Judge Komar’s Tentative Decision Phase V Santa Maria Water Litigation

Judge Komar has issued his tentative decision in Phase Five of the Santa Maria Water Litigation. You can read the entire opinion here: Judge Komar Tentative Decision Phase V Below I have summarized and commented on the opinion. I welcome other analysis and commentary if anyone is so inclined.
In his decision Judge Komar identified five issues for his decision:

1. Whether the LOG parties are entitled to any relief on their quiet title actions;

2. What rights the Public Water Producers may have as a result of the Court’s finding of prescription;

3. Whether the rights of the Land Owner Group are reduced as a result of any prescriptive rights in others;

4. Whether the court should make orders in equity by way of a physical solution;

5. Whether the court should enter a single judgment or a separate judgment on the stipulation on the settling parties.

Judge Komar noted that the Land Owner Group parties presented evidence to establish their current title to real property; however, they presented no evidence about the reasonable and beneficial use of the water underlying their land.

In phase IV of the trial Judge Komar concluded:

[T]hat the public water producers had pumped water in specified amounts during periods of over draft and that such pumping was open, notorious and hostile to the rights of overlying landowners within the valley. The court quantified the combined prescriptive rights so found as 7000 acre feet a year.

Judge Komar noted that:

Without evidence to measure the overlying owner’s rights, the court cannot determine the effect the prescriptive rights have on overlying owner’s rights. Thus, while the evidence presented is sufficient to establish legal title, there was no evidence that would permit the court to quiet title to the overlying water rights in light of the claim of prescription.

Judge Komar concluded that the Land Owners Group were not entitled to a quiet title judgment because he couldn’t determine the extent of the rights the landowner’s claimed.

The City of Santa Maria established prescriptive rights to 5100 acre feet per year. Golden State Water Company likewise established prescriptive water rights to 1900 acre feet per year. Judge Komar stated:

Those public water producers are entitled to those specific quantities of water in the aquifer the same as any overlying landowner so long as there is a surplus of water in the aquifer, and they also have a priority over other appropriators in those circumstances just as an overlying owner has a priority when there is no surplus.

The public water producers wanted Judge Komar to allocate their prescriptive rights only against the Land Owner Group parties; however, the court declined to make such an allocation, noting that:

All rights to water within a single basin aquifer being correlative, all rights within the basin may be affected by the acquisition of prescriptive rights by a party who appropriates. The evidence establishes that overall pumping by all parties (overlying owners as well as appropriators) continued without reduction during the periods of severe drought, resulting in serious depletion of water in the aquifer. Prescriptive rights obtained during that period therefore must be a charge against the aquifer as a whole, and all overlying owners to one extent or the other; and not just against a single landowner.

The Land Owner Group parties then asked the court to find that they utilized “self-help”, thereby defeating the water producer’s prescriptive rights. Judge Komar helped explain the “self-help” concept and how it related to prescriptive rights of the water producers, and the mitigations sought by the Land Owner Group parties:

The doctrine of “self-help” is a concept that has been used by the courts to describe the relationship between overlying land owners and appropriators in circumstances where an appropriator has obtained prescriptive rights at the same time that an overlying owner has continued to pump but has not sought legal action to enjoin the appropriator. Whether it is appropriately called self help or not, there is a legal consequence to the continuous pumping from the aquifer during times of overdraft by both the appropriator and the overlying land owner.

The party asserting prescription must prove the elements of prescription. The land owner mitigates the effect of prescription by so called “self help.” Perhaps traditional common law principles best describe it. See analogously Smith v. New Hampshire (1906) 4 Cal. App. 8, here a party obtained a prescriptive easement in a ditch to carry water across the land of another but the fee owner also used the easement during the period of prescription to transport water. As a consequence, the prescriptive easement was non-exclusive. The analogy is far from perfect but is somewhat useful as authority for the doctrine of self help mitigates but does not prevent the adverse party from obtaining prescriptive rights.

