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Siskiyou County Farm Bureau v. Department of Fish and Wildlife

California Court of Appeals, Third District, Siskiyou

June 4, 2015

SISKIYOU COUNTY FARM BUREAU, Plaintiff and Respondent,

[As Modification on June 26, 2015]

APPEAL from a judgment of the Superior Court of Siskiyou County, No. SC CV CV 11-00418 Karen L. Dixon, Judge.

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Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, Randy L. Barrow, Gary Alexander, Ali A. Karaouni, and Deborah L. Barnes, Deputy Attorneys General, for Defendant and Appellant.

David R. Owen for Law Professors as Amicus Curiae on behalf of Defendant and Appellant.

Shute, Mihaly & Weinberger, Ellison Folk, Amy J. Bricker; Trout Unlimited and Brian J. Johnson for California Trout as Amicus Curiae on behalf of Defendant and Appellant.

Earthjustice, Trent W. Orr and Wendy S. Park for Karuk Tribe, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, and Klamath Riverkeeper as Amici Curiae on behalf of Defendant and Appellant.

Michael A.M. Lauffer, Andrew H. Sawyer, Carlos A. Mejia and Nicole L. Kuenzi for State Water Resources Control Board as Amicus Curiae on behalf of Defendant and Appellant.

Briscoe Ivester & Bazel, David Ivester; Law Office of Darrin W. Mercier and Darrin W. Mercier for Plaintiff and Respondent.

Somach, Simmons & Dunn and Daniel Kelly for Northern California Water Association as Amicus Curiae on behalf of Plaintiff and Respondent.

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Pacific Legal Foundation, M. Reed Hopper and Anthony L. Francois for Pacific Legal Foundation and California Cattlemen’s Association as Amici Curiae on behalf of Plaintiff and Respondent.



The Department of Fish and Wildlife (Department) appeals from a judgment in favor of the Siskiyou County Farm Bureau (Farm Bureau), interpreting a statute requiring notification when an entity plans to “substantially divert” water from a river or stream.

We shall reverse because the trial court incorrectly found the statute, Fish and Game Code section 1602, [1] to be ambiguous, and then resolved the perceived ambiguity in a manner inconsistent with the plain language of the statute.

Regardless of an entity’s legal right to take water, such as for agricultural purposes, and regardless of whether the taking alters the streambed itself, section 1602, subdivision (a) unambiguously requires notification to the Department if an entity plans to “substantially divert” water. After notification, a statutory mechanism--arbitration followed by court review--exists to resolve disputes about diversions. This notification requirement neither encroaches on any entity’s water rights, nor impairs the powers and duties of the State Water Resources Control Board (Board), which has filed an amicus curiae brief fully supporting the Department’s position.[2]

As we will explain, the trial court appears to have been led astray by a questionable and aborted enforcement policy issued by a single Department employee (the “Stopher criteria”), as well as the deluge of extrinsic material proffered by the Farm Bureau in its effort to demonstrate a latent ambiguity in the statute. As we have recently cautioned, although extrinsic evidence may reveal a latent ambiguity in a statute, such ambiguity must reside in the statutory language itself. It cannot exist in the abstract, or by ignoring the statutory language. (See Alameda County Flood Control & Water Conservation Dist. v. Department of Water Resources (2013) 213 Cal.App.4th 1163, 1179-1180, 1188-1190, 1195 [152 Cal.Rptr.3d 845] (Alameda).) Here, the extrinsic evidence reveals no ambiguity in the statute: The term “divert” had a long-established meaning in the context of water law before enactment of the statute, and we presume the Legislature was aware of that meaning when it used divert as it did in section 1602.

If the Farm Bureau and allied amici curiae believe the statute as written reflects poor public policy, a remedy lies “on the other side of Tenth Street, in

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the halls of the Legislature.” (Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703,711 [252 Cal.Rptr. 613].)


