Glen Martin in California Lawyer: Whose Groundwater Is It?

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Whose Groundwater Is It?

From tiny Scott Valley flows a huge issue: the scope of the public trust doctrine.

by Glen Martin | November 2014

From his ranch headquarters – a ramshackle office liberally festooned with mounted deer heads and waterfowl – Tom Menne has a lovely view of Scott Valley, just west of Mount Shasta in Siskiyou County. Or he would if the vista weren’t utterly obscured by smoke from a large complex of wildfires burning in the adjacent Klamath Mountains.

“It’s been this way for about a month now,” Menne says of the resinous pall. “You kind of get used to it.”

Maybe. But the smoke is acrid and daunting. If you could penetrate it, you’d see an idyllic tableau of pasture and hay fields, many lush and green with alfalfa, others speckled with grazing cattle. The Scott Valley lends itself to any number of clichés: God’s Country. Shangri La. A Chosen Place. Such characterizations may be hackneyed, but that doesn’t mean they aren’t true. The Scott Valley is beautiful.

Oddly enough, though, its 1,500 or so residents feel they’re under siege. Their way of life – growing alfalfa and raising cattle – depends on water from the Scott River and its underlying aquifer. That water is in increasingly scant supply. The three-year drought has a lot to do with it, of course. But the valley’s ranchers also face another threat, one that has nothing to do with Mother Nature.

For decades, residents have irrigated from the Scott River and its associated aquifer as they needed. The State Water Resources Control Board (SWRCB) regulates the amount of water taken from rivers and streams, but not groundwater. Historically, the watershed was an abundant source of water, and the ranchers and farmers along the river’s 60-mile course prospered.

But those halcyon years may be drawing to an end. Valley residents already have accommodated themselves to an adjudication of the river’s watershed, prompted by a previous drought: More than 30 years ago, the Legislature gave the SWRCB express statutory authority to allocate the Scott Valley’s groundwater. (See Cal. Water Code § 2500.5.)

After the board quantified the amount of water in the Scott River system, prioritized the stakeholders, and then declared that it would regulate groundwater pumping accordingly within 500 feet of the river, the Siskiyou County Superior Court proscribed any further water rights claims to the system. (In re Scott River Stream System, Decree No. 30662 (Siskiyou Cnty. Super. Ct. order filed Jan. 16, 1980).)

Now that order may have to be rewritten. In a case filed in 2010 against the SWRCB and Siskiyou County, Sacramento Superior Court Judge Allen H. Sumner found last summer that the rarely invoked public trust doctrine protects the Scott River against harmful extraction of groundwater.

The Scott River, which flows into the Klamath, is a major spawning destination for endangered salmon. Increasingly, it runs dry.

The doctrine dates to the reign of the Roman emperor Justinian, who declared that seas, tidelands, beaches, air, and fresh water sources were held jointly by all citizens. The public trust doctrine was incorporated into English common law and subsequently into American common law. In the late 19th century, it was buttressed by a U.S. Supreme Court decision that sustained state government efforts to prevent ceding a big chunk of Chicago harbor to private interests. The Court in that case proscribed excluding the public from lands associated with navigable waters. (Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387 (1892).)

But the Scott River is steep and rocky, and its most salient characteristic is rapids – some of them quite fearsome. Is the Scott River navigable? Well, yeah – if you’re an expert whitewater paddler, and then only during the late winter and early spring runoff.

Judge Sumner’s ruling was carefully crafted. “[T]he court does not find groundwater itself is a resource protected by the public trust doctrine,” he cautioned, specifying that the doctrine applies when the extraction of groundwater harms “the public’s right to use those navigable waters for trust purposes.” (Envtl. Law Found. v. S.W.R.C.B., 34-2010-80000583 (Sacramento Super. Ct. order filed July 15, 2014).)

Two months later the Scott Valley ranchers took a second unexpected blow. After the dry summer produced an early fire season, the Legislature passed the Sustainable Groundwater Management Act – three bills that promise to regulate groundwater extraction statewide. (California had been the only state besides Texas that did not actively monitor and manage groundwater resources.)

Over the objection of growers, Gov. Jerry Brown signed the bills in September. (See “Barely Wet – But Managed”) They raise the prospect of meters on all water wells, tough pumping restrictions, and perhaps even state officials wandering onto private land to ensure their enforcement.

