California’s top lawyer says IID does not hold water rights in trust

Imperial Irrigation District has found three new friends in its challenge to Judge L. Brooks Anderholt’s ruling in support of farmers’ claim to water rights. They are the Association of California Water Agencies, the San Joaquin Tributaries Authority, and the California State Water Resources Control Board.

Back in April, after the Imperial Valley Coalition for Fair Sharing of Water filed its arguments supporting IID’s appeal of the Anderholt decision, these three groups agreed that Judge Anderholt erred.

The “friend-of-the court” brief filed by the California State Water Resources Control Board and signed by the State Attorney General Xavier Becerra is most intriguing. It challenges the very framework that both parties have always agreed to: The idea that the IID holds water in trust for its beneficiaries.

Up till now, the disagreement has been on interpretation of the nature of that trust and who exactly qualifies as a “beneficiary.” Farmers have claimed (and Judge Anderholt agreed) that they hold water rights, and the IID is sort of a stand-in for them in all negotiations about water. The IID has held that they hold the water rights and have the power to allocate water. Further, the IID has held that everyone in the Imperial Valley is a beneficiary of the trust.

But Xavier Becerra sees things differently.

When Judge Anderholt ruled in favor of farmers holding water rights, he cited a footnote in the Bryant v. Yellen case from 1980. Here’s the relevant part of that footnote:

“As beneficiaries of the trust, the landowners have a legally enforceable right, appurtenant to their lands, to continued service by the District.”

Judge Anderholt and Mr. Abatti’s attorneys take this footnote to mean that

farmers’ right to water service is an ownership right. This puts the power over water in the hands of farmers and takes it out of the hands of the elected board of the IID.

Becerra argues the Judge Anderholt made many errors, but the most interesting error has to do with the way the concept of trust came into the picture. It was through a case called Ivanhoe Irrigation District v. All Parties and Persons (1957). We’ll call this case Ivanhoe No. 1.

The case started in 1949 when Ivanhoe (located in Visalia, Calif.) entered into a contract with the Bureau of Reclamation to receive federally supplied water. Because the contract was with the bureau, it included the 160-acre restriction. A farmer who owned 309 acres joined the lawsuit to invalidate the contract.

The judge in that case ruled on appeal in the farmer’s favor. He reasoned that because the State of California owned the water in trust for the public of California, the federal government obtained title to water under the terms of that trust. The judge’s name was John Shenk. He used the language that Judge Anderholt cited in the footnote quoted above.

But what our state attorney general points out is that there is also an Ivanhoe case No. 2 from 1960. What the Abatti attorneys and Judge Anderholt overlooked is that Ivanhoe No. 2 reversed Ivanhoe No. 1 and totally shot down this “trust” relationship between the state and its users or between a public agency (like IID) and its water users.

A little more research shows that even in 1957, when Judge Shenk used the trust relationship to justify his ruling, some legal commentators questioned him. In the December California Law Review, authors John Dutton and Claude Rohwer dismissed the trust theory, saying, “There seems to be no basis in existing case law or statute for the theory.”

When the Ivanhoe case went to the U.S. Supreme Court in 1958, judges made short work of it. They reversed Judge Shenk’s ruling that California owned the water and thus California law would dominate. Instead, they ruled that because the U.S. government held legal title to the water, it could impose federal law on a contract to use the water.

The case was then sent back to California courts, where in 1960, Ivanhoe No. 2 became law. The contract between Ivanhoe Irrigation District and the United States (including the 160-acre limitation) was valid. Ivanhoe No. 1 was null and void. The so-called “trust relationship” was out.

Therefore, when Abatti attorneys referenced Ivanhoe No. 1 in their pleadings, and when Judge Anderholt used it as the foundation of his decision, they were wrong. At least that’s what the attorney general of the state of California says.

Our state’s top lawyer believes that our local farmers do not own water rights and are not beneficiaries to the IID’s water rights, but only customers. Now we need to see what the judges think.