Judge hears arguments on DCP injunction

EL CENTRO — Imperial County Superior Court Judge L. Brooks Anderholt could rule as early as today on whether to grant an injunction that would stop Imperial Irrigation District from taking part in a plan to prevent shortages on the drought-plagued Colorado River.

The plaintiff, local farmer Mike Abatti, says a previous ruling by Anderholt that favored Abatti over IID and its equitable distribution plan precludes the district from entering into any new contracts that have to do with water because water rights are tied to the land and are a property right of the agricultural user. That case is currently under appeal by IID.

Lawyers for IID and Abatti were in court Wednesday morning for a hearing on the injunction. Anderholt spent the hearing asking the attorneys to persuade him one way or another whether he has jurisdiction to rule on the injunction that would stop the IID Board of Directors from voting on a drought contingency plan.

The DCP is a set of plans to address a historic drought on the Colorado River among the western states that draw from it, and to address declining elevations at Lake Mead reservoir. Specifically Abatti, as well as a small group of vocal farmers, are at odds over an intra-California agreement between IID and Metropolitan Water District that in its draft form has spelled out a contribution of 250,000 acre-feet of water to be contributed by the IID and stored at Lake Mead.

The attorney for Abatti, Cheryl Orr, contends that according to Anderholt’s own decision that water is a property right of the landowners, and that IID cannot vote on the DCP without agricultural users’ permission.

Besides jurisdiction, Anderholt’s secondary concern was whether his previous ruling under appeal by the district could even be applied to a DCP vote.

Anderholt said Wednesday that he would issue a written judgement as early as today or as late as Friday.

At stake in the injunction and in the larger Abatti case under appeal by the district, ultimately, is who controls the water rights in the Imperial Valley. Are they held in trust by the IID for the benefit of the public, or do the water rights belong to the land owners?

At a Nov. 14 DCP public workshop held by the IID, General Manager Kevin Kelley read from a Nov. 6 letter from a small group of farmers, including Abatti, that spelled out the crux of why Abatti believes he deserves injunctive relief:

“The irrigating landowners within IID own an equitable and beneficial interest in the water right IID holds in trust, which is appurtenant (belonging) to their lands and is a constitutionally protected property right. Under the proposed DCP, if accepted, a minimum of 250,000 acre feet, and much more if no cap is put in place, will be ‘contributed’ with no showing that any of it will ever be able to be recovered, and for which no quid pro quo is given. Thus, the DCP as proposed would violate the farmers’ property right, deprive the farmers of property without due process, and constitute a taking without compensation in violation of the federal and state constitutions.”

Kelley said at that meeting said the passage refers to the long-held “elephant in the room,” or the idea that the farmers believe they own the water.