The Farm Bureau filed a complaint for declaratory relief alleging that for over a century “ranchers and farmers in Siskiyou County have extracted water from streams and rivers to irrigate crops and pastures, to water livestock, and for use in their homes and businesses. Not until now, some fifty years after the legislature adopted... sections 1600 et seq., has [the Department] asserted that [such extraction] requires compliance with section 1602 regardless of whether there is any alteration of a river, stream, or lake.” Farmers and ranchers either had to comply with this new interpretation or risk “civil and criminal prosecution. For this reason, [the Farm Bureau] brings this action for declaratory relief to clarify the rights and duties of its members under... section 1602 who do not alter the streambed in exercising their water rights.” The purportedly new interpretation referenced by the complaint was related to but not limited by the Stopher criteria, which presumed that any diversion of water within the relevant watershed was a substantial diversion within the meaning of section 1602.

The Department unsuccessfully moved for judgment on the pleadings, and the parties then contested whether or not the statute--as proposed to be applied--was ambiguous. The trial court found it was.

To resolve the question of statutory ambiguity, the trial court considered extrinsic evidence and resolved the purported ambiguity against the Department, which timely appealed from a judgment prohibiting it from “bringing enforcement action against agricultural water diverters for failing to notify the department of the diverter’s intention to lawfully exercise his water right absent alteration to the bed, bank, or stream.”


The trial court found the statute’s plain meaning supported the Department’s view that the word divert encompassed diversions that did not alter the streambed itself, but found there was a latent ambiguity and applying the plain meaning would lead to absurd results, raise doubts about the constitutionality of the statute, and cause a conflict between the Department’s duties and the Board’s duties.

We agree with the trial court that the plain meaning of the statute supports the Department’s position. Our agreement, however, ends there. Although the Department’s interpretation of the statute plausibly accounts for the statutory

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language, the Farm Bureau has not proffered a candidate of meaning that also plausibly accounts for the statutory language, and therefore has failed to show an ambiguity in the statute when the rules governing statutory ambiguity are correctly applied. None of the extrinsic evidence tendered by the Farm Bureau changes this conclusion. We reject the trial court’s conclusion that the absurd result or constitutional doubt rules require departing from the plain meaning of the statute, as well as its finding that application of section 1602’s plain meaning would allow the Department to intrude into the Board’s bailiwick.

We shall reverse with directions to enter judgment in favor of the Department.


The Meaning of Divert in Section 1602

Section 1602 now provides in relevant part: “An entity may not substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake, unless all of the following occur [listing notification and other requirements.]” (§ 1602, subd. (a).)

The trial court found the plain meaning of divert as used in section 1602 was broad and supported the Department’s position herein. Yet the trial court then found a latent ambiguity in the term. As we now explain, there is no semantic ambiguity as posited by the Farm Bureau, latent or otherwise.

First, we review some basic principles of California water law, to establish the background for the specific legislation at issue. (Part I-A, post.) Next, we briefly describe the devastating effect of the Gold Rush on California’s rivers and streams, again to provide background for the relevant legislation. (Part I-B, post.) We then describe the history of section 1602. (Part I-C, post.) We then discuss early interpretations of section 1602. (Part I-D, post.) Finally, we consider whether any proffered extrinsic evidence establishes an alternative equally plausible candidate of meaning of divert as used in section 1602, and conclude no such alternative meaning has been demonstrated. (Part I-E, post.)

A. Basic California Water Law Principles

Because the trial court spent much time on basic water law principles which are assumed by the parties, we provide the reader with a brief summary, taken from a recent case:

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“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. [Citations.] 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 through which flowing water passes, and ‘appropriators, ’ those who hold the right to divert such water for use on noncontiguous lands. [Citation.] For historical reasons, California further subdivides appropriators into those whose water rights were established before and those after 1914. Post-1914 appropriators may possess water rights only through a permit or license issued by the Board, and their rights are circumscribed by the terms of the permit or license....

