MILLVIEW COUNTY WATER DISTRICT et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant; SONOMA COUNTY WATER AGENCY et al., Interveners and Appellants.
No. A139481
First Dist., Div. One
Sept. 11, 2014
879
COUNSEL
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.
OPINION
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.
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
I. BACKGROUND
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 point at which the river‘s east and west forks join to form the main stem of the
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.2 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 1998.3 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.4 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 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 31.5
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
Plaintiffs 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.
II. DISCUSSION
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. (
Dorado Irrigation Dist. v. State Water Resources Control Bd. (2006) 142 Cal.App.4th 937, 961 [48 Cal.Rptr.3d 468].) For historical reasons, California further subdivides appropriators into those whose water rights were established before and those after 1914.7 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. Riparian users and pre-1914 appropriators need neither a permit nor other governmental authorization to exercise their water rights. (California Farm Bureau Federation v. State Water Resources Control Bd. (2011) 51 Cal.4th 421, 428–429 [121 Cal.Rptr.3d 37, 247 P.3d 112].)
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. (See Phelps v. State Water Resources Control Bd. (2007) 157 Cal.App.4th 89, 116, 118–119 [68 Cal.Rptr.3d 350] (Phelps) [explaining criteria for “riparian” use].) Appropriators, in contrast, may divert only so much water as is authorized by their particular water right. (Pleasant Valley Canal Co. v. Borror, supra, 61 Cal.App.4th at p. 776.) For pre-1914 appropriators, that volume is determined by historical use, as discussed in more detail below. For post-1914 appropriators, who possess no diversion rights apart from those granted by the Board, the limit on their water usage is established by their permit. (
In addition, appropriators must “use it or lose it.” “[D]ue to the scarcity of water generally in California, its societal importance, and the peculiar nature of common and multiple rights to water from the same watercourse, the courts have recognized that water rights may be forfeited through nonuse under certain circumstances.” (North Kern Water Storage Dist. v. Kern Delta Water Dist. (2007) 147 Cal.App.4th 555, 559 [54 Cal.Rptr.3d 578] (North Kern II).) Under
The two types of rights holders are also treated differently when the available supply of water is insufficient to satisfy the needs of all those holding water rights in a particular watercourse. Under the “rule of priority,” which governs water use in such circumstances, the rights of riparian users are paramount. Although riparian users must curtail their use proportionately among themselves in times of shortage, they are entitled to satisfy their reasonable needs first, before appropriators can even begin to divert water. (United States, supra, 182 Cal.App.3d at p. 104.) As a result, appropriators may be deprived of all use of water when the supply is short. In turn, senior appropriators—those who acquired their rights first in time—are entitled to satisfy their reasonable needs, up to their full appropriation, before more junior appropriators are entitled to any water. (Id. at pp. 104–105; North Kern II, supra, 147 Cal.App.4th at p. 561.)
