Petition for Writ of Certiorari — Stanford Vina Ranch Irrigation Company, Petitioner v. California, et al.

Supreme Court briefDec 22, 2020

Ask Donna

What actually matters in this document.

Text

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------STANFORD VINA RANCH IRRIGATION COMPANY,

Petitioner,

v.

STATE OF CALIFORNIA, STATE WATER

RESOURCES CONTROL BOARD, STATE WATER

RESOURCES CONTROL BOARD MEMBERS

FELICIA MARCUS, DOREEN D’ADAMO,

FRANCES SPIVY-WEBER, STEVEN MOORE,

AND TAM DODUC; and DOES 1 THROUGH 20,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari To The

Court Of Appeal Of The State Of California,

Third Appellate District

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------PAUL R. MINASIAN

Counsel of Record

JACKSON A. MINASIAN

MINASIAN, MEITH, SOARES,

SEXTON & COOPER, LLP

1681 Bird Street, P.O. Box 1679

Oroville, California 95965

Telephone (530) 533-2885

Fax (530) 533-0197

Email: pminasian@minasianlaw.com

Email: jminasian@minasianlaw.com

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

California water rights are real property rights

pursuant to 160 years of California and Federal case

law. “As such, they cannot be infringed by others or taken

by government action without due process and just compensation.” United States v. SWRCB, 182 Cal.App.3d 82,

101 (1986). Like nuisance, there is no property right in

an “unreasonable” use or diversion of water. Cal. Const.

Art. X, § 2.

Without due process or just compensation, the State

of California adopted and implemented regulations declaring the use and diversion of water by a small group

of named water right holders on three small creeks to

be “unreasonable.” The State claimed an emergency

and argued, and the lower courts accepted, that constitutional rights to due process and compensation were

inapplicable because the regulations declared the targeted right holders’ use and diversions of water to be

“unreasonable,” and there is no property right in an

unreasonable use or diversion of water. The State said

it was an emergency in 2014, and again in 2015, and

that the actions were “styled” as quasi-legislative regulations because of “exigent” emergency circumstances.

Landowners were prohibited from utilizing their property right to divert and use their water for irrigation of

crops as they had done for over 100 years.

Questions:

Whether government may avoid constitutional

rights to due process and compensation by crafting

ii

QUESTIONS PRESENTED – Continued

quasi-legislative regulations that eliminate the property interest of specific individuals and take their property.

Whether government may take the water of adjudicated California water rights for a public use without

compensation or due process.

Whether an assertion of emergency authority alters constitutional rights to compensation and due process.

Whether the public trust doctrine may be asserted

to the property rights of Mexican Land Grant lands,

and without compensation or balancing.

iii

LIST OF ALL PARTIES

The party to the judgment from which review is

sought is Petitioner Stanford Vina Ranch Irrigation

Company (“Petitioner” or “Stanford Vina”). Stanford

Vina was a party in all proceedings below. Respondent

is the State of California, the State Water Resources

Control Board of California and State Water Resources

Control Board Members Felicia Marcus, Doreen D’Adamo,

Frances Spivy-Weber, Steven Moore, and Tam Dudoc.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

Stanford Vina states that it has no parent corporation

and that no publicly held company owns 10% or more

of its stock.

RELATED PROCEEDINGS

Stanford Vina Ranch Irrigation Company v. State of

California, et al., Sacramento Superior Court, No. 342014-80001957, September 6, 2017. App. E.

Stanford Vina Ranch Irrigation Company v. State of

California, et al., Court of Appeal of California, Third

Appellate District No. C085762, Opinion filed June 18,

2020 App. A, Modification of Opinion filed July 8, 2020

App. B, Rehearing denied July 6, 2020. App. C.

Stanford Vina Ranch Irrigation Company v. State of

California, California Supreme Court, Case No. S263378,

Petition for Review denied September 23, 2020. App. F.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

LIST OF ALL PARTIES ......................................

iii

CORPORATE DISCLOSURE STATEMENT ......

iii

RELATED PROCEEDINGS ................................

iii

TABLE OF AUTHORITIES ................................. xii

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL AND REGULATORY PROVISIONS AT ISSUE .........................................

2

INTRODUCTION ................................................

3

STATEMENT OF THE CASE..............................

6

A.

Background ................................................

6

B.

The Emergency Regulations and Curtailment Orders ...............................................

8

Evidentiary Hearing and Compensation

Requests ....................................................

9

C.

D.

Alternative Supplies and Unfinished Projects ............................................................. 10

E.

Stanford Vina’s State Court Lawsuit ........ 11

F.

The Trial Court’s Decision ......................... 12

G.

The Opinion of the Third District Court of

Appeal of California and the Petition to

the California Supreme Court ................... 13

v

TABLE OF CONTENTS – Continued

Page

REASONS FOR GRANTING THE PETITION ... 15

I.

The Court Should Grant the Petition to

Address Whether Due Process and Compensation Is Required for Actions Styled as

Quasi-Legislative Rules or Regulations

that Target Small Groups or Specific Individuals and Take Their Real Property ..... 15

A. The Court Should Reconcile this Case

with the Distinction of Adjudicatory

and Legislative Actions and Address

How Due Process Rights Apply When

Legislative Actions Target the Property Rights of a Small Group or a Single Individual ...................................... 16

B. There is Conflict in the Lower Courts

on the Application of Due Process to

Legislative Actions that Target Small

Groups or Specific Individuals ............ 18

C. This Case Conflicts with Decisions

Prohibiting Government from Interfering with Property Rights Without

Procedural Due Process ....................... 20

D. The Court Should Grant the Petition

to Resolve the Conflict Between this

Case and Other Circuits that Have

Prohibited States from Defending Against

Due Process Claims by Asserting the

Property Interest Was Eliminated by

the Challenged Action ......................... 21

vi

TABLE OF CONTENTS – Continued

Page

E. This Case Conflicts with Decisions Prohibiting Government from Reclassifying Private Property as Public Property

Without Compensation, and Requiring

Compensation for Both Legislative

and Adjudicatory Actions that Take

Property ............................................... 22

II.

This Court Should Grant the Petition to

Resolve the Conflict Between this Case

and the Decisions by this Court and the

Federal Court of Claims Requiring Compensation for Government Interference with

California Water Rights............................. 23

A. Government Interference with a California Water Right is a Physical Taking of Property Under Decisions of

This Court and the Court of Claims ..... 24

B. The Assertions of California’s “Unreasonable” Standard in this Case is Unprecedented ......................................... 26

C. The State’s Actions Were a Substitute

Public Project ...................................... 28

D. Review Should be Granted to Address

the Policy Implications of Destabilizing

California’s Water Rights System by Excusing Compensation Requirements .... 29

III.

This Court Should Grant the Petition to

Address How Assertions of Emergency

Authority Alter Constitutional Rights to

Compensation and Due Process ................ 30

vii

TABLE OF CONTENTS – Continued

Page

IV.