In the ground water context, even though the overlying owner continues to pump concurrently with the appropriator, because there is no surplus in times of overdraft, the appropriator is taking water to which the overlying owner has a prior right. It would seem that using the Smith v. New Hampshire reasoning, the land owner cannot prevent prescription but may mitigate the loss of rights by continuing to pump.

Judge Komar then pointed out that:

without a quantification of the water rights of the LOG and Wineman Group parties, as well as the other overlying owners’ rights, the court at this time cannot determine the effect that prescription has on any landowner party.

Judge Komar then turned his discussion to possible future water shortages. In such an event the court would have to take into account and:

quantify all usufructuary rights and equitably allocate pumping rights of each right older over whom the court has jurisdiction. Under those circumstances a court would be required to recognize and take into consideration land owners’ rights, prescriptive rights, imported water rights, and the right to return flows.

All the parties to this litigation which previously settled their claims by way of a voluntary stipulation agreed that the court would retain future equitable jurisdiction over the parties. Judge Komar noted that there was reasonable certainty that there would be future water shortages and that the court would be required to act to preserve the rights of the various parties.

Such future shortages might require the court to evaluate the pumping rights of each party who seeks to pump. The majority of individual property owners and water produces stipulated about prescriptive rights and also about a physical solution to preserve the hydrologic health of the aquifer. One of the things for which the stipulation provides is for monitoring of water use.

This data would be available to the court for its use, if called upon to act in the event of a severe water shortage. Judge Komar then observed that the Land Owner Group parties elected not to be part of the stipulation to which the vast majority of the parties agreed before this phase of the trial. Judge Komar then ruled that:

The LOG and Wineman Group parties must monitor their water production, maintain records thereof, and make the data available to the court and its designee in view of the substantial likelihood of future water shortage so that the court can ascertain the reasonable and beneficial use of water rights of all parties and the effect of prescription on all overlying land owner water producers.

Judge Komar then reviewed the part of the stipulation between the settling parties as it related to the Twitchell Dam water and the impact of the stipulation on the non-stipulating parties:

The stipulating parties have also agreed as between themselves to equitably divide the water produced by Twitchell that results in recharge to the aquifer. The recharge to the valley from Twitchell to which the stipulating parties have agreed is 32,000 acre feet a year. The stipulating parties have agreed to allocate 80 percent of that recharge to the public water producers and 20 percent to the other parties to the stipulation. The parties can so agree and be bound to the agreement in the future. Those who are not parties to the agreement, such as the LOG and Wineman Group parties, however, are not bound by the agreement. Accordingly, while, in the event of a drought and consequent water shortages, the stipulating parties will have a basis for the court being asked to enforce the settlement among themselves if need be, that in and of itself cannot affect the rights to ground water of non-stipulating parties. The correlative rights of non-stipulating parties to ground water will remain unaffected by the stipulation subject only to the court’s findings of the legal consequence of the prescriptive rights and the court’s equitable jurisdiction.

The Land Owner Group parties objected to the ability of the Conversation District to enter into the stipulation, essentially arguing that the District lacks authority to shift water from all basin users to a select few. And, if they did have that authority, they could not do so without an EIR. The court dismissed the EIR argument stating that the parties did not adequately address that issue and trial, and they would need to brief the issue further in order for the court to make a ruling on that legal argument. It also noted that on its face it didn’t appear an EIR would be required.

Judge Komar then noted that the Conservation District did have power to enter into the types of stipulations which the vast majority of the parties of this case entered into. He also noted the many positive benefits of the stipulation, benefits that inured also to the Land Owners Group parties:

The court notes that the agreement does not deprive any party of water who is not party to the agreement, does not modify the operation of the reservoir and dam beyond what was originally provided for, and merely would restore its capacity to the original planned capacity. There does not appear to be an environmental impact that would on its face require a further environmental impact report and statement. Nevertheless, the parties may brief the issue if they choose.

