The appeal involves the State Water Resources Control Board's (the Board) challenge to a trial court judgment that issued writs of mandate against it regarding water use curtailments in response to a severe drought starting in 2015. The central issue is whether the Board has the authority, under Water Code section 1052(a), to curtail water diversions by holders of valid pre-1914 appropriative water rights due to insufficient water supply caused by drought conditions. The trial court ruled that section 1052(a) did not grant such authority and favored the respondents, who hold pre-1914 water rights.
The statute in question states that unauthorized diversion or use of water is a trespass, and both parties agree that it allows the Board to curtail water uses falling within its definitions. However, they dispute its application to pre-1914 rights. The Board contends that it can curtail diversions from certain pre-1914 right holders based on its assessment of insufficient water supply, while respondents argue that such rights are excluded from curtailment even in drought situations.
The appellate court agrees with the Board's position that section 1052(a) allows for enforcement against diversions outside the scope of pre-1914 rights. However, it disagrees with the Board's assertion that it can curtail diversions among pre-1914 holders based on their priority rights during water shortages. Since the Board's curtailment actions were solely based on this latter rationale, the court affirms the trial court’s judgment.
The background details include the declaration of a state of emergency due to drought conditions in January 2014, notifications from the Board to water right holders about potential curtailments, and an informational order issued in February 2015 regarding unlawful diversions in the affected watersheds.
The Board mandated that holders of riparian and pre-1914 water rights in the Sacramento and San Joaquin River Watershed and Delta submit information regarding their water diversions and the basis for their rights. Monthly reporting was required to assess unauthorized diversions, with non-compliance resulting in potential enforcement actions. Following a continued State of Emergency due to severe drought, the Governor instructed the Board to enhance monitoring and enforcement of water rights. Notices were sent to water right holders indicating that curtailment notices were likely if dry conditions persisted, and subsequent communications ordered post-1914 rights holders in the San Joaquin River watershed to cease diversions due to insufficient water supply. Similar notices were later issued for the Sacramento River watershed, advising holders of pre-1914 rights with priority dates from 1903 onwards to stop diverting water until conditions improved. The notices warned of potential penalties for unlawful diversions. A clarification was provided stating that while riparian rights would not be curtailed, pre-1914 appropriative rights faced limitations. Respondents challenged the curtailment notices in court, alleging violations of due process and jurisdictional overreach by the Board regarding pre-1914 rights, and sought a temporary restraining order, which was heard in July 2015.
At the temporary restraining order (TRO) hearing, the Board contended that respondents were not entitled to due process before issuing curtailment notices, but would receive due process prior to enforcement actions under specific statutes. Respondents argued that the notices were coercive and sought rescission of language mandating them to cease diversions. The Sacramento County Superior Court sided with respondents, deeming the coercive language in the June 2015 notices improper without a pre-deprivation hearing. The court ordered the deletion of this language, asserting that the notices violated respondents’ due process rights. It required the Board to justify why a preliminary injunction should not compel the issuance of a revised, informational notice.
On July 15, 2015, the Board issued a partial rescission and clarification regarding the May and June notices, stating it was rescinding the curtailment portions and clarifying that diversion remains subject to water availability. The Board indicated that those diverting water without authorization could face administrative penalties or legal action. At a July 30, 2015 hearing, the court found the July 2015 notice compliant with its prior order, dismissing claims of ongoing constitutional issues with the Board’s notices. Subsequently, the curtailment notices were rescinded, and the Board informed water right holders that water was available for diversion.
Before these rescissions, the Board initiated enforcement actions against BBID and WSID for unauthorized diversions, which were later dismissed in 2016 after the Board failed to meet its burden of proof. In September and November 2015, the Board notified different groups of water right holders, including pre-1914 and pre-1927 holders, that water was available for diversion. The Board asserted its jurisdiction over pre-1914 water right holders, clarifying that enforcement actions aimed to prevent unauthorized diversions, not to regulate valid rights. The Board highlighted that a diversion outside priority is outside the bounds of the right.
The Board has the authority under Water Code section 1052 to enforce actions against unauthorized water diversions claimed under a pre-1914 water right. Despite the rescission of curtailment notices, respondents continued their legal challenge against the Board’s actions from May and June 2015. The case was tried in January 2018, with the trial court ruling in favor of respondents in April 2018. The court noted that the Board did not dispute the validity of the water rights claimed by respondents and that it did not attempt to curtail them based on the invalidity of those rights. The trial court clarified that the Board’s jurisdictional argument was confined to section 1052(a) and did not involve broader doctrines like reasonable use or public trust. It determined that the Board could not curtail pre-1914 appropriators based solely on a general lack of available water, but it retained some jurisdiction under other statutory provisions.