All of which runs counter to the “live free or die” ethos of Scott Valley’s ranching community.

“We want to get along with everybody, and we want to do the right thing,” says Menne, who gets up every day at 3 a.m. to farm hay on his family’s 2,000-acre spread. “But I support a lot of people on this ranch – my kids, and their kids. We depend on that water. We have to have it. When you tell a man you’re taking away the thing that he needs for his livelihood – well, you don’t want to do that.”

The Scott River basin is more than just a source of water for the valley’s ranchers. It is also a spawning destination for Chinook salmon, Coho salmon, and steelhead. Or at least it is when the river doesn’t run dry, which happens with increasing frequency. The Scott is a tributary of the Klamath River, once a mighty producer of fish, second only to the Sacramento River system in its productivity. Even today, the Klamath – dammed and diminished at its Oregon headlands and in California – still pumps out a lot of fish: close to 200,000 Chinooks in a good year. These salmon are essential to commercial fishing along the California coast, and to the sport-angling and tourism businesses along the Oregon state line.

The Scott joins the Klamath near the hamlet of Hamburg. About 150 miles to the west, the Klamath reaches the ocean on lands owned by the Yurok tribe, which depends on the river’s fish for both subsistence and income. About 65 miles down the coast from the river’s mouth, the North Coast’s remaining commercial fishing fleet is based in the small city of Eureka.

A fair number of the port’s fishermen still wrest a living from the salmon stocks, including David Bitts, president of the Pacific Coast Federation of Fishermen’s Associations and lead plaintiff in the Environmental Law Foundation’s (ELF)Scott River litigation. Recently, Bitts had breakfast at his usual spot in Humboldt Bay: the modest café at the Woodley Island Marina, where he docks his 45-foot troller.

With his trim white beard, deep tan, and piercing eyes, Bitts looks like a central-casting choice for the doughty fishing boat skipper. He has fished more than 40 years for salmon and Dungeness crab – and occasionally for albacore tuna. His business thrives or dries up depending on the condition of the fisheries. It’s no surprise, then, that his take on the public trust doctrine is different from Menne’s.

“The fleet is maybe 20 percent of what it was when I started fishing in 1973,” Bitts says as he addresses a plate of bacon and eggs. “There’s no doubt that the situation on the Klamath and its tributaries has had a lot to do with that collapse.”

He explains that because some salmon species – notably Coho and the coastal fall-run Chinook – are listed as endangered or threatened, state regulators have significantly restricted salmon fishing.

“All those fish – from the Klamath, the Sacramento, other rivers – mix out there in the ocean,” Bitts says. “So the regulatory agencies feel the need to be cautious. They don’t want to see overfishing of any of the threatened Klamath stocks. On top of that, the Klamath tribes [the Yurok, Hupa, and Karuk] get one-half of the harvestable fish. The agencies also want to see at least 35,000 wild fish and 50,000 hatchery fish escape up the river to spawn. So we only get to fish about 25 percent of the stock. That’s a big constraint on the fishery.”

The Scott looms large in this calculus, Bitts adds, because typically it accounts for about 20 percent of the Chinook runs throughout the Klamath system, and about half of the Coho spawning in northern California and southern Oregon. “The bottom line is that we can’t lose the Scott’s runs and maintain a viable commercial salmon fishery,” he says.

Bitts characterizes Judge Sumner’s ruling in the Scott River matter as narrowly framed, but “a good start” that explicitly makes the connection between river flows and groundwater reserves.

“By linking groundwater to the surface volume of navigable rivers and their tributaries, the public trust doctrine comes into play, and that’s essential for establishing adequate flows down our salmon streams,” Bitts says.

That “good start,” of course, depends on what happens to the Scott River litigation on appeal. All parties are eager to have the appellate courts interpret Judge Sumner’s application of the public trust doctrine issue. Siskiyou County filed a petition for expedited review by the state Supreme Court. James Wheaton, lead plaintiffs attorney and the ELF’s legal director, responded in support of the petition.

“We chose the Scott River as a test case because it’s the only stream in the state where the Legislature has said that an adjudication of the stream had to include groundwater,” says Wheaton. “It’s unique – in fact, there’s a special section in the state Water Code that specifically addresses the Scott River situation. What this means is that the court doesn’t have to decide if groundwater is connected to the Scott’s surface waters. The Legislature has already done that.”

