237 Cal. App. 4th 411
Cal. Ct. App.2015Background
- Siskiyou County Farm Bureau sued the California Department of Fish and Wildlife (DFW) seeking a declaratory judgment that Fish & Game Code § 1602 does not require notification to DFW for water diversions that do not alter a streambed. The Farm Bureau challenged enforcement based on a departmental interpretation (the “Stopher criteria”) treating many watershed diversions as "substantial."
- The trial court found § 1602 ambiguous, relied on extrinsic materials, and entered judgment barring DFW from enforcing § 1602 against agricultural diverters who do not alter bed, bank, or channel.
- DFW appealed. The State Water Resources Control Board filed an amicus brief supporting DFW and emphasizing no conflict with water-right adjudication.
- § 1602 (current form) bars an entity from substantially diverting or obstructing natural flow, substantially changing or using material from bed/channel/bank, or depositing debris, unless notice and procedures (including arbitration) occur.
- The Court of Appeal held the statute unambiguous: "divert" includes taking water by pumping or pipes even absent streambed alteration; the statute imposes a notice requirement, not an immediate reallocation of water rights.
- The court reversed the trial judgment and directed entry of judgment for DFW, rejecting arguments based on absurd-results, constitutional-doubt, administrative interpretation, and alleged overlap with the State Water Resources Control Board.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1602 is ambiguous as to "divert" | "Divert" means altering or moving the streambed; mere pumping/extraction without bed alteration is outside § 1602 | "Divert" includes any substantial taking of water (pumps, pipes, etc.); statute requires notice regardless of streambed alteration | No ambiguity: "divert" unambiguously includes taking water without altering bed; statute requires notification |
| Whether extrinsic evidence (legislative history, dictionaries, administrative practice) supports Farm Bureau | Extrinsic materials and some historical focus on mining show Legislature intended to address streambed alteration, not routine agricultural pumping | Historical definitions, preexisting water-law usage, and later statutes show "divert" traditionally includes taking water by any means | Extrinsic evidence does not create a plausible alternative meaning sufficient to show latent ambiguity |
| Whether applying § 1602 to non-bed-altering diversions creates absurd results or constitutional (takings) doubt | Applying § 1602 broadly could effectively let DFW override water rights and produce absurd/constitutional problems | § 1602 is a notice/regulatory process (arbitration and review) that does not itself reallocate water or effect a taking; constitutional challenges are unripe | No absurd-result or constitutional-doubt basis to depart from plain meaning; notice requirement is procedural and does not itself effect a taking |
| Whether § 1602 enforcement intrudes on State Water Resources Control Board's authority over water rights | Enforcing § 1602 for routine diversions would duplicate or usurp Board authority to allocate water | The Department’s role is protective and consultative; statutory schemes and agency roles are complementary; potential conflicts addressed case-by-case | No impermissible delegation or conflict; § 1602 notification and remedial procedures coexist with Board authority |
Key Cases Cited
- Audubon Society v. Superior Court, 33 Cal.3d 419 (1983) (public trust doctrine and protection of navigable waters from diversion harms)
- People v. Murrison, 101 Cal.App.4th 349 (2002) (notice requirement under streambed statutes furthers state interest and takings challenge unripe)
- Alameda County Flood Control & Water Conservation Dist. v. Department of Water Resources, 213 Cal.App.4th 1163 (2013) (extrinsic evidence may reveal latent ambiguity only if statutory text is reasonably susceptible to the proffered meaning)
- Rutherford v. State of California, 188 Cal.App.3d 1267 (1987) ("substantial" in § 1602 has workable meaning; role of Department in determining impact)
- Willadsen v. Justice Court, 139 Cal.App.3d 171 (1983) (discussing historic statutory amendments and arbitration/penalty scheme under streambed protection statutes)