The trial court found that the Board's issuance of curtailment notices violated respondents’ due process rights by failing to afford them a pre-deprivation hearing. Although the due process issue was moot, it was addressed due to its significance. After the decision, respondents dropped remaining claims related to subsequent trial phases. In June 2019, the court granted respondents writs of mandate, prompting timely appeals from the Board and the Department of Water Resources. The Board contests the trial court's jurisdictional ruling regarding section 1052(a) but does not challenge the due process finding.
The legal context of the dispute centers on California's complex water rights regulation, emphasizing that water rights are limited to reasonable use and do not extend to wasteful or unreasonable practices.
This section establishes that it is self-executing and allows the Legislature to create laws supporting its policies. Water ownership in California is primarily held by the state's residents, who can obtain 'water rights' to divert water for various uses. California employs a dual system of water rights, encompassing both the riparian and appropriation doctrines. The riparian doctrine grants landowners adjacent to a watercourse the right to reasonable use of water, while the appropriation doctrine allows for diversion of water for non-riparian purposes. Both rights are usufructuary, meaning they do not confer ownership of the water itself. Courts allocate water based on established legal rights, prioritizing riparian and overlying uses over appropriative rights during shortages. Senior appropriators have priority over junior ones, ensuring their needs are met first. Post-1914 appropriators must obtain permits from the Board, unlike pre-1914 appropriators and riparian users, who do not require such authorization. Pre-1914 rights originated during the gold rush, governed by an informal priority rule, and the first appropriation statute was enacted in 1872. The 1913 Water Commission Act established a formal procedure for appropriation, leading to the classification of rights based on the date of establishment. The amicus brief submitted by various tribes and organizations highlights the historical injustices associated with pre-1914 rights, urging consideration of these consequences in judicial review.
The California Supreme Court emphasizes that its resolution of the legal issues is based on statutory interpretation rather than personal views on the laws in question. The policy decisions regarding water rights, particularly in the context of diminishing water supplies, fall within the legislature's purview, not the court's. Respondents argue that the appeal regarding the Board's curtailment notices is not moot, despite the trial court's finding of due process violations that rendered the notices invalid. Initially, the Board contended that the respondents' challenges were moot, but later admitted that addressing the appeal could benefit other parties. Respondents claimed an ongoing controversy over the Board’s jurisdiction concerning pre-1914 water rights, arguing it is a matter of public importance that should be reviewed despite its mootness. The trial court agreed, referencing case law that allows for addressing such issues under the public interest exception to mootness. Consequently, the court will proceed with the appeal, recognizing the significance of determining the Board's authority under section 1052(a) in light of future implications for its ability to issue curtailment orders. The court will also apply the standards of review outlined in Code of Civil Procedure section 1094.5, focusing on jurisdiction, fair trial, and potential abuse of discretion, with the primary issue being the construction of section 1052(a), which will be reviewed de novo.
The Board asserts jurisdiction under section 1052(a) regarding the diversion and use of water, challenging the trial court's interpretation that limited this section to water "subject to this division," thereby excluding pre-1914 appropriators. The Board argues that section 1052(a) pertains to all diversions and uses of water, including those by pre-1914 appropriators, and insists that unauthorized diversions are subject to the Board's authority. Respondents counter that the trial court’s interpretation was correct, maintaining that section 1052(a) does not grant the Board jurisdiction over diversions within the valid rights of pre-1914 appropriators, even if these diversions could affect senior rights holders.
The crux of the dispute centers on the language of section 1052(a), which states that unauthorized diversions of water subject to division 2 constitute a trespass. The interpretation of what constitutes "water subject to this division" is central to the Board's appeal. The California Supreme Court noted that the lack of a definition for this water in division 2 complicates the resolution of the issue. The interpretation process involves determining legislative intent, examining statutory language contextually, and adhering to the plain meaning unless it leads to absurd results. Additionally, courts may utilize legislative history and public policy to clarify ambiguous language, ensuring that every part of the statute is given significance in alignment with its intended purpose.
Laws concerning the conservation of natural resources are deemed critically important and should be interpreted broadly to achieve their intended goals. The statutory framework includes Section 4 of the Water Code, which states that existing actions or rights prior to the code's enactment remain unaffected, although subsequent procedures must align with the code's provisions. Section 103 clarifies that the code does not alter existing water rights laws.
Section 1050 grants the Board authority to enforce regulations in line with California's constitutional water policy, while Section 1051 allows the Board to investigate water sources for lawful use. Section 1052 enables the Attorney General to pursue legal action to prevent unlawful water use and specifies daily penalties for violations, alongside provisions for administrative civil liability. The Board can also implement emergency regulations during drought conditions as per Section 1058.5.
