IID to seek alternatives on appeal

EL CENTRO — Following nearly two hours of discussion, the Imperial Irrigation District opted against the withdrawal of an appeal at the appellate court level following the repeal of the district’s Equitable Distribution Plan two weeks ago.

Instead, IID will seek to engage in discussions with Michael Abatti, a local farmer who initiated the legal challenge regarding the plan more than four years ago.

President of the Board Jim Hanks asked IID’s legal team to meet with the Abattis to explore options to come to an agreement before a decision is made by an appellate court.

Division 1 Director Juanita Salas asked to place the discussion regarding a possible withdrawal of the appeal on the agenda during the Feb. 7 meeting following the board’s vote to repeal the plan.

On Tuesday, following the discussion, Salas motioned to move forward with the withdrawal of the appeal on the ruling made by Judge Anderholt but her request failed to gain a second motion.

Hanks then directed IID’s staff to initiate talks with Abatti.

The repeal of the EDP followed a writ of mandate made by Imperial County Superior Court Judge L. Brooks Anderholt in August. The IID submitted an appeal a month after the decision was made in hopes of keeping the plan in place until the matter got resolved in the appellate court.

The intent of the EDP was to implement a system to cap the amount of water farmers within the IID’s service area could use per acre of land.

The program was put in place as a measure to resolve overruns the district had incurred and sought to remediate that by establishing a hybrid method which combined a straight-line component to set an allocation of 5.5 acre-feet of water per acre to all growers along with historical water use.

During the meeting, IID outside counsel Charles DuMars said the opinion made by Judge Anderholt in the case was a concern since it went beyond the plan itself and undermines the authority of the board of directors.

“His opinion says that the only option, the only basis in which this board can allocate water, is historical use,” DuMars said. “The decision of a Superior Court judge to mandate to take action and vote in a way that he considers appropriate violates the principle of separation of powers and emasculates, in my view, the ability of the board to do its job.”

He said the ruling makes it very difficult for the district to craft a replacement plan due to the judge’s ruling favoring historical use and eliminating the district’s ability to consider different options or components to develop a fair allocation plan for local farmers.

“Now we have an opinion from a judge who got way ahead of himself and said some language that is not helpful to the district and some of it not helpful to the Ag community,” DuMars said. “How do you move forward if the only solution you can vote for is one that the judge has preselected for you?”

He suggested the best course of action to take was to engage with Abatti to come up with a fair distribution plan that also includes the use of water for non-agricultural use, and which would benefit both growers who have conserved and are yet to conserve water.

If all the parties can reach an agreement, DuMars suggested both parties can withdraw the appeals at the appellate court and jointly agree to vacate Judge Anderholt’s decision.

General Manager Kevin Kelley also noted the decision handed by the Superior Court restricts the board’s ability to make water available for non-agricultural issues.

“One practical effect of this lower court decision as I understand is that in the future as long as that ruling is on the books, IID will not be able to enter into an industrial water supply contract for any new business without obtaining water through appropriate consideration from the ag community,” he said. “Your board’s long-standing role as the body responsible for allocating the resource among all uses … it’s eliminated simply by this decision.”

Some of the local growers such as Larry Cox said they were worried about the IID’s ability to unilaterally move water from agricultural use for industry.

Legal counsel for Abatti, Cheryl Orr, told the board that the Abattis are willing to engage in productive discussions to reach an agreement prior to a decision being handed down by the appellate court which could have an adverse impact on all parties.

“If you wish to sit down and mediate in good faith with the Abattis, who always wanted to talk, settle or mediate in good faith, you can do so,” Orr said.

“They want the board to work with the Abattis and come up with a reasonable solution that protects Ag’s interest in the water in this community and doesn’t give the board complete authority to take that water and give it to somebody else or allocate it to a different property that has never had a water right or never used a water right. That is what the Abattis’ case is about.”

Pauline McConnell also urged the board to engage with the Abattis in order to reach an agreement locally rather than a court having the final word on the matter.

The three major agricultural groups of the Valley, including the Imperial Valley Vegetable Growers Association, Imperial County Farm Bureau and Imperial

Now we have an opinion from a judge who got way ahead of himself and said some language that is not helpful to the district and some of it not helpful to the Ag community,” Charles DuMars, IID outside counsel

Valley Water, submitted a letter to the IID board asking them to withdraw the appeal and “work with agricultural users and others on a fair and equitable apportionment plan that has the vast majority of water users within the district.”

Following the lengthy discussion, Salas’ motion to withdraw the appeal failed, and Hanks gave direction to legal staff to reach out to the Abattis to sort options in hopes of reaching an agreement that would enable both parties to withdraw their respective appeals.

Director Bruce Kuhn, who’s a longtime friend of Abatti, recused himself from the discussion.