This Court Should Grant Review to Resolve the Conflict of this Case with Summa

Corp. v. California State Lands Comm’n, 466

U.S. 198 (1984) and to Address Whether

the Public Trust Doctrine May be Asserted

Without Compensation or Balancing ........ 33

CONCLUSION..................................................... 35

APPENDIX

Opinion, Court of Appeal of California,

Third Appellate Distrtict,

filed June 18, 2020 ........................................... App. 1

Order Modifying Opinion,

Court of Appeal of California,

Third Appellate Distrtict,

filed July 8, 2020 ............................................ App. 48

Denial on Hearing,

Court of Appeal of California,

Third Appellate Distrtict,

filed July 6, 2020 ............................................ App. 50

Amended Statement of Decision,

Sacramento County Superior Court,

filed August 2, 2017........................................ App. 51

Judgment,

Sacramento County Superior Court,

filed September 6, 2017................................ App. 115

Denial of Petition for Review,

State of California Supreme Court,

filed September 23, 2020.............................. App. 118

viii

TABLE OF CONTENTS – Continued

Page

Article 10 § 2, California Constitution ............ App. 119

Resolution No. 2014-0023

State of California

State Water Resources Control Board

Dated May 21, 2014 ..................................... App. 121

Resolution No. 2015-0014

State of California

State Water Resources Control Board

Dated March 17, 2015 .................................. App. 142

Order WR 2014-0022-DWR

State of California

California Environmental Protection Agency

State Water Resources Control Board

Division of Water Rights

Dated June 5, 2014 ...................................... App. 159

Order WR 2014-0031-DWR

State of California

California Environmental Protection Agency

State Water Resources Control Board

Division of Water Rights

Dated March 6, 2015 .................................... App. 168

Order WR 2015-0019-DWR

State of California

California Environmental Protection Agency

State Water Resources Control Board

Division of Water Rights

Dated April 17, 2015 .................................... App. 175

ix

TABLE OF CONTENTS – Continued

Page

Order WR 2015-0036-DWR

State of California

California Environmental Protection Agency

State Water Resources Control Board

Division of Water Rights

Dated October 22, 2015................................ App. 183

Court Reporter Transcript of SWRCB Workshop

Administrative Record Bates Nos. 008249,

008253, 0082555, Transcript pages 11:1612:6, 26:24-28:17, 33:5-14

Dated May 20, 2014 ..................................... App. 192

Propose Rulemaking Package for May 20, 2014

SWRCB Board Meeting

Administrative Record Bates

Nos. 007815-007816 ..................................... App. 196

Court Reporter Transcript of SWRCB Workshop

Administrative Record Bates Nos. 008285-8286

Reporter Transcript pages 156:25-157:11

Dated May 20, 2014 ..................................... App. 198

Notice of Proposed Emergency Rulemaking

Administrative Record Bates

Nos. 008082-008083 ..................................... App. 199

Hon. Timothy Frawley,

Judge of the Superior Court of California,

County of Sacramento

Stanford Vina Ranch Irrigation

Company v. State of California, et al.

Reporters Transcript page 47:15-20

Dated July 21, 2017 ..................................... App. 200

x

TABLE OF CONTENTS – Continued

Page

NOTICES OF REGULATIONS

Administrative Record Bates Nos. 008052008081 .......................................................... App. 201

Memorandum of Agreement Between the State

of California Department of Fish & Game,

Department of Water Resources, and

Deer Creek Irrigation District For

Construction, Operation, Maintenance

and Monitoring of a Flow Enhancement

Program on Deer Creek in Tehama County

Administrative Record Bates

Nos. 002843-002859 ..................................... App. 205

1993 Central Valley Action Plan

California Department of Fish and Wildlife

Administrative Record Bates

Nos. 000900-000901 ..................................... App. 208

Agreement for the Implementation of a

Long-Term Cooperative Management

Plan for Mill Creek [2007]

Administrative Record Bates

Nos. 002700-002720 ..................................... App. 209

Central Valley Salmon And Steelhead Recovery

Plan Watershed Profiles October 2009

Administrative Record Bates

Nos. 003100-003102 ..................................... App. 211

xi

TABLE OF CONTENTS – Continued

Page

Memo: Minimum Protection Flows for Listed

Salmonids during the 2014 California

Drought for Mill, Deer and Antelope creeks

in the California Central Valley

Administrative Record Bates

Nos. 006872; 007845-007848 ....................... App. 212

Propose Rulemaking Package for

May 20, 2014 SWRCB Board Meeting

Administrative Record Bates No. 7808 ....... App. 213

xii

TABLE OF AUTHORITIES

Page

CASES

75 Acres, LLC v. Miami-Dade County, Fla.,

338 F.3d 1288 (11th Cir. 2003) ..................................4

Arizona v. California,

460 U.S. 605 (1983) .................................................29

Armstrong v. United States,

364 U.S. 40 (1960) ...................................................23

Bennett v. Tucker,

827 F.2d 63 (7th Cir. 1987) ......................................21

Bi-Metallic Investment. Co. v.

State Board of Equalization,

239 U.S. 441 (1915) ........................................... 16, 17

Cal. Trout, Inc. v. SWRCB,

207 Cal.App.3d 585 (1989) ......................................28

Casitas Mun. Water Dist. v. United States,

543 F.3d 1276 (2008 Fed. Cl.) ..................... 24, 25, 29

Casitas Mun. Water Dist. v. U.S.,

556 F.3d 1329 (2009 Fed. Cl.) ..................... 24, 25, 29

Casitas Mun. Water Dist. v. United States,

102 Fed.Cl. 443 (2011 Fed. Cl.) ....... 24, 25, 29, 30, 34

Club Misty, Inc. v. Laski,

208 F.3d 615 (7th Cir. 2000) .......................... 4, 19, 20

Connecticut v. Doehr,

501 U.S. 1 (1991) .....................................................20

Dibble v. Quinn,

793 F.3d 803 (7th Cir. 2015) ................................ 4, 19

xiii

TABLE OF AUTHORITIES – Continued

Page

Dugan v. Rank,

372 U.S. 609 (1963) ............................. 5, 7, 24, 25, 29

First English Evangelical Lutheran

Church of Glendale v. Los Angeles,

482 U.S. 304 (1987) ............................................. 5, 22

Gin S. Chow v. City of Santa Barbara,

217 Cal. 673 (1933) ........................................... 27, 28

Harris v. County of Riverside,

904 F.2d 497 (9th Cir. 1990) ....................................18

Horn v. County of Ventura,

24 Cal.3d 605 (1979) ......................................... 17, 19

Illinois Central Railroad Co. v. Illinois,

146 U.S. 387 (1892) .................................................34

In re Upstream Addicks and Barker

(Texas) Flood-Control Reservoirs,

146 Fed.Cl. 219 (2019) ............................................32

International Paper v. United States,

282 U.S. 399 (1931) .................................................24

Joslin v. Marin Municipal Water District,

67 Cal.2d 132 (1967) ...............................................28

L C & S, Inc. v. Warren County Area Plan Comm’n,

244 F.3d 601 (7th Cir. 2001) ....................................18

Light v. SWRCB,

226 Cal.App.4th 1463 (2014) ..................................28

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) .................................................22

xiv

TABLE OF AUTHORITIES – Continued

Page

Londoner v. City and County of Denver,

210 U.S. 373 (1908) .................................................17

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992)................................................26

Mathews v. Eldridge,

424 U.S. 319 (1976) .................................................20

Mineral County v. Lyon County,

136 Nev. Adv. Op. 58, No. 75917,

WL 5849506136 (2020) ...........................................35

Nasierowski v. City of Sterling Heights,

949 F.2d 890 (6th Cir. 1991) ....................................18

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) ............................................. 5, 23

People ex rel. SWRCB v. Alfred F. Forni, et al.,

54 Cal.App.3d 743 (1976) ........................................28

Philly’s v. Byrne,

732 F.2d 87 (7th Cir. 1984) .................................. 4, 19

Stanford Vina Ranch Irrigation

Company v. State,

50 Cal.App.5th 976 (2020) ........................................1

Stop the Beach Renourishment, Inc. v.