The California Supreme Court has noted that Part 2 of the Water Code outlines a comprehensive system for water appropriation, establishing that compliance with these provisions is the exclusive method for acquiring water rights. It also includes specific sections allowing the Board to issue cease and desist orders for violations of water use statutes.
The rights not governed by these statutory procedures are primarily limited to riparian rights and those appropriated before December 19, 1914. However, subsequent rulings indicate that the Board retains jurisdiction over certain water diversions by pre-1914 rights holders. In the Young case, the Court of Appeal examined the Board's authority to issue cease-and-desist orders against alleged illegal diversions by claiming rights holders, leading to an order for the diverter to maintain accurate diversion records and provide further evidence for any excess water use.
Customers of a diverter sought judicial review and reconsideration of a cease-and-desist order issued by the Board, arguing due process violations and lack of jurisdiction. The Board acknowledged due process concerns but asserted its jurisdiction to issue the order. The trial court subsequently mandated the Board to annul the cease-and-desist order. On appeal, the Board contended that the Water Code grants it jurisdiction to determine the legitimacy of claimed riparian or pre-1914 appropriative rights. Customers countered that the Water Code does not empower the Board to adjudicate these rights and that prior to Water Code section 1831's enactment, the Board lacked such authority, with the section exempting certain waters from Board regulation.
The Third District Court of Appeal dismissed the jurisdictional objection, referencing Temescal Water Co. v. Department of Public Works, which had previously rejected similar arguments. The court noted that the legislature conferred upon the Water Board the authority to investigate water use and address unauthorized diversions. It highlighted that the preamble to section 1831 clarifies the Board's jurisdiction to issue cease-and-desist orders when violations are identified.
The court emphasized that the Water Code allows the Board to regulate unappropriated water, including both unpermitted pre-1914 rights and excess diversions of riparian rights. Consequently, the Third District concluded that the Board is authorized to make preliminary determinations regarding the validity of claimed rights without needing to file a lawsuit. This interpretation aligns with the decision in Young, which affirmed the Board's authority over pre-1914 rights, and was supported by the First District's agreement in Millview, where the Board found significant forfeiture of Millview’s pre-1914 rights due to lack of use. However, the trial court later reversed the Board's cease-and-desist order, citing a lack of jurisdiction over pre-1914 rights.
The First District overturned the trial court's jurisdictional conclusion while affirming that the Board's cease-and-desist order lacked sufficient evidence. Citing the Third District's decision in Young as influential, the First District affirmed the Board's jurisdiction to define the scope of pre-1914 appropriative water rights and to issue cease-and-desist orders under Water Code section 1831 to prevent excessive diversions. It emphasized that allowing claimants to bypass Board regulation by merely asserting pre-1914 rights would be improper. The court clarified that unauthorized diversions, as determined by the Board, fall outside the scope of these pre-1914 rights. It acknowledged that section 1052 allows for the prevention of unauthorized diversions, including those under claimed pre-1914 rights. While both Millview and Young addressed the Board's authority over specific appropriative rights, they did not explore whether the Board could enforce section 1052(a) based on violations of priority rules due to inadequate water availability. In this appeal, the Board claims it possesses such authority, while respondents dispute this. The ambiguity in section 1052(a) necessitates a review of its legislative history, which traces back to the 1913 Water Commission Act. This Act empowered the water commission to investigate water rights and uphold existing lawful appropriations of water while ensuring proper utilization.
The state water commission is granted the authority to supervise water distribution in accordance with established priorities, provided it does not conflict with judicial authority. The 1913 Act established that unauthorized diversion or use of water is considered trespass, with the commission authorized to take legal action against such trespasses. The Water Code, enacted in 1943, aimed to preserve existing water rights without altering them, and many of its statutes have remained unchanged since then. Section 1052(a), originating from the 1943 Act, mirrors the language of the 1913 Act regarding the trespass of unauthorized water use. The legislative history indicates a clear distinction between the Board's limited authority over pre-1914 water rights and broader authority over post-1914 rights. Section 1052(a) specifically pertains to the diversion or use of water, not ownership of the water itself, reinforcing that water rights confer only the right to use water, not to own it. The court agrees that section 1052(a) applies to diversions and uses of water, but it rejects the Board's claim that it allows policing of valid pre-1914 appropriative rights based on potential priority violations.
The Board argues that pre-1914 appropriative rights are “subject to” division 2 of the Water Code, referencing specific sections that address these rights. However, a comprehensive interpretation of section 1052(a) reveals that pre-1914 rights cannot be “authorized in” division 2, as they were established before the 1913 Act requiring such authorization. Thus, diversions under these rights are categorized as “other than as authorized in” division 2.