Finally, water use by both appropriators and riparian users is limited by the “reasonable use” doctrine, which forbids the waste of water or its unreasonable use. (
2. Pre-1914 Appropriation Rights
Prior to the December 1914 effective date of the Water Commission Act (Stats. 1913, ch. 586, p. 1012), there were two ways to establish a right to appropriate water from a California watercourse.8 The first dated to statehood: to begin diverting water and applying it to a beneficial use. (N. C. & S. C. Co. v. Kidd (1869) 37 Cal. 282, 311–312.) Once a would-be diverter took some act manifesting an intent to appropriate water, he or she established a claim to the volume of water reasonably necessary to serve the purpose for which the diversion was sought. So long as the diverter acted with due diligence to achieve the intended diversion, did in fact divert within a reasonable time, and used the diverted water for a beneficial purpose, the claim was perfected and had priority over any later established claim. (Haight v. Costanich (1920) 184 Cal. 426, 431–433 [194 P. 26].) The second method, illustrated by Waldteufel‘s conduct, became available with the 1872 passage of
As noted above, pre-1914 appropriation rights are subject to forfeiture for nonuse. Although there is some uncertainty whether
3. The State Water Resources Control Board
The Board was created as the State Water Commission in 1913 to administer the appropriation of water for beneficial purposes. As originally created, the Board had the “limited role” of granting use rights to water that was not being applied to beneficial purposes and was not otherwise appropriated. (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 442 [189 Cal.Rptr. 346, 658 P.2d 709] (Audubon Society).) “[T]he function of the Water Board was restricted to determining if unappropriated water was available; if it was, and no competing appropriator submitted a claim, the grant of an appropriation was a ministerial act.” (Ibid.) By imposing a
As currently constituted, the Board “has been granted broad authority to control and condition water use, insuring utilization consistent with public interest.” (Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist. (1977) 20 Cal.3d 327, 342 [142 Cal.Rptr. 904, 572 P.2d 1128].) Its enabling statute,
4. Review of Board Decisions
Trial court review of a Board CDO is conducted pursuant to
B. The Board‘s Jurisdiction
In ruling the Board acted in excess of its jurisdiction in entering the CDO, the trial court apparently accepted plaintiffs’ argument that the Board lacks jurisdiction to issue a CDO with respect to water diverted pursuant to a pre-1914 right of appropriation. Appellants contend, and we agree, the trial court‘s ruling was erroneous on this point.
In a decision rendered after entry of the trial court‘s order, Young v. State Water Resources Control Bd. (2013) 219 Cal.App.4th 397 [161 Cal.Rptr.3d 829] (Young), the Third Appellate District resolved this issue in favor of jurisdiction. In Young, the Board had issued a draft CDO challenging the right of a “water distribution corporation” in the Sacramento-San Joaquin River Delta to divert water. (Id. at p. 400.) After the corporation provided evidence it possessed a pre-1914 right to appropriate, the Board issued a CDO limiting the corporation‘s diversion to the amount allowed by that right. (Id. at pp. 401–402.) The petitioners, customers of the corporation, successfully sought a writ of mandate, arguing the “. . . Water Code does not provide the authority to the [Board] to adjudicate the validity, the extent, or the forfeiture of riparian or pre-1914 appropriative rights.” (Id. at p. 403.) The court acknowledged the long-standing rule that the Board “does not have jurisdiction to regulate riparian and pre-1914 appropriative rights.” (Id. at p. 404.) Yet it also noted the Board “‘does have authority to prevent illegal diversions and to prevent waste or unreasonable use of water, regardless of the basis under which the right is held.‘” (Ibid.) The court harmonized these potentially conflicting principles by noting a permit is required for the diversion of certain categories of water and the Board has the authority under
Young‘s reasoning is straightforward and persuasive. In order to exercise the authority given to it under
Plaintiffs argue Young holds only that the Board can make the preliminary determination of whether a claimed pre-1914 right of appropriation was validly established, not the further issue of the scope of the right granted. While it is true the only issue directly raised by the facts in Young
Plaintiffs’ further argument that the Board must file a judicial proceeding to determine the proper scope of a pre-1914 water right is both inconsistent with the plain language of
The Legislature‘s intent to expand the Board‘s authority into territory formerly occupied by the courts is made clear from the progression of legislation in this area. As originally enacted in 1980,
C. The Original Perfected Scope of the Waldteufel Claim
The Board‘s decision reached three separate conclusions, one of them only tentative, about the scope of the Waldteufel claim. As discussed above, the Board concluded the claim (1) was never perfected for more than 243 afa by Waldteufel, (2) had been reduced by forfeiture to 15 afa, and (3) might not be a proper claim of appropriation at all, since there was no evidence Waldteufel ever made appropriative use of water under the claim. In seeking to uphold the trial court‘s decision, plaintiffs contest all three of these conclusions. We begin with the Board‘s finding of the original perfected scope of the claim.
