IID will prevail against a takeover of its water authority
Sometimes certain events command special attention, and for us right now in the Imperial Valley, it’s the court case going on between the Imperial Irrigation District and local farmer Mike Abatti over who controls water.
Abatti sued the IID over its plan to distribute water from the Colorado River, claiming that it was unfair to farmers. Judge Brooks Anderholt not only agreed, he ruled that the IID didn’t even have the right to decide how water should be distributed. This is the most important legal case for the Imperial Valley since the Quantification Settlement Agreement of 2003, and unless it is overturned, it could create chaos across the state and the Colorado River basin.
What was Anderholt’s reasoning? Anderholt cited a footnote in a famous court case (Bryant v. Yellen) which stated that the right to water was “appurtenant to the land.” From this Anderholt determined farmers hold the actual right to the water and not the IID. This means that, according to Anderholt, IID does not have the authority of allocating water: The farmers have that power.
He ruled that IID’s Equitable Distribution Plan injured farmers by prioritizing agricultural uses last during times of shortage. He also claimed that IID’s EDP was invalid because it allocated water partly on a straightline method, that is, by just dividing the total amount of water by the total number of acres.
Anderholt ruled that IID must only refer to the historical use of water by each parcel in its distribution plan. One effect of this historical-use-only mandate is that IID cannot offer water contracts to any new industry that might want to locate in Imperial County.
In compliance with Anderholt’s ruling, IID repealed its distribution plan, meaning that for now, the IID has no clear procedure to stay within its allotment of water from the Colorado River. Since IID is heavily fined for exceeding its allotment, it is now operating in peril.
IID submitted a 58-page rebuttal to Anderholt, and as I read through it, I could only shake my head in befuddlement. What was Anderholt thinking? You don’t have to be a lawyer to see Anderholt’s arguments are thin at best and totally wrongheaded at worst. Here are just a few of the arguments the IID makes:
“Under the Irrigation District Law, the water rights acquired by IID are ‘held in trust for its uses and purposes.’ (Water Code, § 22437.) The water is dedicated to public use (El Camino Irrigation District v. El Camino Land Corp. (1938) 12 Cal.2d 378, 383-385), and water users such as Respondents [Abatti] are prevented from acquiring any private interest in the water rights through their use of the water. (Water Code, § 22262.)”
Regarding allocation, the Water Code gives IID broad discretion, saying “water … shall be distributed equitably as determined by the board.” (Water Code, § 22252.) Water users have no power about how water will be distributed except through advisory committees or petitioning the board.
Water Code § 22075 states: “A district may do any act necessary to furnish sufficient water in the district for any beneficial use.” In other words, they are not bound to any set of priorities except they be equitable. Regarding the straight-line method of apportioning water, the IID’s appeal cites many legal decisions that show this to be the most common method throughout the state. For farmers who need more water than the straightline method supplies them, the EDP provides for a clearinghouse so that farmers can balance water among themselves.
In answering Anderholt about the EDP’s validity, IID points out that it was many years in the making. IID gathered data and employed expert analysis and vetted many options via numerous public hearings. Approved in 2007, the EDP was then revised — again with public input — in 2008, 2009, and three times in 2013, when Abatti sued. Ironically, when Abatti was an IID director himself, he voted for the EDP — one which essentially had the same priority for allocations as the one he sued about in 2013.
In the end, Abatti’s motivation to sue the IID is a mystery. No farmer has ever been denied requested water. And everyone in the Imperial Valley recognizes the need to give farmers as much water as they need. In case of a shortage, all water users will need to cut back a little. That’s the only purpose of the EDP.
It seems that Abatti and company simply do not trust the IID. Although I believe that lack of trust is not justified, I have confidence that the courts will concur with IID’s opinion and overthrow Anderholt’s decision in its entirety.