Siskiyou County farmers win the day in court against California Department of Fish and Game effort to regulate their water rights

Farmers in the Scott and Shasta Valleys of California’s Siskiyou County got an early gift on Christmas Eve, when the Siskiyou County Superior Court handed down a favorable ruling in their legal battle with the California Department of Fish and Game over whether the Department can issue permits to regulate water rights in California.  The permits in question are usually called 1602 Agreements (technically “Lake and Streambed Alteration Agreements”), which the Department has required for most construction projects that impact aquatic resources since the early 1960s.  But until recently the Department had never officially required a 1602 Agreement for merely exercising a water right.

That changed following the listing of Coho Salmon in the Scott and Shasta Rivers under the California Endangered Species Act.  Following this listing, the Department was one of several state agencies to take aim at Siskiyou County agricultural water rights in an effort to tip the scales in favor of fisheries.  Among other regulatory tactics, the Department innovated the legal argument that one may not exercise water rights without a 1602 Agreement.  The Department staff began sending ominous letters to this effect to farmers in Siskiyou County, eventually even implying criminal prosecution.  Many farmers responded informally that they did not consider the Department to have the legal authority to regulate water rights through 1602 Agreements.

Seeking to clarify the law in this area, PLF filed an amicus brief on behalf of the California Cattlemen’s Association, Siskiyou County, and the Siskiyou County Flood Control and Water Conservation District, in a suit on behalf of the California Farm Bureau Federation against the Department in Siskiyou County Superior Court.  That case was dismissed after an adverse procedural ruling, but then the Siskiyou County Farm Bureau filed its own case on the same issue.  On Monday of this week, the court ruled in favor of the Farm Bureau that “Fish and Game Code § 1602 does not require notification of the act of extracting water pursuant to a valid water right where there is no alteration to the bed, bank, or stream.”  For good measure, the court enjoined the Department from bringing enforcement actions against farmers who decline to seek a 1602 Agreement in such circumstances.

This is an important and hard-won victory on several fronts, including clarity in the law, freedom of property rights from overbearing regulation, and the statutory priority of agricultural water rights over various environmental uses.  The decision is sure to make government agencies and environmental activists howl and property rights defenders smile.  Given the significance of this case, PLF anticipates that the case will be appealed, and will watch closely for opportunities as amicus curiae to assist the Court of Appeal and perhaps the State Supreme Court, in defense of the trial court’s ruling that the Department may not regulate water rights in California.

I would sound at least one note of caution, however, about the decision.  In many an important court decision, there is the crux of the matter, and there are ancillary issues that are discussed.  In this case, the crux is that the legislature has not granted the Department any authority to regulate water rights, which statutory responsibility is exclusively vested in the State Water Resources Control Board.  But as an ancillary matter, the decision makes some unfortunately confusing comments about the Public Trust Doctrine.  These comments badly overstate the scope of the Public Trust Doctrine, and conflate it with the broader water rights concept of beneficial use, and with the even broader legal concept of the public interest.  As the case moves into the appellate stage, PLF will be considering how to limit the application of the court’s confusing statements on the Public Trust Doctrine while defending the trial court’s essential ruling.

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