Plaintiffs contend the Board applied an incorrect legal standard in concluding the Waldteufel claim had never been perfected for diversion greater than 243 afa. In reaching its conclusion, the Board applied the long-standing rule that an appropriator acquires the right to divert no greater volume of water than he or she has actually put to beneficial use. As held in Hufford v. Dye, supra, 162 Cal. 147: “It is the well-settled law of this state that one making an appropriation of the waters of a stream acquires no title to the waters but only a right to their beneficial use and only to the extent that they are employed for that purpose. His right is not measured by the extent of his appropriation as stated in his notice or by his actual diversion from the stream, but by the extent to which he applies such waters for useful or beneficial purposes.” (Id. at p. 153, italics added; see Haight v. Costanich, supra, 184 Cal. 426, 431 [“The quantity of water to which a person becomes entitled by such diversion is not determined by the capacity of the ditch diverting the water; the extent of the right gained by the diversion is limited to the amount of water applied to a beneficial use . . . .“]; Trimble v. Hellar (1913) 23 Cal.App. 436, 443 [138 P. 376].)
Plaintiffs’ argument that the Board misapplied the law depends upon a purported distinction between common law pre-1914 appropriation rights
The Civil Code provisions governing a notice of water rights claim do require a claimant to specify a rate of flow in the notice. (
The sole case cited by plaintiffs in support of their claim that appropriations gained through notice are treated differently than those gained by actual diversion makes no such distinction. (Simons v. Inyo Cerro Gordo Co. (1920) 48 Cal.App. 524, 537–538 [192 P. 144] [holding “the most essential element to the legal appropriation of water is its application within a reasonable time to some useful purpose of industry“].) Nor is such a distinction consistent with the policy underlying California water law. The
Even if plaintiffs’ legal argument had merit, they failed to provide the necessary evidentiary support for their claim before the Board. Their argument is premised on Waldteufel‘s claim to a flow of water “under a four inch pressure,” which they assert represented a flow rate of 2 cfs. As discussed above, however, the scope of a pre-1914 claim is not determined by the amount claimed or the amount diverted, but by the amount actually used by the claimant. Further, a claimant‘s use rights are limited to the season and even the time of day or week when the claimant actually used water. (Bazet v. Nugget Bar Placers, Inc. (1931) 211 Cal. 607, 616 [296 P. 616] [appropriator only acquired right to use water during time of year and time of day when actually used]; Santa Paula Water Works v. Peralta (1896) 113 Cal. 38, 42, 44 [45 P. 168] [diverter who used 50 inches of water once per week for 24 hours limited to such use by doctrine of forfeiture].) If plaintiffs were to acquire the right to divert a two-cfs rate of flow at any time of day and year, as they now contend, they were required to demonstrate Waldteufel actually diverted this rate of flow in the same manner—in effect, whenever it was available. As discussed above, plaintiffs failed to prove Waldteufel‘s continuous diversion of two cfs; at most, they demonstrated Waldteufel‘s annual use of 243 afa, as the Board found.
As best we can determine, plaintiffs do not otherwise argue that the Board‘s determination of the maximum perfected scope of the Waldteufel claim constituted an abuse of discretion.15 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.16 Plaintiffs’ argument from this exhibit is apparently that Waldteufel‘s supply of water to the remainder of Lot 103 can be inferred
D. The Board‘s Determination of Forfeiture
For the reasons stated above, we find no error in the Board‘s conclusion that the maximum permissible diversion under the Waldteufel claim, based on the original perfected scope of the claim, is 243 afa. The Board‘s order did not allow Millview to divert 243 afa under the claim, however, but further reduced Millview‘s diversion to 15 afa, based on a finding of forfeiture. We now turn to this conclusion.