Florida Dept. of Environmental Protection,

560 U.S. 702 (2010) ........................................... 22, 26

Summa Corp. v. California

State Lands Comm’n,

466 U.S. 198 (1984) ................................... 5, 6, 12, 33

Tulare Dist. v. Lindays-Strathmore Dist.,

3 Cal.2d 489 (1935) .................................................28

xv

TABLE OF AUTHORITIES – Continued

Page

Tulare Lake Water Storage Dist. v. U.S.,

49 Fed.Cl. 313 (2001) ..............................................25

U.S. v. Gerlach Live Stock Co.,

339 U.S. 725 (1950) ......................................... passim

United States v. James

Daniel Good Real Property,

510 U.S. 43 (1993) ...................................................20

United States v. SWRCB,

182 Cal.App.3d 82 (1986) ..........................................7

Webb’s Fabulous Pharmacies v. Beckwith,

449 U.S. 155 (1980) ............................................. 5, 22

Youakim v. McDonald,

71 F.3d 1274 (7th Cir. 1995) ....................................21

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) .................................................31

CONSTITUTIONAL PROVISIONS

Cal. Const. Article X, sec. 2 ................................. passim

U.S. Const., Amdt. V ........................................... passim

U.S. Const., Amdt. XIV ....................................... 1, 2, 23

STATUTES

28 U.S.C. § 1257(a) ........................................................1

xvi

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

1 W. Hutchins, Water Rights Laws in the Nineteen

Western States (1971) ...............................................7

Cal. Water Code sec. 106 ............................................28

REGULATIONS

California Code of Regulations,

Title 23, Division 3, Chapter 2,

Article 24, sections 877-879.2 ...................................3

1

PETITION FOR A WRIT OF CERTIORARI

Stanford Vina respectfully requests that this Court

issue a writ of certiorari to review the judgment of the

Court of Appeal of the State of California, Third Appellate District.

---------------------------------♦---------------------------------

OPINIONS BELOW

The Opinion of the Third District Court of Appeal

is reported at Stanford Vina Ranch Irrigation Company v. State, 50 Cal.App.5th 976 (2020), and is attached here as Appendix (App.) A. An order modifying

the decision is attached as App. B. The denial of the

Petition for Rehearing to the Third District Court of

Appeal is attached as App. C. The opinion of the Trial

Court is unpublished. It is attached here as App. D. The

Judgment entered by the Trial Court is attached as

App. E.

---------------------------------♦---------------------------------

JURISDICTION

This Court has jurisdiction under the Fifth and

Fourteenth Amendments to the United States Constitution. The California Supreme Court denied the petition for review on September 23, 2020. The denial is

attached here as App. F. This court has jurisdiction under 28 U.S.C. § 1257(a).

---------------------------------♦---------------------------------

2

CONSTITUTIONAL AND

REGULATORY PROVISIONS AT ISSUE

The U.S. Constitution provides in pertinent part:

No person shall . . . be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

U.S. Const., Amend. V.

. . . nor shall any State deprive any person of

life, liberty, or property, without due process of

law . . .

U.S. Const., Amend. XIV.

California Constitution Article X, section 2 is set

forth in full in App. G. It provides in part:

The right to water or to the use or flow of water in or from any natural stream or water

course in this State is and shall be limited to

such water as shall be reasonably required for

the beneficial use to be served, and such right

does not and shall not extend to the waste or

unreasonable use or unreasonable method of

use or unreasonable method of diversion of

water . . . nothing herein contained shall be

construed as depriving any riparian owner of

the reasonable use of water of the stream to

which the owner’s land is riparian under reasonable methods of diversion and use, or as

depriving any appropriator of water to which

the appropriator is lawfully entitled . . .

Cal. Const. Art. X, sec. 2.

3

California Code of Regulations, Title 23, Division

3, Chapter 2, Article 24, sections 877-879.2, and the

State’s resolutions adopting them in 2014 and 2015 are

attached as App. H and App. I. The 2014 and 2015 Curtailment Orders issued pursuant to those regulations

are attached as App. J, K, L, and M.

---------------------------------♦---------------------------------

INTRODUCTION

This case compromises constitutional protection of

property in California. By styling adjudicatory actions

as quasi-legislative regulations that target specific individuals and entities on three creeks in rural Northern California, and by eliminating their property

interests in the regulation, the State of California bypassed constitutional rights to compensation and due

process when taking property. This bill of attainder

type of practice vests the State with virtually limitless

power to reclassify and confiscate real property without compensation or a due process hearing.

This Court should impose boundaries on the use

of quasi-legislative regulations to recharacterize and

take property from small groups without due process

or compensation. This case presents a clean vehicle for

doing so, as there is no meaningful dispute of the facts,

and the State even said that it “styled” the actions as

quasi-legislative regulations to avoid “cumbersome”

constitutional rights when denying requests for crossexamination and an evidentiary hearing. App. G, H. As

the trial court put it, this case “exploits” the distinction

4

between quasi-adjudicatory and quasi-legislative. App.

R.

Lower courts have acknowledged the uncertainty

surrounding the distinction of adjudicatory and legislative actions, and they have diverged on whether due

process rights can apply to legislative rules or regulations that target a small group, or a single person, to

eliminate their property interest. See Philly’s v. Byrne,

732 F.2d 87, 93 (7th Cir. 1984) (“We . . . do not hold that

there is never any requirement of due process in the

legislative process . . . ”); Dibble v. Quinn, 793 F.3d 803,

814 (7th Cir. 2015) (“no case clearly establish[es] that

motive is relevant to determining whether a validly enacted statutory amendment eliminating an employee’s

property interest complies with procedural due process

requirements.”); 75 Acres, LLC v. Miami-Dade County,

Fla., 338 F.3d 1288, 1296 (11th Cir. 2003) (Stating 11th

Circuit has no articulated test for the legislative – adjudicative distinction, but the 2nd Circuit focuses on

the function performed and the 7th Circuit focuses on

an action’s generality and prospectivity).

Other circuits have also recognized that constitutional protection of property will be meaningless if legislative processes can be used to eliminate property

interests without due process. Club Misty, Inc. v. Lask,

208 F.3d 615, 619 (7th Cir. 2000) (Warning against use

of legislative processes to eliminate property rights

without due process). And this Court has prohibited

government from taking private property by simply reclassifying it as public property through legislative or

5

adjudicative actions. Webb’s Fabulous Pharmacies v.

Beckwith, 449 U.S. 155, 164 (1980).

In a period of societal instability, pandemic, deficits, and political paralysis, government’s use of labels

such as “regulation” and “emergency” to avoid Constitutional compensation and hearing rights must be restricted.

This Court also has a history of assessing the constitutionality of California’s efforts to control private

property, and the inventive nature of the State’s actions here warrants review. Nollan v. California Coastal

Comm’n, 483 U.S. 825 (1987); Summa Corp. v. California State Lands Comm’n, 466 U.S. 198 (1984); First

English Evangelical Lutheran Church of Glendale v.

Los Angeles, 482 U.S. 304 (1987).

This Court should grant review to address the following issues:

First, this Court should determine how procedural

due process and compensation rights apply to government actions styled as quasi-legislative regulations

that eliminate the property interest of a small group of

targeted individuals to take their property for a public

purpose.

Second, this Court should resolve the conflict between this case and this Court’s opinions in Dugan v.

Rank, 372 U.S. 609, 623-626 (1963) (“Dugan”) and U.S.

v. Gerlach Live Stock Co., 339 U.S. 725, 751-755 (1950)

(“Gerlach”), holding that governmental interference

with California water rights is a compensable physical

taking of property.