“The nature of the water rights held by riparian users and appropriators differs in several ways. Most pertinent to the matter at hand are the limits placed on diversion. Although riparian users must share with other riparian users on the watercourse, there is no predetermined limit on the amount of water an individual riparian user may divert, so long as the uses to which the diverted water is put are riparian, beneficial, and reasonable. [Citation.] Appropriators, in contrast, may divert only so much water as is authorized by their particular water right....[¶]... [¶]

“[W]ater use by both appropriators and riparian users is limited by the ‘reasonable use’ doctrine, which forbids the waste of water or its unreasonable use.” (Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 888-890 [177 Cal.Rptr.3d 735], fns. omitted.)[3]

In addition, the public trust doctrine vests the state with sovereign authority over all navigable waterways. (See National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 433-441 [189 Cal.Rptr. 346, 658 P.2d 709] (Audubon).) "It is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.” (Id. at p. 441.) An overarching principle is that “the general welfare requires that the water resources of the state be put to beneficial use to the fullest extent to which they are capable, and that the waste or unreasonable use of water must be prevented [citations]. [¶] Just as the State of California holds all of its navigable waterways and the lands lying beneath them as a trustee of a public

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trust for the benefit of the People [citation], the state acts as a trustee of all waters for the benefit of the People of the State [citation].” (People v. Weaver (1983) 147 Cal.App.3d Supp. 23, 28-29 [197 Cal.Rptr. 521], fn. omitted (Weaver).)[4]

In all contexts, water use must be reasonable, as stated by our Supreme Court: “It is well established that what is a reasonable use of water varies with the facts and circumstances of the particular case. [Citations.] [T]he reasonableness of a riparian use cannot be determined without considering the effect of such use on all the needs of those in the stream system [citation], nor can it be made ‘in vacuo isolated from statewide considerations of transcendent importance.’ [Citation.] These statewide considerations are that ‘limited water resources be put only to those beneficial uses “to the fullest extent of which they are capable, ” that “waste or unreasonable use” be prevented, and that conservation be exercised “in the interest of the people and for the public welfare.” (Cal. Const., art. XIV, § 3 [now art. X, § 2].)’ ” (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 354 [158 Cal.Rptr. 350, 599 P.2d 656] (Long Valley); see Light v. State Water Resources Control Bd. (2014) 226 Cal.App.4th 1463, 1479-1480 [173 Cal.Rptr.3d 200].)

B. The California Gold Rush and Aftermath

“Over [150 years ago], gold drew throngs of adventurers to early mining communities in the Sierra Nevada. When the halcyon years were over, a few earnest argonauts decamped and went to the river bottoms, and pointed great water cannons, called monitors, at the hillsides hoping to dislodge sparkles of gold from the sandy detritus.... [¶] Although considerable quantities of gold washed down and were separated from the gravel, the hydraulic mines annually discharged 600, 000 cubic yards of debris, which soon choked the American and Sacramento Rivers with tailings, raised the beds of these

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rivers, impairing navigability, fouling the waters, and angering farmers. [¶] Amid political turmoil, the matter finally reached our high court, which held that an injunction should issue, based upon the premise that the rights of the people in navigable rivers were paramount, and that any intrusions upon that right constituted a nuisance.” (Weaver, supra, 147 Cal.App.3d at p. Supp. 30; see Audubon, supra, 33 Cal.3d at p. 436 [damage from mining debris]; Paterno v. State of California (2003) 113 Cal.App.4th 998, 1005 [6 Cal.Rptr.3d 854] [observing that the “damage [from hydraulic mining] is indescribable, and must be seen at the Malakoff Diggins State Historic Park to be believed”].)

C. The Origin of Section 1602

The injunctive relief just mentioned (see People v. Gold Run Ditch & Mining Co. (1884) 66 Cal. 138 [4 P. 1152]; see also Woodruff v. North Bloomfield Gravel Min. Co. (1884) 18 Fed. 753) had significant consequences:

“[These] decision[s] led to the virtual demise of hydraulic mining, and the Legislature finally responded by declaring that hydraulic mining could only be carried on if it could be done without material injury to navigable streams or the lands adjacent thereto [citation].... In addition, one who desires to [deflect], alter or divert the course of a nonnavigable stream in any ...

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