Plaintiffs contend the trial court‘s ruling should be affirmed because the Board‘s forfeiture finding was not supported by the evidence and resulted from the application of an incorrect legal standard. Relying on North Kern II and a prior nonpublished decision in the same action, which we will refer to as ”North Kern I,” plaintiffs argue (1) a forfeiture cannot occur in the absence of a “clash of rights,” the assertion of a conflicting claim to the water rights in question, and (2) the five-year period for measuring the degree of forfeiture is the five years immediately preceding assertion of this conflicting claim. The Board, in contrast, based its ruling of forfeiture on water use two decades before the administrative proceeding, without evidence of the type of conflicting claim required by North Kern II. Because we agree the Board‘s forfeiture decision was not supported by evidence of the requisite clash of rights, we need not address plaintiffs’ second contention.
The plaintiff in North Kern I sought a declaration that the defendant had forfeited a significant portion of its pre-1914 appropriative water rights. As explained in that decision, the entire natural flow of the subject watercourse, the Kern River, had been fully appropriated and beneficially used since the late the entirety of Lot 103. We have reviewed this evidence and conclude none of it provides the slightest indication of Waldteufel‘s actual water use.
We agree with the premise underlying North Kern II that forfeiture of a water rights claim does not occur in the abstract, merely because an appropriator uses less water than the maximum claimed appropriation for a five-year period. What is required for forfeiture is not merely nonuse by the rights holder of its full appropriation, but also the presence of a competing claim to the unused water by a rival diverter who is prepared to use, or is using, the surplus. Although the principle appears not to have been announced explicitly by earlier California decisions, we have not located any finding of a forfeiture in the absence of an existing or potential competing claim.19 Perhaps more to the point, there is no policy reason for finding a
While we agree forfeiture requires a conflicting claim, the requisite form of that conflicting claim is a separate question, and on this issue we part ways with North Kern II. The requirement in North Kern II, supra, 147 Cal.App.4th at pages 560, 566, that the conflicting claim consists of a formal notice communicated to the rights holder and a response by the rights holder was imposed primarily as a means for determining the timing of the five-year period in a very complex set of circumstances. While the requirement may have been appropriate in that factual setting, there is no authority to support its imposition in all circumstances. On the contrary, prior decisions have demonstrated far more flexibility, requiring no particular manner of asserting a conflicting claim beyond adverse appropriation and use of the surplus water.20 Further, the North Kern II ruling appears to rest on a legally flawed premise. The court based its imposition of the formal claim requirement on its conclusion that any water use by an adverse claimant prior to the assertion of such a formal claim was “permissive” by the original water rights holder and therefore could not constitute a basis for forfeiture. (Id. at p. 567.) This analysis conflates the concepts of adverse possession and forfeiture, which are separate and independent doctrines. We have found no authority for the court‘s holding that a forfeiture cannot occur if an adverse claimant‘s use would qualify as permissive under the law of adverse possession. On the contrary,
113 Cal. at pages 42-43 (plaintiff had used defendant‘s unused water for nearly 20 years); Smith, supra, 110 Cal. at page 127 (forfeiture prohibits retention of rights “as against other appropriators“).
In determining the nature of a conflicting claim in the circumstances presented here, we find instructive an Idaho decision, Sagewillow v. Idaho Dept. of Water Resources (2003) 138 Idaho 831 [70 P.3d 669] (Sagewillow), which the North Kern II court declined to consider.21 Idaho statutory law contains a forfeiture provision essentially identical to
While California courts have never expressly adopted a “resumption of use” doctrine, our water law achieves the same result. As discussed above,
The characterization of a conflicting claim in Sagewillow is consistent with California authority. (Sagewillow, supra, 70 P.3d at p. 680.) In general terms, a conflicting claim has been asserted if another claimant has actually appropriated the water otherwise covered by the original claim and has perfected that appropriation by making beneficial use of the surplus water, or has attempted to appropriate the water by instituting proceedings to establish a right—for example, in California, by seeking a permit from the Board to appropriate the surplus water or by commencing a legal action for a declaration of rights. (Ibid.; see, e.g., Bazet v. Nugget Bar Placers, Inc., supra, 211 Cal. at pp. 617-618 [defendant forfeited right to stored and unused water when others were willing to use water]; Lindblom v. Round Valley Water Co., supra, 178 Cal. at p. 452 [forfeiture found after plaintiff purchased land below dam and was prepared to use excess water]; Santa Paula Water Works v. Peralta, supra, 113 Cal. at pp. 42-43 [plaintiff had used defendant‘s unused water for nearly 20 years]; Trimble v. Hellar, supra, 23 Cal.App. at p. 444 [forfeiture occurs through “nonuse[] for a long period of time and the appropriation of the water meantime by another appropriator“].) So long as the original claimant‘s use of less than the full appropriation lasts for at least five years and does not end before the assertion of this type of conflicting claim, a forfeiture occurs.