6

Third, this Court should address whether assertions of emergency authority authorize government to

postpone compliance with constitutional hearing and

compensation rights, or if they excuse them altogether.

Fourth, this Court should review this case to resolve the conflict with Summa Corp. v. California State

Lands Comm’n, 466 U.S. 198 (1984) (“Summa Corp.”).

which prohibits assertions of the public trust doctrine

to patented Mexican Land Grant lands, and whether

compensation or balancing is required when public

trust assertions take or damage property, including judicially adjudicated water rights.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

A. Background.

This case arises from actions of the State of California to prohibit a small group of water right holders

from diverting and using their water in rural Northern

California. Petitioner Stanford Vina and its landowners have vested real property rights to their adjudicated riparian and pre-1914 water rights and water on

Deer Creek in rural Tehama County, California. App.

D at 53-54. Their utilization of the waters of Deer

Creek for irrigation has continually existed since the

mid-1800s, and their water rights were adjudicated by

the Tehama County Superior Court on November 27,

1923. (Ibid.) The adjudication resulted in a court decree that Stanford Vina is entitled to 66% of Deer

Creek flows. Ibid.; App. J at 159. Deer Creek and the

7

lands of Petitioner are patented Mexican Land Grant

lands. App. D at 53. Stanford Vina lands range from

irrigated pasture and walnut orchards, to a Catholic

monastery that operates and is partially sustained by

its own vineyard.

California water rights are real property rights

pursuant to 160 years of California and Federal case

law. Gerlach, 339 U.S. at 727-730, 752-756; Dugan, 372

U.S. at 623-626; 1 W. Hutchins, Water Rights Laws in

the Nineteen Western States (1971) at 143; United

States v. SWRCB, 182 Cal.App.3d 82, 101 (1986). Article X, Section 2 of the California Constitution limits

the use of water to what is reasonably required for the

beneficial use served, and prohibits the waste and unreasonable use of water. Cal. Const. Article X, section

2; App. G.

Without due process or compensation, and after a

five minute public comment period at “workshops” in

2014 and 2015, the California State Water Resources

Control Board (“SWRCB” or “State”), prohibited Stanford Vina and its landowners from utilizing their adjudicated property right to divert and use their Deer

Creek water to irrigate as they had done without interruption for over 100 years. App. D at 51-54, 58-63, 88.

The State said it was an emergency and the water was

needed for in-stream public trust fishery flows. App. H,

I. Stanford Vina landowners were left without irrigation water to sustain their crops and livestock during

the critical irrigation periods of 2014 and 2015. See

App. D at 52, 63, 70-80. Crops were stressed, herds

were culled, and lands were fallowed.

8

B. The Emergency Regulations and Curtailment

Orders.

The State acted by adopting and implementing

emergency regulations (“regulations”) stating that all

diversions and uses of water that conflicted with specific minimum in-stream public trust fish flows on Deer,

Mill, and Antelope Creeks in rural Tehama County

California were “unreasonable” under Article X, section 2, and were required to cease, and which directed

the issuance of curtailment orders (“orders”) the day

before the minimum flow requirements of the regulations were in effect. App. A at 11-17; App. D at 52, 5863; App. H, I. The requirements applied to twenty-nine

(29) individual water right holders on Deer, Mill, and

Antelope Creeks, seventeen (17) of whom are on Deer

Creek, and who were listed by name. Apps. J at 166167; K at 173-174; L at 181-182; M at 190-191; App. S.

The State adopted the regulations on May 21, 2014,

and again one year later on March 17, 2015, and the

State issued orders for Deer Creek water right holders

on June 5, 2014; October 14, 2014; April 17, 2015; and

October 22, 2015. App. D at 60-63; App. H, I, J, K, L, M.

The 2014 regulations and orders were almost identical

to the 2015 versions. Ibid. App. D at 62. The regulations were adopted in 2014 and 2015 with five and

seven business days’ notice to water right holders. App.

D at 52, 60-62, 88.

The regulations themselves determined that Stanford Vina’s water would be taken to meet the in-stream

fishery flow requirements; the orders only notified water right holders when the requirements were in effect.

9

App. A at 25-26; App. D at 79. The in-stream flow requirements of the regulations were first implemented

and enforced fourteen (14) days after the regulations

were adopted in 2014, and they were again adopted

and implemented one year later in 2015. App. H, J. The

regulations and orders provided for penalties of $1,000

per-day and $2,500 per-acre foot for violations of the

prohibition on water use. see App. H at 140, § 879.2;

App. J at 165, ¶ 6.

No California water right holders except those on

Deer, Mill, and Antelope Creeks were subject to the

State’s actions, or any equivalent measures.

C. Evidentiary Hearing and Compensation Requests.

Stanford Vina’s requests for a due process hearing

and compensation in 2014 and 2015 were not granted.

App. D at 79-80. At the “workshops” where the State’s

actions were adopted, State and Federal employees were

allowed to present at length on the purported merits

and necessity of the State’s actions, but water right

holders were not allowed to participate with crossexamination or testimony. In refusing cross-examination

and testimony requests at the 2014 workshop, counsel

for the State declared:

This is an exigent circumstance where, in

order to provide a timely and appropriate

mechanism, the board is – or board staff is

proposing that the board proceed through this

quasi-legislative process.

10

this is not a quasi-judicial proceeding. We’re

styling this as a quasi-legislative proceeding.

That means that the board has considerable

flexibility in terms of how it structures this.

As part of that quasi-legislative process, there

is not an opportunity for cross-examination.

App. N [Emphasis Added].

State staff also declared that “enforcement in the

absence of a regulation is cumbersome . . . ” because

“water right holders may request a full evidentiary

hearing. . . .” App. N [Emphasis Added].

The resolution adopting the regulations stated,

“this approach is not the Board’s preferred alternative

to identify, balance, and implement in-stream flow requirements. The Board reaffirms its preference for

undertaking adjudicative water right proceedings to

assign responsibility for meeting in-stream flows.” App.

H at 125-126 ¶ 18.

D. Alternative Supplies and Unfinished Projects.

The State said its actions were necessary due to

the “lack of developed alternative water supplies” and

that “all water users should develop alternative water

supplies” at their own cost because similar minimum

in-stream flow requirements would be imposed in future

years. App. O. Yet for decades prior to 2014 and the declaration of an “emergency,” government agencies studied and planned an in-stream fishery water flow project

on Deer Creek in which private landowners were paid

11

by government to enhance in-stream flows by pumping

groundwater, with correlating projects on Mill and Antelope Creeks. App. T, V, W. Government did not finance

or complete the projects, and when drought struck,

those same agencies asked the State for the in-stream

flow requirements as a substitute for the unfinished

public projects. App. D at 54-57; App. H at 121, ¶ 5; I at

142 ¶ 6; App. A at 11-12, fn. 6; App. X, Y.

E. Stanford Vina’s State Court Lawsuit.

Stanford Vina’s lawsuit sought damages for inverse condemnation; a declaratory judgment that the

State took Stanford Vina’s property without due process or compensation; and a writ of mandate directing

the State to set aside the emergency regulations and

curtailment orders and enjoin the State from taking

similar actions without compliance with due process

and compensation requirements. App. D at 63-64, 66,

68-69. Stanford Vina argued that the State’s actions

constituted a physical taking of property under the

California and United States Constitutions, and that

the State violated due process by refusing to hold an

evidentiary hearing. Stanford Vina also argued the

State’s actions were quasi-adjudicatory; violated Article X, section 2 of the California Constitution; were not

lawful emergency actions; violated the Deer Creek adjudication, and violated the public trust doctrine because Stanford Vina’s lands and Deer Creek are former

Mexican Land Grant lands, and the public trust doctrine was asserted without balancing or compensation.