If it’s upheld, Wheaton says, Sumner’s ruling signals a seismic shift in state groundwater law. “The legal landscape is changing rapidly as California moves out of a 19th-century framework into one appropriate for the 21st century, in which we measure, monitor, and regulate groundwater,” he says.

Referring to the state’s recent package of groundwater legislation, Wheaton continues, “The Legislature and the governor have acted. Now it’s up to the courts to act, to set the rules.”

But Siskiyou County contends that under the SWRCB’s 1980 adjudication and decree, only the local watermaster has authority to measure surface-water diversions and groundwater extractions in the Scott Valley. In its petition to the state Supreme Court, the county asserts that only “the Legislature is responsible for administering the public trust, and … its judgment is ‘conclusive.’ ”

In addition, the Legislature hasn’t actually authorized the State Water Resources Control Board to regulate groundwater, the petition continues. In fact, it has precluded the agency from such action, authorizing counties to use their “judgment and discretion in deciding whether and how to regulate groundwater.”

The county’s petition maintains that “Siskiyou County and other counties do not regulate the use of groundwater under the public trust doctrine, and no California court has ever held or suggested that they are required to do so.”

In other words, says Roderick E. Walston, an environmental lawyer at the Walnut Creek office of Best Best & Krieger who argued for the defendants in the Scott River case, “The discretion to regulate as determined by the Legislature is very different from a duty to regulate.”

Wheaton, on the other hand, sees no error in Judge Sumner’s ruling. In his response brief supporting expedited review, Wheaton maintains, “The trial court was correct: the public trust doctrine protects navigable waterways from harm caused by groundwater extraction. Similarly, the state and its subdivisions, including the county, are under an affirmative obligation to consider public trust when issuing well permits and to protect the public trust so far as it is feasible to do so.”

Craig Tucker, the Klamath campaign coordinator for the Karuk tribe, says both sides in the ELF’s appeal hope to achieve a strong legal precedent to sustain their positions. “If the original decision stands,” he says, “it will be a victory for the fish and fishery advocates.”

Glen H. Spain, northwest regional director and general counsel for the Pacific Coast fishing trade group, adds that the presence of critically endangered Coho salmon and recent studies linking groundwater with surface flows make the Scott River an ideal venue for challenging California’s policies. “These issues are identical or similar to the problems facing many of California’s rivers,” says Spain, who is co-counsel in the appeal.

Contrary to the claims of some ranchers and their counsel, Spain contends that the Scott Valley basin is not fully adjudicated. The 1980 decree, he points out, applies only to the 500-foot-wide strips along the riverbanks. “Our petition does not challenge the court’s authority over the adjudicated strips,” Spain says. “But the rest of the groundwater basin – where most of the water is, and where much of the pumping takes place – is not adjudicated. It remains under state authority, and it must ultimately be resolved in the California Supreme Court.”

The ELF’s Wheaton sees strong parallels between Judge Sumner’s ruling and the 30-year-old decision that protected Mono Lake from excessive diversions by the Los Angeles Department of Water and Power. In that case the state Supreme Court granted appellants expedited review, and it ultimately determined that the public trust doctrine applied to the lake and its associated streams and watersheds. (Nat’l Audubon Soc’y v. Superior Court, 33 Cal. 3d 419 (1983).) As Wheaton sees it, Sumner’s ruling in the foundation’s lawsuit “takes the Mono Lake ruling and applies it underground.”

In his response brief in support of Siskiyou County’s writ petition, Wheaton hammers on the significance ofNational Audubon to the Scott River dispute. “The present case can be thought of in some ways as National Audubon II,” he argues. “[T]he Court noted [in National Audubon] that the case ‘[brought] together for the first time two systems of legal thought: the appropriative water rights system which since the days of the Gold Rush has dominated California water law, and the public trust doctrine which, after evolving as a shield for the protection of tidelines, now extends its protective scope to navigable lakes.’ … [B]y taking the case, the Court was able to settle disputes concerning the relationship between the two systems and ‘integrate the teachings and values’ of both systems.”