Judged by this standard, we find no substantial evidence in the administrative record to support the Board‘s finding of forfeiture. In attempting to square its decision with North Kern II, the Board found a clash of rights between Millview, on the one hand, and SCWA and Mendocino District. According to the Board, the clash of rights existed because increased diversion by Millview requires similarly increased dam releases, thereby “adversely affect[ing] SCWA‘s ability to store water” and conflicting with Mendocino District‘s “rights to store water.” The exercise of these storage rights, however, does not constitute an appropriative use of water, which is required to create a conflicting claim that would preclude Millview‘s resumption of use. On the contrary, storage of water is not considered to be a
The Board‘s 1998 finding that the Russian River was fully appropriated is certainly suggestive, but it, too, fails to demonstrate the existence of a conflicting claim, at least standing alone. The finding of full appropriation represents a conclusion that “no water remain[ed] available for appropriation” in 1998 (
In sum, if the Board is to declare a forfeiture of the Waldteufel claim, it can do so only upon evidence of a conflicting claim, as discussed above. The forfeiture doctrine has been developed and applied primarily in relatively simple watercourses, in which one or two users claim the entire flow. We recognize that, in a large watercourse like the Russian River, determining whether a particular subsequent appropriation covers a prior, largely dormant claim may offer difficult issues of proof—particularly when consideration is given to public trust uses, which, although they cannot be the subject of a specific appropriation (California Trout, Inc. v. State Water Resources Control Bd. (1979) 90 Cal.App.3d 816, 821-822 [153 Cal.Rptr. 672]), must be taken into account in the allocation of water (
E. The Riparian Nature of the Waldteufel Rights
To acquire the right to appropriate water in the pre-1914 period, an owner of riparian land was required to establish the diversion of water for beneficial use on noncontiguous lands, as well as the quantity of water so used. (Crane v. Stevinson (1936) 5 Cal.2d 387, 398 [54 P.2d 1100].) Because the Waldteufel parcel adjoined the river, Waldteufel was a riparian owner. Notwithstanding his posted notice, he could not perfect the Waldteufel claim as an appropriative water right without actually using the diverted water on noncontiguous land.23 As the Board noted, and as we discussed in connection with perfection of the claim, Millview failed to supply evidence of such use.
Plaintiffs argue they demonstrated a right to appropriate because Waldteufel intended to use the water on the remainder of Lot 103, which he did not own. The evidence on which they rely for divining his intent is uncertain, since the only apparent evidence of Waldteufel‘s intent, the notice, said he planned to use the water “upon the lands owned by me.” In any event, the mere intent to use water on noncontiguous lands, if not successfully implemented, would not perfect a pre-1914 claim of appropriation.
The SCWA argues we could affirm the Board‘s decision on this basis. As the Board noted, however, it did not raise this issue in the CDO notice. In the absence of such notice, the Board chose not to rely on plaintiffs’ failure to provide evidence of appropriative use as a basis for its decision. Accordingly, we do not rely on that failure as a basis for affirming the CDO.