App. D.

12

F. The Trial Court’s Decision.

The Sacramento Superior Court (“Trial Court”)

denied Stanford Vina’s claims. The Court held that the

regulations were quasi-legislative, therefore due process rights were inapplicable to the reasonableness determination or its implementation, and because there

is no property right in an unreasonable use or diversion of water, the due process and inverse condemnation claims failed. App. D at 68-70, 76-82, 87; App. E;

App. A at 17-20. The Trial Court stated that findings

as to whether Stanford Vina possessed a real property

interest applied to both the taking and due process

claims. App. D at 68. The Trial Court also held that the

State had not violated Article X, section 2 or the public

trust doctrine; that Summa Corp. was inapplicable because the State asserted the public trust for fish, rather than the title to lands, and that the State’s action

were neither unlawful emergency measures or in violation of the water rights adjudication. App. D at 8892, 98-99, 106-112.

However, the Trial Court found:

. . . the regulations and Curtailment Orders

should be evaluated collectively, as part of a

single consolidated proceeding. The regulations themselves determined that the diversions would be curtailed to meet minimum

flow requirements. [citations omitted] The

Curtailment Orders simply notified affected

water right holders that the regulatory provisions were put into effect.

App. D at 79.

13

The Trial Court also acknowledged, “the regulations could be characterized as quasi-adjudicatory because they applied general principles of ‘reasonable

use’ and ‘public trust’ to specific waterways, and established specific minimum flow requirements for a relatively small number of water right holders.” App. D at

81-82.

G. The Opinion of the Third District Court of

Appeal of California and the Petition to the

California Supreme Court.

Stanford Vina appealed and presented the same

claims and arguments to the Court of Appeal of the

State of California, Third Appellate District. App. A.

The Court of Appeal held that the State did not violate

constitutional due process hearing or compensation

rights, or otherwise act unlawfully in 2014 or 2015.

App. A at 3-4, 25-26, 28-29, 38-39, 42-46. The Court of

Appeal reasoned there is no property right in the unreasonable use and diversion of water, and the State

determined Stanford Vina’s use and diversion of water

was unreasonable in the regulations. The decision concluded the regulations were quasi-legislative because

they defined diversions under “certain emergency circumstances” to be per-se unreasonable, and because

they “formulated a rule to be applied to future cases. . . .”

App. A at 26, 38-39. The decision acknowledged that

the application and implementation of the regulations

through the curtailment orders was adjudicatory, but

held that constitutional due process and compensation

rights were inapplicable because Stanford Vina’s use

14

and diversion of water was declared unreasonable in

the regulations, and there is no property right in an

unreasonable use and diversion of water, to trigger

constitutional due process hearing or compensation

rights. App. A at 2-4, 38-39, 42-45. The decision acknowledged that the regulations themselves determined the flows would be taken, and the regulations

implemented the in-stream flow requirements. App. A

at 11, 16, 19, 25. Like the Trial Court, the Court of

Appeal acknowledged “Stanford Vina’s previouslyadjudicated right” to approximately 66% of the flow of

Deer Creek, but held the State acted lawfully notwithstanding the court adjudication. App. A at 45; App. D

at 106-107.

Stanford Vina filed a Petition for Rehearing on

June 29, 2020 which was denied on July 6, 2020. App.

C. Stanford Vina then filed a Petition for Review to the

California Supreme Court on July 21, 2020, again arguing that the State’s actions violated due process and

constituted a taking of real property without compensation under the California and United States Constitutions. Stanford Vina also asserted that the actions

violated Article X, section 2 and public trust authorities, were not lawful emergency actions, and were

barred by the Deer Creek adjudication. The California

Supreme Court denied review on September 23, 2020.

App. F.

---------------------------------♦---------------------------------

15

REASONS FOR GRANTING THE PETITION

I.

The Court Should Grant the Petition to Address Whether Due Process and Compensation Is Required for Actions Styled as QuasiLegislative Rules or Regulations that Target

Small Groups or Specific Individuals and

Take Their Real Property.

This case raises important questions of whether

constitutional rights to due process and compensation

apply when government utilizes legislative rules or

regulations to take the property of specific individuals.

Although the regulations applied the standard of “unreasonable” to the property rights of twenty nine (29)

rural water right holders on three creeks to physically

take their water, constitutional rights to due process

and compensation were excused because the regulations

declared their diversions to be “unreasonable,” and because there is no property right in an unreasonable use

or diversion of water, due process and compensation

rights were deemed inapplicable to the reasonableness

determination or its implementation to physically take

the water. App. A at 3-4, 25-27, 38-39, 41-45; App. D at

76, 80-82, 87.

An individual never gets a due process hearing or

compensation under the reasoning of this case. Government may draft quasi-legislative rules or regulations declaring a specific individual’s use of property to

be a nuisance under specific conditions, or their use of

water to be unreasonable, and require that they cease

their use of property when the conditions occur. When

the regulations are implemented, there is no right to

16

due process or compensation because there is no property right in a nuisance or an unreasonable use of

water. Such constitutional circularity warrants review. The system invites government to circumvent

constitutional due process hearing and compensation

requirements by styling adjudicatory actions as legislative rule or regulations. The State of California even

stated that it “styled” its actions as quasi-legislative

regulations to avoid “cumbersome” evidentiary hearing requirements here. App. N.

A. The Court Should Reconcile this Case

with the Distinction of Adjudicatory and

Legislative Actions and Address How

Due Process Rights Apply When Legislative Actions Target the Property Rights

of a Small Group or a Single Individual.

This Court should reconcile this case with the

framework for determining whether due process applies to an action of government, or to revisit the

framework in its entirety. Due process rights will be of

little value if government may craft quasi-legislative

regulations to circumvent them when invading the

property rights of targeted individuals.

In Bi-Metallic Investment. Co. v. State Board of

Equalization, 239 U.S. 441 (1915), Justice Holmes reasoned that due process did not apply to government

actions generally applicable to the voting population

of an electoral jurisdiction because all citizens “stand

alike” and are “equally concerned” and therefore

17

possess meaningful electoral recourse. (Id. at 445.)

Justice Holmes distinguished the legislative measure

in Bi-Metallic from the adjudicative action in Londoner

v. City and County of Denver, 210 U.S. 373 (1908) (“BiMetallic”) which impacted a “relatively small number

of persons . . . who were exceptionally affected . . . ”

and for which due process was required because they

lacked meaningful electoral recourse. Bi-Metallic, 239

U.S. at 445-446. The Bi-Metallic framework for applying procedural due process has been adopted by California and other jurisdictions, and California has

adhered to a formalistic approach in which due process

only applies to adjudicatory actions, not legislative

ones. Horn v. County of Ventura, 24 Cal.3d 605, 612

(1979) (“only those governmental decisions which are

adjudicative in nature are subject to procedural due

process principles. Legislative action is not burdened

by such requirements.”).

This case turns the Bi-Metallic framework on

its head, or as the Trial Court observed, “exploits” it.

