Fourth Appellate Court of California

Fourth Appellate Court of California.

The Fourth Appellate Court of California heard the Abatti parties vs. Imperial Irrigation lawsuit, Friday, June 12. The appeal was generated after Imperial County Superior Court Judge Brooks Anderholt ruled in Abatti’s favor of repealing the Equitable Distribution Plan in August 2017, which could ration agricultural water users by historical and straight-line measurements to deal with the longest drought in modern California history.

After IID appealed the case, Friends of the Court briefs for the district were filed by the local Imperial Valley Coalition for Fair Sharing of Water, started by Holtville resident Wally Leimgruber, the California State Water Board, and San Joaquin Tributaries Authorities.

Filing briefs to maintain Anderholt’s decision were the Imperial County Farm Bureau, Imperial Valley Vegetable Growers Association, and Imperial Valley Water, according to the Appellate Court’s website.

The court was comprised of Patricia Benke, acting presiding justice, Cynthia Aaron, and Joan Irion.

Benke allowed thirty minutes for each sides’ arguments with the judges breaking in frequently to ask questions. The case was done online, both attorneys and the three judges recording from their perspective offices. Most of the hearing went smoothly, with a few instances of losing connection or two justices speaking simultaneously.

Justice Benke mentioned several times through the court hearing this was a most important case for the Valley, the State, and water districts in general.

Attorney Jennifer Meeker, attorney for the district, argued that farmers do not exist apart from other types of water users, and the District Law does not tell IID how to balance competing needs to determine what is equitable among those needs.

In times of shortage, there is no rule or criteria suggesting that IID should provide water to agribusiness enterprises before all others. There is no statute, regulation, or principle of fairness that suggests the water is to be provided to farmers and denied to municipal areas where residences, businesses, recreation, and a whole host of non-agricultural uses converge.

The District Law gives the IID Board broad discretion to determine what is equitable and to equitably apportion water among all beneficial uses, and Meeker argued that farmers do not have priority.

Justice Aaron asked if farmers came last in apportionment in the EDP.

Meeker responded the EDP is made up of all types of members, municipal, residents, industrial, and farmers.

“At what point is this a ‘taking,’” Benke asked. “For the EDP to be implemented there doesn’t have to be a (water) shortage, it is not based on historical use — that is a lot of power for the board.”

“The farmers have a right to continued distribution of water,” Meeker responded.

Michael Abatti’s attorney, Cheryl Orr, told the court, “Abatti never claimed he had ownership to sell (the water), and he agrees the IID has ownership. The claim is Abatti has water right appurtenant to his land and can water when he wants when there is no shortage. EDP cut water use by 50 percent of their crops.”

Justice Irion asked, “So once farmers have watered (their crops) and finished, then all else can have what is left over?”

The justices now will review the arguments and are expected to rule in the next few months.

(2) comments

Concerned Citizen

Isn't it correct to say that the primary reason there are water rights is because pioneer farmers put in the effort to make hostile land into productive farmland by creating an organization to receive and distribute "their" water? I assume the farmers also paid for that distribution system as well, over many years. It's like buying a house/business, paying the mortgage, paying for utility hookups, paying assessments for the continued full use of your property and then being told you only get to use 50% of it because other people want what you worked and paid for with no compensation to you. How is that fair? Sounds like a taking to me.

Verde

THE IMPERIAL VALLEY COALITION FOR THE FAIR SHARING OF WATER SEEKS A FAIR SHARING OF WATER

The Imperial Irrigation District is the source of water for all users and beneficial purposes in the Imperial Valley, including irrigation, domestic, municipal, mining, industrial, mechanical, recreational, environmental, and power. This multitude of uses on the lands within the District has existed since the first diversions of the Colorado River to the Valley; never with exclusivity or priority among the varied uses. All the users on land within the water service territory of the District have a right to service and are the beneficiaries of the trust purposes of the District, a public agency and sole holder of the Valley's water rights to the Colorado.

The Imperial Valley Coalition for the Fair Sharing of Water is comprised of irrigating and non-irrigating landowners and tenants, businesses, industrial enterprises, power generators, labor unions, residential homeowners and tenants, and cities. The Coalition seeks reversal of the judgment entered in the Abatti v. Imperial Irrigation District case, a decision that threatens their rights to water service as beneficiaries of the District.

According to the Statement of Decision and Judgment issued by Judge Anderholt, "the users own the equitable and beneficial interest in the water rights . . . appurtenant to their lands and is a constitutionally protected property right. . . . [that] Respondent District cannot take . . . from the present owner of the lands to which they are appurtenant and transfer those rights or the appurtenances to other beneficiaries without appropriate consideration."

Coalition members are these "other beneficiaries," possessing a right to water service equal to Abatti's. The Coalition rejects the erroneous Anderholt Decision conclusion that the District "holds mere legal title" to water rights for the special benefit of irrigating landowners.

The District was created by popular vote at a general election. Its initial funding was by assessments against all landowners, regardless of the use of their property, and from water rates paid by all water users, regardless of their purpose of use. The District has always been governed by a popularly elected Board of Directors. The contract to build and pay for the All-American Canal ("AAC") required and received approval by popular vote.

The AAC was paid for with revenues from the sale of energy generated on the AAC.

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