F. Due Process
Plaintiffs argue the trial court‘s decision can be affirmed on the ground they were not provided a fair hearing by the Board because (1) they were not
required to issue permits for the appropriation and beneficial use of all available water. By allowing some water to remain unappropriated, the Board could effectively allocate the water for public trust uses. (Ibid.)
provided
The nature of plaintiffs’ argument on the first point is unclear. To the extent plaintiffs intend “validly established” to refer to the Board‘s conclusion there was no evidence Waldteufel‘s claim was ever perfected as a right of appropriation, the claim was mooted when the Board elected not to rest its order on this conclusion. To the extent plaintiffs intend “validly established” to refer to the Board‘s finding that Waldteufel was not shown to have perfected a right to appropriate more than 243 afa, we conclude the notice was adequate. The “facts and information” section of the draft CDO states that Waldteufel “recorded a water right notice” in 1914 and Board staff had concluded it “likely has a valid basis.” A conclusion the claim had a “valid basis” does not imply the claim had been perfected to the full extent claimed in Waldteufel‘s notice, thereby excluding that issue from consideration. The remainder of the section makes clear the Board‘s concern that historic use under the Waldteufel claim was not sufficient to support the full rights claimed by Millview. Included within such a concern is the possibility actual beneficial use was never sufficient to perfect the claim at the rate claimed by Waldteufel. Plaintiffs’ subsequent presentation of expert testimony regarding Waldteufel‘s likely water use under the claim demonstrates their understanding of their burden.
With respect to the denial of discovery, plaintiffs sought prehearing discovery from the Board with respect to “the Board‘s previous rights determinations on the West Fork of the Russian River” and the information on which the Board relied in concluding a portion of the Waldteufel claim was forfeited. In denying the application, the hearing officer noted plaintiffs could notice depositions (
We find no abuse of discretion and certainly no denial of due process. In arguing to the contrary, plaintiffs do not explain why the methods of investigation and discovery identified by the hearing officer were insufficient. Nor do they identify any particular information they were denied. Accordingly, there is no basis for concluding the denial of discovery was prejudicial.
The
Finally, plaintiffs argue the trial court‘s decision must be affirmed unless appellants demonstrated a “miscarriage of justice,” citing
(1) The Board can set aside the present CDO and enter a new CDO limiting Millview‘s diversion under the Waldteufel claim to 243 afa, between the months of April and October. As noted above, the Board‘s finding that the claim was never perfected as an appropriative right, if at all, to any greater annual volume than 243 afa was supported by the evidence and consistent with water rights law;
(2) The Board can set aside the present CDO and conduct further evidentiary hearings on the issue of forfeiture. While there was no substantial evidence of a conflicting claim presented to the Board, such evidence might be developed; or
(3) The Board can begin again by issuing an amended notice of draft CDO addressing the issue of the perfection of the Waldteufel claim as a right of appropriation and conduct new administrative hearings directed at this issue, alone or in combination with the issue of forfeiture.
Citing Newman v. State Personnel Bd. (1992) 10 Cal.App.4th 41 [12 Cal.Rptr.2d 601], and Ashford v. Culver City Unified School Dist. (2005) 130 Cal.App.4th 344 [29 Cal.Rptr.3d 728], plaintiffs argue the Board should not be given the opportunity to conduct additional proceedings. In Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499 [128 Cal.Rptr.3d 658, 257 P.3d 81], the Supreme Court partially disapproved Newman and Ashford, essentially confining them to their facts, which concerned “disciplinary or punitive sanctions” imposed on a “fundamental or vested right.” (Voices of the Wetlands, at pp. 535, 534.) In essence, the court limited these rulings to writ review of administrative personnel decisions. Even assuming Millview has a “fundamental or vested right” to water under
III. DISPOSITION
The Board is directed to set aside the CDO and reconsider the matter in light of this decision. The parties shall bear their own costs on appeal.
Dondero, J., and Banke, J., concurred.
Petitions for a rehearing were denied October 14, 2014, and the opinion was modified to read as printed above. Respondents’ petition for review by the Supreme Court was denied December 17, 2014, S222062.