Similarly, Wheaton contends that the ELF’s case “brings together two separate approaches to managing water. As the courts have observed, California is the ‘only Western state that still treats surface water and groundwater under separate and distinct legal regimes.’ … [Like] the ‘collision course’ traveled by the competing theories in National Audubon, the legal and hydrological fiction of treating surface and groundwater separately is now recognized as a hindrance to sound water management policy.”

By compelling the county to consider the public trust doctrine before issuing well-drilling permits, Wheaton says, Sumner’s ruling “essentially confirmed that groundwater pumping can be regulated. … For the first time, [a state judge effectively] said groundwater extraction must be measured and managed.”

But defense counsel Walston vehemently disagrees. Thirty years ago, Walston represented the Los Angeles water and power utility in National Audubon. And he recalls that the high court didn’t wholly adopt the plaintiffs’ argument in that case, holding that “both the public trust doctrine and the water rights system embody important precepts which make the law more responsive to the diverse needs and interests involved in the planning and allocation of water resources.” (Nat’l Audubon Soc’y, 33 Cal. 3d at 445.)

Reiterating the position he laid out in Siskiyou County’s writ petition, Walston emphasizes the importance of the Legislature in water rights adjudication. “Judge Sumner determined that the state has the public trust duty to regulate groundwater,” he says. “But ultimately, the Legislature is responsible for defining and applying the public trust doctrine. It has determined that it’s up to local agencies to stipulate the degree and extent of groundwater regulation. The courts can’t just come in and override what the Legislature has mandated.”

By passing the Sustainable Groundwater Management Act, however, the Legislature has fundamentally changed the debate. Ranchers in the Scott Valley may be exempt from any new restrictions because of the 1980 Scott River decree. But for landowners in nonadjudicated districts, the days of unrestricted use of water taken from aquifers under their properties are ending.

The three new bills will require local agencies – most often the county – to draw up and enforce groundwater management plans with the goal of preventing overdrafts. The state water resources board will review all the plans, and intercede if safeguards are found to be inadequate. Adjudicated basins must produce annual groundwater use reports, but except for judicial orders they generally will be exempt from further regulation.

Still, says the fishing associations’ Spain, groundwater must be definitively addressed in the courts before it can be effectively regulated by the Legislature. The act is a long-range planning statute, he notes, and it will take years – perhaps decades – to be fully implemented.

“The legislation does not change the course of the litigation,” says Spain. “The fundamental legal issues have to be resolved by the California Supreme Court, and that will ultimately guide implementation of the act.”

Though the ultimate legal framework remains uncertain, any whiff of additional groundwater regulation gives the heebie-jeebies to Menne and his Scott Valley neighbor, Preston Harris, who farms 500 acres of hay and runs about 175 cattle. Harris says he feels the ranchers have reached out in good faith to fisheries advocates and environmentalists, only to have their efforts largely spurned.

Harris is also executive director of the Scott River Water Trust, a voluntary organization that uses private foundation grants to lease water from rights-holders in the valley. Between 2007 and 2012 the trust purchased – at a cost of $161,195 – and released 1,777 acre-feet of water, most of it during the winter and fall when the fish are most vulnerable.

“We’re extremely concerned about the fish,” Harris says. “We’re irrigating with the minimal amount of water necessary to get a crop in – not just turning on a tap and forgetting about it. But we’ve also funded exhaustive studies that demonstrate groundwater extraction can’t be correlated one-to-one with surface flows. It’s not that simple.”

And although Harris doesn’t expect the new groundwater laws to result in intensive monitoring of wells,” he adds, “I do think there would be great resistance if that were the case.”

Menne agrees that the valley’s ranching community has bent over backward to accommodate environmentalists. So he deeply resents the possibility of metered water pumps, mandatory annual reports, and encounters with officious state bureaucrats.-

“I’m just worried that in the end there will be a lot less water for us, and we’re going to have to pay for the management of what we do get,” Menne says. “At a certain point people are going to just say, ‘Enough.’ And if I have to be the guy who goes to jail because I’m protecting my property, my income, my way of life – well, I can be that guy.”

 

Them’s fightin’ words in this part of the country. But Karuk spokesman Tucker says the Klamath tribes and the fishermen aren’t intimidated. “We’re as committed to having water in the river as they are to taking it out,” he says. “We’re just as determined, just as adamant, as they are. We’re not giving up, or going away.”

