On February 4, 2020 local judge Brooks Anderholt wrote an opinion that is a breath of fresh air for those of us concerned about who controls water in Imperial County.
With one deft stroke, Judge Anderholt put to rest many farmers’ claim that agricultural landowners are the sole beneficiaries of the Imperial Irrigation District’s rights to Colorado River water.
This is a complex issue with deep historical roots, but recent developments tell the story well enough.
Water from the Colorado River supplies the needs of 40 million people in seven states. With development and population growth, coupled with climate change and drought, it’s become clear that there is not enough water to go around. Not enough, unless every agency creates a plan to reduce its water use.
The IID came up with such a plan called the Equitable Distribution Plan (EDP) back in 2010. It went through several revisions. In 2013, local farmer Mike Abatti (a former IID director) sued the IID, claiming that the plan was unfair to farmers because it prioritized other users. In 2017, Judge Brooks Anderholt agreed. IID had to repeal its plan.
Judge Anderholt ruled that landowners have a constitutionally protected private property right to water. In the case of transfer of those rights to others, landowners would have to be “offered consideration.” In plain language, consideration means payment.
Judge Anderholt’s 2017 ruling appeared to yank control of allocation of water from the IID board and hand it to agricultural landowners. IID appealed this ruling, and four other parties filed arguments in support of the IID position, including the I.V. Coalition for Fair Sharing of Water, headed up by former Imperial County Supervisor Wally Leimgruber.
A three-judge panel will soon have their say on Judge Anderholt’s 2017 opinion.
Meanwhile, Judge Anderholt was back in the spotlight when the IID signed a contract to provide new, previously unallocated water to Heber Geothermal Company (HGC). Mr. Abatti again sued, saying that the IID had violated Judge Anderholt’s order and therefore was in contempt of court. The new contract seemed to guarantee water, creating a priority over agriculture, and did not include “consideration” to agricultural landowners.
On February 7, 2020, Judge Anderholt had his answer. The IID was not guilty of contempt of court, he said, for two reasons. First (and this is the biggie), just like farmers Heber Geothermal owns land. Since land has appurtenant water rights, Heber Geothermal has water rights just like farmers do. In both cases, the water right is a right to service from the IID. Second, in case of a shortage, the IID can reduce HGC’s supply of water in the same proportion, or even more, than other water users. In this way farmers will not be unfairly hurt.
Mr. Abatti and the Farm Bureau have argued that only agricultural landowners have rights to water. Now, Judge Anderholt has refuted that claim. If you’re a landowner in Imperial Valley, you own a right to water service.
Judge Anderholt’s new opinion doesn’t mention the requirement of offering consideration to farmers for new water. And how can it, since all landowners are equal in having rights to water? There’s no more “us” and “them,” among landowners—only “us.” So the issue of farmer’s owning special rights appurtenant to their land evaporates.
The new ruling also puts to rest the idea that by providing water to a new user, the IID has reduced the amount of water available to farmers. This frees the IID up to use many options-- including conservation and water banking to equitably meet the needs of its customers.
Judge Anderholt’s new opinion re-establishes the IID Board’s authority. In 2017, Judge Anderholt wrote, “Imperial Irrigation District lacks authority to further implement the 2013 EDP….” During the hearings, when the IID attorney asserted that the Board had the authority to determine an equitable plan, Judge Anderholt replied, “Well, no. Today, it’s actually for me to decide.”
In the February 7, 2020 decision, Judge Anderholt was deferential to the IID Board. He wrote, “The very nature of IID vests discretion in its Board and management that this court has no jurisdiction to direct absent an abuse of that discretion.” So while in 2017, Judge Anderholt was quite willing to assert the court’s intrusive role in IID’s policy-making decisions, in 2020 he is taking the opposite tack: hand’s off.
Judge Anderholt has disarmed big chunks of his own previous ruling without contradicting it. Judge Anderholt has gotten himself mostly off the hook. Now the court of appeals can finish the job by simply saying that the IID owns its water rights for all users, and not just farmers. And the elected IID Board of Directors has the authority to allocate the water, not the court.
Brian McNeece is a member of the I.V. Coalition for Fair Sharing of Water and the IBWC Colorado River Citizens Forum