Petition for Writ of Certiorari — Stanford Vina Ranch Irrigation Company, Petitioner v. California, et al.
Supreme Court briefDec 22, 2020
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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.