The conservation district does have the right to provide by contract for the maintenance and operation of the dam and the reservoir to carry out its contractual duties arising out of the contract between the U.S. Department of the Interior (Bureau of Reclamation) and the Santa Barbara County Water agency which have been delegated to the Santa Maria Valley Water Conservation District. The contract duties include the maintenance and operation of the dam and reservoir for flood control purposes, to enhance annual recharge of the aquifer, and to benefit all users appurtenant to the ground water basin. The water conservation district has the power to enter into contracts to carry out those functions. The stipulation (contract) is designed to provide for restoration and maintenance of the storage capacity of the reservoir and thereby ensure an adequate water supply for the entire valley. That is a legitimate purpose and it benefits all parties here, even the objecting parties. The overwhelming majority of water producers in the valley have entered into the stipulation. The only parties who have not so agreed and are objecting are the LOG and Wineman Group parties.

Judge Komar concluded that a physical solution was required, and agreed to impose the one outlined in the stipulation, at least to the stipulating parties:

The court concludes that a physical solution is necessary and appropriate to provide for future exigencies and that the water management plan provided for in the stipulation is necessary and appropriate and will provide an efficacious solution. The public water producers request that the court approve the water management plan agreed to in the stipulation. The court intends to do that in its final judgment as to the stipulating parties but to exclude the allocation of the Twitchell production from the imposition of the plan on the objecting parties. It would be premature for the court to order an allocation of water produced by Twitchell as to parties who are not party to the stipulated agreement.

Judge Komar then reviewed the potential for future lean water years, and that the court would need to retain jurisdiction in order to later into the picture to enforce the stipulation or otherwise help maintain the overall health of the Santa Maria Water Basin:

The Santa Maria Valley water basin continues to be in jeopardy of overdraft in times of drought. Pumping has increased with increases in population. The Twitchell dam has ongoing and increasingly serious accumulation of silt in the reservoir. The build up of silt in the reservoir reduces the capacity of the reservoir to store water necessary to recharge the aquifer.

The dam has to date lost substantial capacity to store water as a consequence of silt accumulation. Increasing the capacity of the dam is a long range endeavor. If a lengthy period of drought occurs before the dam capacity has been restored, pumping at current levels from the aquifer will be reasonably certain to result in an overdraft. The agreement between the stipulating parties offers some hope for the future of the basin but it is not a guaranty even under the best of circumstances. Even after the dam was completed, there was an overdraft in the basin for the years 1959 to 1967, in addition to extensive pre-Twitchell periods of overdraft in the historic past. The valley has experienced extreme variations in precipitation and run off from the surrounding watershed, and drought years have historically been lengthy and especially severe. The evidence before the court is that similar patterns may be expected to recur in the future.

Thus, this is a matter in equity and the court will therefore retain jurisdiction to carry out and enforce its judgment as necessary and to implement the stipulation and protect the interests of all parties, the stipulating parties, the LOG and Wineman Group parties, the Public Water Producers and the public generally.

Judge Komar then set forth his final conclusions and judgments as follows:

The court intends to enter a single judgment, incorporating the stipulated terms and imposing all but the allocation of Twitchell water into those terms as to all parties to this litigation. The allocation of Twitchell water and certain costs and duties shall be only as to those stipulating parties.

The prescriptive rights of the public water producers shall be part of the judgment.

All parties shall participate in and be bound by the Management Area Monitoring Program.

The Court will enter judgment for the cross defendant public water producing parties on the Cross complaints by LOG and the Wineman Group parties for quiet title.

The court will find title in the LOG and Wineman parties as part of the Declaratory Relief Action filed by the Public Water Producers but deny quiet title to water rights for the reasons stated above.

The Northern Cities have a prior right to 7300 acre feet per year and the non stipulating parties have no right thereto, or any return flows.

Judgments may also be entered against all defaulting parties.

Based on what I have read from the news accounts and other sources, it doesn’t sound like this was a win for the Land Owner Group parties. I also got the sense Judge Komar went out of his way several times during this opinion to note that the vast majority of the parties settled. He also pointed out how important and helpful the settlement agreement was. I don’t think the landowner defendants got much of what they held out for. I’d be curious to hear from any of them.

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