California Court of Appeals, First District, First Division
October 14, 2014
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.
It is ordered that the opinion filed herein on September 11, 2014,
229 Cal.App.4th 879; ___ Cal.Rptr.3d ___, be modified as follows and the petition for rehearing is DENIED;
1. On page 6, in the first partial paragraph, the first full sentence beginning, "In May 2013" [229 Cal.App.4th 888, advance report, 1st full par., lines 4-5], is amended by substituting the phrase “a written statement of decision” for the phrase “an order.” The amended sentence reads:
In May 2013, the trial court issued a written statement of decision granting the requested writ.
2. On page 6, in the first partial paragraph, the third full sentence beginning, “In an oral statement" [229 Cal.App.4th 888, advance report, 1st full par., lines 9-10], is deleted in its entirety.
3. On page 12, footnote 10 [229 Cal.App.4th 893, advance report, fn. 10], is amended to read as follows:
10 While the trial court recognized its obligation to exercise independent judgment on the evidence, it adopted the “introduction and summary” in Millview’s memorandum of law and made no factual findings of its own. The parties have pointed to no material conflict in the evidence supporting the Board’s action, and, as discussed in detail below, the arguments of the parties raise primarily legal issues, to which we apply a de novo standard of review. (Cassidy v. California Bd. of Accountancy, supra, 220 Cal.App.4th at pp. 626–627.)
4. On page 19, in the first full paragraph, the second sentence of beginning “In a footnote" [229 Cal.App.4th 898, advance report, 3d par., lines 3-6], is
amended by changing the phrase, “drawing they prepared” to “drawing the SCWA prepared.” The amended sentence reads:
In a footnote in their brief, plaintiffs claim the place of use of the Waldteufel claim was the entirety of Lot 103, rather than merely the Waldteufel parcel, but the “evidence” they cite for the assertion is merely a drawing the SCWA prepared for the hearing, unsupported by any actual testimony or documentary evidence of historic water use.
5. On page 27, in the first full paragraph, at the end of the third sentence beginning, “Notwithstanding his posted notice" [229 Cal.App.4th 905, advance report, 1st full par., line 8], add as footnote 23 the following footnote, which will require renumbering of all subsequent footnotes:
In a petition for rehearing, Millview argues Waldteufel could have perfected an appropriative right by use of water on riparian lands merely by expressing an intent that his use be considered appropriative. In support, Millview cites only Rindge v. Crags Land Co. (1922) 56 Cal.App. 247 [205 P. 36], in which the plaintiff acquired appropriative rights by use of water on riparian land while the land was owned by the federal government, prior to her later acquisition of it. (Id. at p. 252.) Rindge held that the appropriative rights survived the purchase, although they resulted in no expansion of the plaintiff’s riparian rights. (Ibid.) Rindge concerns only such earlier acquired appropriative rights and contains no suggestion that a person who already owns riparian land can acquire appropriative rights by use of water on that land. Such a holding would be entirely inconsistent with the rules governing perfection of an appropriative right under California water law.
6. On page 32 [229 Cal.App.4th 909, advance report, 1st full par., line 2], add the following sentence at the end of part III:
The parties shall bear their own costs on appeal.
There is no change in the judgment.
The petitions for rehearing of appellant Sonoma County Water Agency and respondents Millview County Water District, Steven Gomes, and Thomas Hill are denied.