App. R. While the State’s actions were labeled as quasilegislative regulations, the targeted Tehama County

water right holders were “exceptionally affected” and

lack the meaningful electoral recourse dispositive in

Bi-Metallic. The State did not adopt a general regulation applicable to all California water right holders on

all California watersheds, or to all locations where the

fish species migrate. Nor did it adopt a general standard to be applied in future proceedings – there was no

“future proceeding.” Each lower court correctly recognized that the regulations themselves determined that

18

the water of the targeted water right holders would be

taken – the orders simply notified water right holders

when the regulatory provisions were in effect. App. D

at 79; App. A at 11, 16, 19. And the regulations were

implemented to physically take Stanford Vina’s water

a mere fourteen (14) days after they were first adopted

in 2014. App. H; App. J.

B. There is Conflict in the Lower Courts on

the Application of Due Process to Legislative Actions that Target Small Groups

or Specific Individuals.

Other lower courts have rejected the formalist approach to the distinction of adjudicatory and legislative of California in this case. Nasierowski v. City of

Sterling Heights, 949 F.2d 890, 896 (6th Cir. 1991)

(“Government determinations of a general nature . . .

do not give rise to a due process right. . . . But when a

relatively small number of persons is affected on individual grounds, the right to a hearing is triggered.”);

L C & S, Inc. v. Warren County Area Plan Comm’n, 244

F.3d 601, 603 (7th Cir. 2001) (“the line between legislation and adjudication is not always easy to draw, especially when the extent of the legislative domain is

extremely limited . . . ”); Harris v. County of Riverside,

904 F.2d 497, 501-502 (9th Cir. 1990) (“In determining

when the dictates of due process apply . . . we find little

guidance in formalistic distinctions between ‘legislative’ and ‘adjudicatory’ or ‘administrative’ government

actions.”).

19

Moreover, some lower courts have held that due

process can be required for legislative actions that affect a small group, or a single individual. Club Misty,

Inc. v. Laski, 208 F.3d 615 (7th Cir. 2000) (Due process

required for legislative action that deprived liquor license holders of property right in license); Dibble v.

Quinn, 793 F.3d 803, 814 (7th Cir. 2015) (“We can imagine situations where a public employee is terminated under the ruse of a statutory amendment

designed to avoid the protections of the Due Process

Clause.”); Philly’s v. Byrne, 732 F.2d 87, 93 (7th Cir.

1984) (Stating due process may be required if legislation affects “only a tiny class of people. . . .”); see Horn

v. County of Ventura, 24 Cal.3d 605, 612 (1979), J. Newman, concurrence. (Stating due process should not be

limited to adjudicatory actions).

These lower court decisions, and their conflict with

this case, affirm the uncertainty surrounding the application of due process to actions that are styled as

legislative, but which target small groups and invade

their property rights. Review should be granted to reconcile this case with the framework for distinguishing

adjudicative and legislative actions, and to clarify

when due process is required.

20

C. This Case Conflicts with Decisions Prohibiting Government from Interfering

with Property Rights Without Procedural Due Process.

This case undermines this Court’s decisions requiring a due process hearing for government actions

that interfere with property interests. Mathews v. Eldridge, 424 U.S. 319 (1976); United States v. James

Daniel Good Real Property, 510 U.S. 43 (1993); Connecticut v. Doehr, 501 U.S. 1 (1991). Due process requirements do not simply disappear when government

applies a label of “nuisance” or “unreasonable” to real

property, or whatever other limitation is asserted, and

notwithstanding that such conditions are never established in an evidentiary hearing. Yet that is the holding

and effect of this case. This case absolves the State

of California from due process requirements if quasilegislative regulations are styled to eliminate property

interests when taking property. Judge Posner has

warned against this practice in the Seventh Circuit,

but this case endorses it for California. Club Misty,

Inc. v. Laski, 208 F.3d at 619 (Warning against use

of legislative processes to eliminate property rights

without due process). The Court should clarify that

this is wrong, and thereby resolve the conflict about

whether due process may be avoided by styling of

quasi-legislative rules or regulations to eliminate property interests when taking property.

21

D. The Court Should Grant the Petition to

Resolve the Conflict Between this Case

and Other Circuits that Have Prohibited

States from Defending Against Due Process Claims by Asserting the Property

Interest Was Eliminated by the Challenged Action.

Other circuits have prohibited States from defending due process claims by arguing that the property interest was eliminated by the very state action that is

challenged. Youakim v. McDonald, 71 F.3d 1274, 1289

(7th Cir. 1995) (“A state . . . may not defend against a

due process claim . . . by arguing that the plaintiff now

lacks a protectable property interest by virtue of the

very state action the plaintiff has challenged.”); Bennett v. Tucker, 827 F.2d 63, 73 (7th Cir. 1987) (“a state

may not deprive an individual of his or her property

interest without due process, and then defend against

a due process claim by asserting that the individual no

longer has a property interest.”). This case endorses

the opposite standard for California. The State argued,

and the lower courts agreed, that because Stanford

Vina’s use and diversion of water was declared unreasonable in the regulations, and because there is no

property right in an unreasonable use or diversion of

water, due process and compensation rights do not apply to the reasonableness determination or its implementation to physically take the water. App. A at 2-3,

19-20, 25-26, 38-39, 42-45; App. D at 68, 78-80, 82, 87;

App. E. Review should be granted to resolve this constitutional conflict between California and other jurisdictions.

22

E. This Case Conflicts with Decisions Prohibiting Government from Reclassifying Private Property as Public Property

Without Compensation and Requiring

Compensation for Both Legislative and

Adjudicatory Actions that Take Property.

This case undermines decisions of this Court requiring compensation for the taking of property irrespective of whether government acts in a legislative or

adjudicatory capacity. First English Evangelical Lutheran Church of Glendale v. Los Angeles, 482 U.S. 304

(1987) (General regulation deemed physical taking);

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005);

Stop the Beach Renourishment, Inc. v. Florida Dept.

of Environmental Protection, 560 U.S. 702, 713-714

(2010) (“Stop the Beach”) (“The Takings Clause . . . is

concerned simply with the act, and not with the governmental actor . . . ”). This case undermines these decisions by authorizing government to make findings in

quasi-legislative regulations that eliminate the property interest of specific individuals, and to then avoid

compensation when physically confiscating their property because no property interest exists. This cannot be

the law. This Court has prohibited States from converting private property without compensation by simply

reclassifying it as public property. Stop the Beach, 560

U.S. at 713, 726-728 (“States effect a taking if they recharacterize as public property what was previously

private property.”); Webb’s Fabulous Pharmacies v.

Beckwith, 449 U.S. 155 at 164 (1980) (Taking Clause prohibits Legislatures and Courts from taking property

23

“simply by recharacterizing” it as public); Nollan v.

California Coastal Comm’n, 483 U.S. 825, 831-833

(1987) (Holding California Constitutional prohibition

on obstructions to navigable waters did not excuse

compensation requirements). While California water

rights, like all property rights, are subject to limitations, these conditions cannot serve as a pretext for

uncompensated physical taking of property, even if asserted in quasi-legislative rules or regulations to eliminate a property interest. Compensation is required

even if the State's actions were quasi-legislative.

II.

This Court Should Grant the Petition to

Resolve the Conflict Between this Case and

the Decisions by this Court and the Federal

Court of Claims Requiring Compensation

for Government Interference with California Water Rights.

The interference with Stanford Vina’s use and diversion of water pursuant to its adjudicated water

rights in this case constitutes a compensable physical

taking of private property in violation of the Fifth

Amendment of the United States Constitution, as

incorporated against the States by the Fourteenth

Amendment. The State took Stanford Vina’s water for

a public purpose, and in doing so compelled a small

number of rural water right holders to alone bear the

cost of a public fishery use and project. Armstrong v.

