until it was sold to Hill and Gomes in 1998. There is no data in the record regarding the volume of diversion under the Waldteufel claim for any other period before the beginning of Millview’s diversions.
In 2002, Hill and Gomes assigned the Waldteufel claim to Millview, with an option to purchase that Millview later exercised. Millview constructed a new point of diversion in the main stem of the Russian River, downstream from the confluence of the two forks, where the flow of water is greater and more reliable than on the west fork. Because Millview diverted water year-round to supply homes, including both homes constructed on the Waldteufel parcel and those elsewhere within Millview’s boundaries, it expanded the nature and location of water use and the timing of diversions, compared with
the prior owners, who appear to have used the claim primarily for agricultural purposes in the dry season. During the years for which information is available in the record, 2001 through 2008, Millview’s diversions varied from a low of 3.76 acre-feet in the first year to a high of 1, 174.75 acre-feet in the year prior to the filing of the citizen complaint.
The lower Russian River is a managed water system. Water that would otherwise flow into the river during the rainy season is retained and stored in two reservoirs managed by the Sonoma County Water Agency (SCWA). During the dry portion of the year, the SCWA releases water to maintain minimum river flow levels established in standards adopted by the Board. In theory, at least, any excess diversion of water by Millview during the dry season must be compensated by increased water releases from these dams to maintain the minimum flow level. In an order apparently issued in 1998, the Board had determined the west and east forks of the Russian River and “a portion of the mainstem within Mendocino County” are fully appropriated from July 1 to October 31.
Based on this evidence, the Board issued a CDO limiting Millview’s diversion under the Waldteufel claim to 15 afa, taken only during the period April through September. Relying on the evidence discussed above, the Board concluded there was no evidence Waldteufel used the diverted water on any property other than the 33.88-acre parcel he purchased in 1913. As a result, the Board noted, “it does not appear” that the Waldteufel claim was ever perfected as a right of appropriation, since Waldteufel’s use of water for irrigation on the Waldteufel parcel would have been allowed by the riparian rights available to a parcel adjoining the river. While a finding to this effect would have precluded any appropriation under the claim, the Board did not base its order on this theory because its notice of a proposed CDO did not raise as an issue the validity of the Waldteufel claim. The Board’s decision did, however, caution that “the validity of the Waldteufel claim of right in its entirety is questionable.”
Accepting the Waldteufel claim as appropriative, the Board found plaintiffs had failed to prove Waldteufel had ever actually diverted or used the maximum claimed volume of approximately 1, 450 afa. The Board found reasonable Millview’s expert evidence regarding the volume of irrigation water that would have been used to irrigate alfalfa in Waldteufel’s day, but because it found no evidence he had actually irrigated more than the 33.88-acre parcel he purchased, rather than the full 165 acres of Lot 103 as assumed by the expert, the Board reduced the estimate of Waldteufel’s total use proportionately. By assuming the expert’s rate of irrigation was used on
the smaller parcel, the Board found actual use of between 173 afa and 243 afa, diverted from April through early October. However, the Board further found from evidence of the Wood family’s usage that any perfected volume above 15 afa, the maximum documented annual usage by Wood over 20 years, had been forfeited due to nonuse. Given the change in location of the point of diversion, the change in the purpose for the diversion, Millview’s service area of 8 to 10 square miles, and Millview’s actual diversions in excess of 15 afa, the Board concluded there was a risk Millview would exceed the authorized volume of diversion under the Waldteufel claim. The Board also found excess diversion would be harmful to other users, given the complete appropriation of the river during the months available for diversion under the claim.
Millview, Hill, and Gomes filed a petition for a writ of mandate requiring the Board to set aside the CDO. The trial court granted motions to intervene by appellants SCWA and Mendocino County Russian River Flood Control and Water Conservation Improvement District (Mendocino District).
In May 2013, the trial court issued a written statement of decision granting
the requested writ. The court concluded, without explanation, that the Board abused its discretion because “the findings essential to the cease and desist orders are not supported by the weight of the evidence” and “proceeded without or in excess of its jurisdiction in issuing the cease and desist orders.” The Board, SCWA, and Mendocino District have appealed the court’s judgment.
A. Legal Background
1. Water Rights in California
Ownership of California’s water is vested generally in the state’s residents, but individuals and entities can acquire “water rights, ” the right to divert water from its natural course for public or private use. (§ 102; see generally United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 100 [227 Cal.Rptr. 161] (United States).) California maintains a “dual system” of water rights, which distinguishes between the rights of “riparian” users, those who possess water rights by virtue of owning the land by or ...