The Board claims authority to enforce rights due to insufficient water supply for some pre-1914 claims, but this assertion is challenged as it does not align with the statutory provisions. The Board maintains it can regulate priorities among pre-1914 rights holders based on water scarcity; however, no provisions in division 2 grant this authority.
Priority rights for post-1914 appropriators are determined by the date of application, while no such framework exists for pre-1914 rights holders, as the Water Code explicitly states that rights accrued before its enactment are unaffected by it. The Legislature intended no changes to existing water rights laws. Consequently, the Board's interpretation of section 1052(a) to extend its authority to pre-1914 rights holders, particularly during drought conditions, is inconsistent with the statutory language and intent.
The Board requests the removal of a specific phrase from the provision and seeks to interpret it as stating that unauthorized diversion or use of water constitutes trespass. However, fundamental statutory interpretation rules mandate that every part of an act must hold significance in relation to legislative intent. The limits of section 1052(a) are defined by its restriction to the unauthorized diversion or use of water as outlined in the division. Historical context shows that the Legislature aimed to protect existing appropriative water rights upon enacting the 1913 Act, which explicitly upheld all lawful appropriations of water. The direct predecessor to section 1052(a) similarly affirmed that trespass applies only to unauthorized diversions under the Act, excluding existing lawful appropriations.
While the Board cites other sections that apply to pre-1914 water rights holders, this does not support its argument regarding section 1052(a), which has a narrower scope. The Board's authority to issue 2015 notices is based on a theory that pre-1914 rights might infringe on senior rights; however, the Board’s enforcement capabilities are limited and primarily leave dispute resolution to the courts. The application of section 1052(a) does not extend to valid pre-1914 appropriative rights based on concerns of insufficient water supply. It applies to post-1914 rights or instances where a pre-1914 right holder exceeds their rights or possesses an invalid right. The Board’s arguments regarding the trial court's consideration of stored water in the Delta at the time of the 2015 curtailment notices are rejected.
Pre-1914 appropriative water right holders lack the right to use or divert stored water. Section 1052(a) empowers the Board to classify such diversion as trespass. The Board contends that stored and released waters were relevant during the issuance of curtailment notices, which were based on insufficient water due to drought rather than the presence of stored water. The notices stated that even if water was available at a diversion point, it was needed for senior rights or must remain instream for beneficial use. The trial court found that the Board’s reliance on stored water was unfounded, affirming that section 1052(a) could not justify its actions.
The Board argues that upholding the trial court’s decision would render section 1052 ineffective during droughts, contrary to legislative intent. However, section 1052(a) does not mention drought conditions and does not preclude the Board from exercising authority during water shortages. The Board has the longstanding ability to implement emergency regulations for curtailing diversions when water is unavailable according to priority rights, which can be renewed annually.
The Board has previously enacted regulations that allow curtailment during droughts without the limitations found in section 1052(a). Specifically, regulation 876.1 enables the Board to issue curtailment orders based on insufficient flows for all diversions in the Delta, adhering to water right priority. This authority was upheld in *Stanford Vina Ranch Irrigation Co. v. State of California*, where post-1914 rights were challenged against the Board’s curtailment orders aimed at protecting threatened fish species.
The Third District Court of Appeal affirmed the Board's emergency regulations and curtailment orders, determining they were within the authority granted by the Legislature. California Code of Regulations, section 877.1 outlines definitions related to the Delta and curtailment orders. The Board did not implement emergency regulations during a 2015 drought, which could have affected the authority over curtailment orders. The Board's interpretation of section 1052(a) was found not to conflict with prior cases, including Young and the California Supreme Court's decision in Meridian, Ltd. v. San Francisco, as the latter did not address the Board's authority regarding water rights. The Board's reliance on Young was deemed inappropriate because that case involved a factual determination about a specific water right after an evidentiary hearing, while the current case involved a broad curtailment of all pre-1914 appropriative rights due to insufficient water in the Delta, rather than a specific factual determination regarding individual rights. The trial court's role was limited to assessing whether the curtailment notices were authorized under section 1052(a). The Board retains statutory authority to investigate and determine the validity of water rights, including pre-1914 rights, and this authority has not been rescinded.
The Third District's ruling in Young aligns with the trial court's judgment, distinguishing it from the First District's decision in Millview. Both Young and Millview did not address whether the Board can limit a pre-1914 appropriative water right claim without assessing its validity or scope. While the Board has the statutory authority to determine the validity of such claims, it cannot curtail an entire class of these rights based solely on a belief of insufficient water availability. Consequently, the trial court's finding that the Board lacked authority under section 1052(a) to issue the 2015 curtailment notices is affirmed. The ruling specifically pertains to the Board's authority under section 1052(a) and does not restrict the Board from exercising its authority under the public trust doctrine or emergency regulations. The trial court's judgment is upheld.