United States, 364 U.S. 40, 49 (1960) (Constitution prevents requiring citizens to give up property for costs of

achieving goals properly borne by public as a whole).

24

A. Government Interference with a California Water Right is a Physical Taking of

Property Under Decisions of This Court

and the Court of Claims.

This case undermines this Court’s jurisprudence

establishing that interference with the use or diversion of water pursuant to a California water right constitutes a compensable physical taking of property.

Dugan, 372 U.S. at 623-626 (Government interference

with California water rights treated as a physical taking requiring compensation); Gerlach, 399 U.S. at 754

(Government interference with California water rights

utilized for irrigation analyzed as a physical taking of

private property requiring compensation); see also International Paper v. United States, 282 U.S. 399, 407

(1931).

The Federal Court of Claims has also established

that fishery or environmental restrictions on use of water that interfere with California water rights and diversions, even if temporary, constitute compensable

physical takings of private property for a public purpose and use. Casitas Mun. Water Dist. v. United

States, 543 F.3d 1276, 1296 (2008 Fed. Cl.) (“Casitas 1”)

(“Casitas will never get that water back . . . the government action was a physical diversion for a public use –

the protection of an endangered species . . . ”); Casitas

Mun. Water Dist. v. U.S., 556 F.3d 1329 (2009 Fed.

Cl.) (“Casitas 2”) (Upholding physical taking finding

for fishery restrictions on use of California water

right); Casitas Mun. Water Dist. v. United States, 102

Fed.Cl. 443, 458-461 (2011 Fed. Cl.) (“Casitas 3”) (Fifth

25

Amendment compensation requirements apply to government interference with California water rights notwithstanding harm to fish); Tulare Lake Water Storage

Dist. v. U.S., 49 Fed.Cl. 313, 318-321 (2001) (Endangered species restrictions that interfered with California water supply constituted physical taking).

Moreover, in Gerlach this Court held that Article

X, section 2 does not authorize the taking of water

rights without just compensation. Gerlach, 399 U.S.

at 751-754. This Court held that Article X, section 2’s

waste and unreasonable use standard had not “destroyed and confiscated a recognized and adjudicated

private property right” in California water rights, and

instead Article X, section 2 was the result of a “studied

purposes to preserve” the rights of water right holders.

Id. at 751, 753. This Court reasoned that alternative

proposals to “revoke or nullify all common-law protection to riparian rights” had been rejected as “confiscatory.” Id. at 751, 753 (“Public interest requires

appropriation; it does not require expropriation.”). The

Court of Claims in Casitas 3 also affirmed the Fifth

Amendment takings protections for water rights notwithstanding Article X, section 2’s reasonableness condition and the public trust doctrine. Casitas 3, 102

Fed.Cl. at 458-460.

These Federal takings cases are nullified by this

case. Like the fishery restrictions and government interference with water rights in Casitas 1-3, Tulare,

Dugan and Gerlach, here the State of California physically and permanently confiscated Stanford Vina’s

water for a public purpose, project, and use – fishery

26

interests – and in doing so committed a physical taking

of Stanford Vina’s real property in 2014 and 2015. This

case authorizes government to utilize labels of unreasonable, public trust, emergency, and regulation to

take water from California water right holders for a

public purpose and project without compensation. This

Court should grant review to reconcile this case with

Federal decisions establishing that government interference with a California water rights is a compensable

physical taking of property.

B. The Assertions of California’s “Unreasonable” Standard in this Case is Unprecedented.

In analyzing whether a State has reclassified

property as public, “[w]hat counts is not whether there

is precedent for the allegedly confiscatory decision, but

whether the property right alleged taken was established.” Stop the Beach, 560 U.S. at 726-728. It is beyond dispute that the real property right of Stanford

Vina in its adjudicated California water rights is established. Nevertheless, the injurious and confiscatory

nature of the application of Article X, section 2 here is

unprecedented – a SWRCB Member described the

State’s actions as a “backdoor” reconfiguration of California water law when voting on them. App. O. The actions were debased from background principles of

California water law. Lucas v. S.C. Coastal Council, 505

U.S. 1003, 1027, 1029 (1992).

Article X, section 2 is not confiscatory – it only limits the use and diversion of water to what is

27

“reasonably required for the beneficial use to be served

. . . ” so that “the water resources of the State be put to

beneficial use to the fullest extent of which they are

capable . . . ” Cal. Const. Art. X, sec. 2. It is intended to

maximize beneficial use of water through efficiency

and conservation when more efficient methods are

available, without injury to water right holders. Cal.

Const. Art. X, sec. 2 (“ . . . nothing herein contained

shall be construed as depriving any riparian owner of

the reasonable use of water . . . ”); Gerlach, 339 U.S. at

751-755. (Article X, section 2 is not “confiscatory” and

is the result of a “studied purposes to preserve” the

property right in water rights.); Gin S. Chow v. City of

Santa Barbara, 217 Cal. 673, 700, 706 (1933) (Upholding unreasonableness finding to maximize beneficial

use through storage when no injury to water right

holder). And “what is an unreasonable use is a judicial

question depending upon the facts in each case.” Id.

at 706.

Here, the State utilized a label of “unreasonable”

to take Stanford Vina’s irrigation water for an instream public use it preferred. This is unprecedented.

A specific use and diversion of water pursuant to a water right – a real property right – has never been declared unreasonable and ordered to cease without an

evidentiary hearing, or to take water from one beneficial use so that it can be allocated to another, subjectively preferred public purpose, without balancing the

competing beneficial uses, and with severe injury to a

water right holder.

Findings of unreasonableness under Article X, section 2 have historically been limited to valueless water

28

uses such as flooding to kill gophers, or non-agricultural

uses that interfere with water storage projects that

maximize beneficial use, and such findings were only

made after a trial. Tulare Dist. v. Lindsay-Strathmore

Dis., 3 Cal.2d 489, 568 (1935) (Flooding to kill gophers

unreasonable); Gin S. Chow, supra, 217 Cal. at 706;

Joslin v. Marin Municipal Water District, 67 Cal.2d

132, 135, 141 (1967). And irrigation is a preferred use

of water in California, second only to domestic use. Cal.

Water Code § 106.

While some California appellate courts have held

the State has authority to issue general policy statements of unreasonableness, analogous to negligent per

se, in response to facial challenges in Light v. SWRCB,

226 Cal.App.4th 1463 (2014); People ex rel. SWRCB v.

Alfred F. Forni, et al., 54 Cal.App.3d 743 (1976), and

Cal. Trout, Inc. v. SWRCB, 207 Cal.App.3d 585, 623625 (1989), these cases contain no discussion of how

constitutional hearing or compensation rights apply to

the State’s exercise of its authority, and this is the first

case in which Article X, section 2 has ever been implemented by a regulation to physically regulate an actual use and diversion of water.

C. The State’s Actions Were a Substitute

Public Project.

For decades government studied and even began

a public project on Deer Creek paying private landowners and water right holders to forgo their surface

water diversions and to pump groundwater to supplement in-stream fishery flows, with correlating projects

29

on Mill and Antelope Creeks. App. D at 54-57; App. TY. However, no project was completed or financed, and

when drought struck, the State took Stanford Vina’s

water to create the same in-stream fishery flows. The

State said its actions were necessary due to the lack of

developed alternative water supplies, and that water

users should develop alternative water supplies because similar requirements would be imposed in future

years. App. O. The State’s actions were a substitute

public project, funded by water right holders such as

Stanford Vina, and which violated the Court’s decisions in Gerlach, 399 U.S. at 754 and Dugan, 372 U.S.

at 623-626, and the decisions of the Federal Court of

Claims in Casitas 1-3.