 

Furthermore, says Tucker, fishery advocates have their own studies – one conducted by the Karuk tribe, the other by researchers at the University of California at Davis – to counter the ranching community’s research. But all the studies dovetail on one point, Tucker acknowledges: The Scott River aquifer is not in a state of overdraft. In other words, the groundwater typically recharges each spring with runoff from the usually abundant winter snow pack in the Klamath Mountains.

However, Tucker says, “we’ve also determined that groundwater pumping is affecting surface flows. It’s taking longer each season to recharge the aquifer. We see the river going dry in normal water years – and there’s nothing normal about that. It just isn’t sustainable.”

Complicating the debate in the Klamath River basin is the extensive cultivation of marijuana, which draws from surface streams and presumably the aquifers beneath them. Siskiyou County Sheriff Jon Lopey recently estimated that illegal growers there siphon off one million gallons a day, imperiling legitimate agriculture.

Siskiyou County counsel Brian Morris sees another potential hazard in Judge Sumner’s Scott River ruling: paralysis in the superior courts. Morris explains that counties address various permits through either ministerial or discretionary methods. Most counties handle well permits through minis-terial channels – that is, anyone who comes into the planning department with a drilling request will be issued a permit pro forma, as long as the proposed construction and operation of the well meet accepted criteria.

The discretionary review that Sumner’s ruling implies, on the other hand, brings more opportunities for legal disputes. “Say a guy comes in with a parcel map for a new subdivision,” Morris says. “The county reviews and approves it. At that point, it’s open to challenges under the California Environmental Quality Act.” If the approval stands, he says, any new well permits would be considered discretionary actions, and therefore also vulnerable to CEQA challenges.

Such challenges, in fact, could become commonplace, Morris says. “Because CEQA provides for attorney fees for prevailing plaintiffs, there is considerable incentive to file petitions,” he says. “We’ve already spent a lot of money in Siskiyou County on CEQA challenges, and we’re not looking forward to spending more. The county court’s docket is already filled – more than filled – with criminal and civil cases.”

Ultimately, of course, Judge Sumner’s ruling isn’t just about the Scott River or Siskiyou County. If his application of the public trust doctrine to groundwater extraction is upheld, the ruling will resonate statewide. Its impact on groundwater law could be as significant to California as the effect of National Audubon on surface water regulation.

Indeed, for most of the state’s approximately 500 unadjudicated water basins – many of them in the parched Central Valley – it’s clear that the freewheeling days of unlimited groundwater pumping are over. But even with cutbacks, in a semiarid state with 38 million residents and counting, is there enough fresh water to slake every thirst? Can we have salmon and almond trees, suburban lawns and shopping malls, fracking wells and high-tech industry? Or does something have to give?

Tucker thinks an accommodation can be reached, but he acknowledges it won’t be easy. He cites the Klamath River Settlements, which are inching toward implementation along the upper reaches of the basin. In January 2008 Indian tribes, fishermen, ranchers, and environmentalists in Oregon and California – 28 parties in all – signed the Klamath Basin Restoration Agreements. Later that year they executed a separate Agreement in Principle with a regional electric utility to remove four hydropower dams on the upper Klamath River. (See “A River Runs Through It,” California Lawyer, May 2009.)

“That was a heavy lift, and there were plenty of times when stakeholders felt it wasn’t going to be possible to get anything done,” Tucker says. “But we reached an agreement. Nobody is completely happy with it, but we reached one.”

So perhaps there’s some hope for compromise in Scott Valley. Tucker says the drought has produced a few sidebar agreements between supporters of local ranchers and fisheries. The two groups, he adds, have had some productive discussions about filling the valley’s irrigation ditches and canals with runoff during the late winter and spring, and then measuring the rate of percolation to the groundwater below.

“It’s possible that could be a way of maximizing aquifer recharge,” Tucker says. “I think those meetings show that if we’re going to get anywhere on the Scott – or with other groundwater basins in California – people are going to have to sit down and really talk it out. Otherwise, we’ll just keep suing each other, and everyone will lose but the lawyers.”

Glen Martin is a freelance environmental writer based in Santa Rosa.

Whose Groundwater Is It? From tiny Scott Valley flows a huge issue: the scope of the public trust doctrine. by Glen Martin

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