An Abject Failure of Justice
The California Court of Appeal Rewrites California Groundwater Law
In its latest groundwater decision, the California Court of Appeal set ground-breaking precedent by finding landowners who have yet to exercise their right to pump groundwater have a lower priority than those who have pumped groundwater, including other landowners and appropriating public water suppliers, in an over drafted basin pursuant to a comprehensive adjudication. By upholding the physical solution, the Court also endorsed permanent allocations of the entire Antelope Valley basin’s native safe yield, which necessarily extinguishes the right of dormant landowners to share in that water.
In effect, California’s Fifth Appellate District rewarded the gross over-pumping by overlying entities and appropriating public water suppliers that resulted in a severely depleted water source at the cost of innocent landowners who did not contribute to the diminishing water supply. Under this decision, the 18,000 Willis Class of landowners who have never pumped water (whose only means to water is to drill a well) have lost their correlative right to share in the native groundwater that exists below their lands.
Claiming authority under California Supreme Court’s Barstow and Long Valley decisions, the Court of Appeal held “a court should employ equitable apportionment principles” when allocating water “in an over drafted basin among correlative rights holders.” The Court also granted trial courts authority to “subordinate (or otherwise condition)” dormant landowners’ future use below “existing uses by other holders of equivalent priority” as long as the dormant landowners are “given notice and opportunity to participate in a comprehensive water rights adjudication” and the physical solution does not “purport to wholly extinguish” their correlative overlying rights. Notably, the Court does not require a determination of unreasonable use before subordinating or extinguishing dormant groundwater rights in stark opposition to Barstow’s mandate that “a court may neither change priorities [i.e., subordinate] nor eliminate [i.e., extinguish] vested rights in applying the [physical] solution without first considering them in relation to the reasonable use doctrine.” (23 Cal.4th 1224, 1250.).
Yet, in its 85-page opinion, Court of Appeal reasoned that “a Physical Solution that balanced the needs of thousands of existing users, all of whom competed for the scarce water” and to “protect the long-term health of the aquifer” was required.
Unique to the Antelope Valley adjudication, the Willis Class entered into a settlement (later entered as a judgment by the trial court) with public water suppliers whereby the public water suppliers waived any claims of prescription against the Class. Despite that judgment, the Court of Appeal upheld the trial court’s finding of the prescription by the public water suppliers against the Willis Class, awarding the public water suppliers superior priority to groundwater than those of the Willis Class.
The Court of Appeal’s decision will certainly have an immense impact on shaping the future of California’s water law, especially regarding landowners who have yet to exercise their vested groundwater rights. Specifically, the Court’s holding establishes a “first in time, first in right” policy which creates a race to pump. This directly contravenes prior case law which states no senior overlying user may gain priority over other overlying owners by being the first to pump groundwater. (See, Tehachapi-Cummings County Water District v. Armstrong (1975) 49 Cal.App.3d 992, 1001.)
Counsel for the Willis Class plans to appeal this decision to the California Supreme Court.