D. Review Should be Granted to Address

the Policy Implications of Destabilizing

California’s Water Rights System by Excusing Compensation Requirements.

This court should grant the petition to address the

disorder that will occur if compensation requirements

are excused when government interferes with California water rights. This case authorizes whoever controls

State government at any given time to instantaneously

confiscate and reallocate water in accordance with

their personal preferences and aversions. As this Court

recognized in Arizona v. California, 460 U.S. 605, 620

(1983):

Certainty of rights is particularly important

with respect to water rights in the Western

United States. The development of that area

30

of the United States would not have been possible without adequate water supplies in an

otherwise water-scarce part of the country. [citations omitted]. The doctrine of prior appropriation, the prevailing law in the western

states, is itself largely a product of the compelling need for certainty in the holding and

use of water rights.

The Court of Claims has also warned of the chaos

that would result from eroding compensation protections for California water rights. Casitas 3, 102 Fed.Cl.

at 458-459 (Excusing compensation for water rights

when harm to fish is “ . . . a principle that would eviscerate private property interests and throw the water

rights regime into chaos.”).

III. This Court Should Grant the Petition to

Address How Assertions of Emergency Authority Alter Constitutional Rights to Compensation and Due Process.

The State’s reliance on emergency authority in

2014, and again in 2015, warrants review. Emergency

authority is invoked with increasing frequency in

America, and emergency conditions are seemingly

more complex and prevalent than before. There is also

a trend towards classifying general societal problems

as emergencies. This case is an opportunity for the

Court to address the relationship between constitutional rights and assertions of emergency authority.

Here, the State relied on the “cumbersome” nature

of due process hearing rights to justify the very

31

emergency measures bypassing them in 2014, and

again in 2015. App. N. Constitutional rights are inherently cumbersome, and this Court should address

whether constitutional hearing and compensation

rights can be excused because compliance is “cumbersome.” As Justice Jackson said, the forefathers “knew

what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also

suspect that they suspected that emergency powers

would tend to kindle emergencies.” Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J., concurring).

Review should also address whether a multi-year

emergency authorizes government to postpone compliance with constitutional rights to due process and

compensation, or excuses them altogether. It is indisputable that there was sufficient time for compliance

with these constitutional rights in the full year between adoption in 2014 and re-adoption in 2015. App.

D at 111, fn. 18 (“The court acknowledges that the

Board had sufficient time between the adoption of the

2014 and 2015 emergency regulations to address the

problem through nonemergency regulations.”). If a

multi-year emergency strips individuals of their constitutional rights, such authority should be analyzed.

Review should also be granted to address whether

emergency authority can excuse compensation or due

process rights when the emergency conditions are

caused by governments failure to take measures it

knows are needed to prevent foreseeable conditions.

32

Other lower courts have refused to absolve government of constitutional compensation requirements

when the government is responsible for creating the

emergency, or when the emergency conditions and resulting damages are foreseeable. In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, 146

Fed.Cl. 219, 264 (2019). Government’s failure to follow

through with the project it desired here – enhanced instream fishery flows – created the low-flow conditions

on Deer Creek in 2014 and 2015 – the very “emergency” that Stanford Vina’s water was taken to mitigate. App. D at 54-57; App. T-Y. Had government

followed through with its project, there would not have

been a basis for an emergency in 2014 and 2015. But

no project was completed, and when drought struck, as

it inevitably would, the government imposed the instream flow requirements here – a substitute project.

The State even justified its actions on the lack of an

adequate project, and expressly based them on the flow

objectives of the unfinished projects and past studies.

App. O, T-Y. This case eliminates the incentive for California to execute projects intended to prevent foreseeable adverse impacts when conditions such as drought

or flood conditions strike – a regular occurrence in

the Western United States. Review should address

whether constitutional protections of property may be

excused under such circumstances, and the broader relationship between assertions of emergency authority

and constitutional rights.

33

IV. This Court Should Grant Review to Resolve

the Conflict of this Case with Summa Corp.

v. California State Lands Comm’n, 466 U.S.

198 (1984) and to Address Whether the Public Trust Doctrine May be Asserted Without

Compensation or Balancing.

The State of California said that that it was declaring Stanford Vina’s use and diversion of water unreasonable so that additional water would be available

to serve public trust interests, and that it was applying

the public trust doctrine with Article X, section 2. App.

D at 92-93; App. Q; App. Y (“In this particular case, application of the reasonable use and public trust doctrines requires particularized consideration . . . ”).

This case raises an important question of whether

the State of California may assert the public trust doctrine to former Mexican Land Grant lands. Deer Creek

and Stanford Vina lands are patented Mexican Land

Grant lands. App. B at 2. This Court unequivocally

held in Summa Corp., supra, 466 U.S. 198 that California could not apply the public trust to former Mexican

Land Grant lands and waters. Summa Corp., supra, at

206-209. Review should be granted to address whether

the State is exempt from Summa Corp., as the trial

court held, when the State asserts a public trust interest relating to fish or waters that overlay or occupy

Mexican Land Grant lands subject to Summa Corp.

App. D at 27.

Moreover, review should be granted to reconcile

this case with decisions requiring compensation if

34

government damages private property when asserting

the public trust doctrine. In Illinois Central Railroad

Co. v. Illinois, 146 U.S. 387 (1892), this Court held if the

public trust doctrine was utilized to take back the use

of property, the State “ought to pay” for “expenses incurred in improvements made under such a grant”

when the State wishes to resume possession of the water or property interests under the public trust. Id. at

455; see also Casitas 3, supra, 102 Fed.Cl. 443, 457

(Holding public trust doctrine does not place California

water rights beyond the protection of the Fifth Amendment.).

Lower courts have also required balancing of public trust needs with competing interests, yet the State

openly admitted that no such balancing occurred here.

App. H at 125-126 ¶ 18 (“this approach is not the

Board’s preferred alternative to identify, balance, and

implement in-stream flow requirements.”); Casitas 3,

102 Fed.Cl. 443, 459 (“Implementation of the public

trust doctrine requires not only balancing of the various public trust values, but also weighing of those values against other, broader public interests.”). A mere

showing of public trust fishery interests “alone is not

enough” – the public trust doctrine does not “presume[ ] that the needs of fish trump all other uses . . .

what is in the best interest of a single public trust resource is not necessarily what is in the best interest of

the public as a whole.” Casitas 3, 102 Fed.Cl. 443, 461.

The Court should grant review to address whether

compensation is required when private property is

damaged to serve public trust interests, and whether

35

public trust interests must be balanced with competing interests.

California’s application of the public trust in this

case is also in stark contrast to neighboring Nevada

which recently established, “the public trust doctrine

does not permit reallocating water rights already adjudicated and settled under the doctrine of prior appropriation.” Mineral County v. Lyon County, 136 Nev. Adv.

Op. 58, No. 75917, WL 5849506136 (2020). Stanford

Vina’s adjudicated water rights were reallocated to

public trust interests by California after a five-minute

public comment period at a “workshop” in 2014 and

2015, and without an evidentiary hearing or compensation. The Court should grant review to clarify

whether the public trust doctrine may be applied to adjudicated water rights in the Western United States,

and if so, whether it may be applied without due process or compensation.

---------------------------------♦---------------------------------

CONCLUSION

The Court should grant the Petition for Writ of

Certiorari.

Dated: December 22, 2020 Respectfully submitted,

MINASIAN, MEITH, SOARES

SEXTON & COOPER, LLP

PAUL R. MINASIAN

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.