IID responds to amicus brief claims
IMPERIAL – If Imperial Irrigation District wasn’t rattled by having to file a response to Michael Abatti’s petition to have his case against the district reviewed by the U.S. Supreme Court, it apparently was annoyed with how some interpreted that request.
On Monday, the
Clerk of the United States Supreme Court requested the Imperial Irrigation District to file a response to Michael Abatti’s petition for certiorari.
Previously, the district had dismissed a response as unnecessary and that there is almost no chance that the Supreme Court will grant Abatti’s petition.
On Tuesday, IID General Counsel Frank Oswalt issued a statement downplaying the significance of the court’s request for information, says there was “nothing unusual or indicative” about it.
While IID continued to regard the court request as “routine” on Thursday, it was less nonchalant about a news release regarding an amicus brief filed April 23 on behalf of California Farm Bureau, Imperial County Farm Bureau, Imperial Valley H2O and a handful of local farmers in support of Abatti’s petition.
IID said the press release, which it incorrectly attributed solely Imperial County Farm Bureau but was actually issued jointly by all parties to the amicus brief, was wrong in suggesting “that the U.S. Supreme Court is concerned that the California Appellate Court’s ruling on the Abatti case would deprive Imperial Valley residents of water.”
In its own statement, IID said the farming groups’ release and brief “suggested that Imperial Valley’s water rights are property rights enjoyed by those who own agricultural land and described doomsday scenario consequences if the Supreme Court does not intervene to create private property rights to water where none exist.”
IID noted various users in the Lower Basin states of California, Arizona, and Nevada have contracts to divert water from the Colorado River dating back to the construction of the Hoover Dam. The district added it exclusively holds the contract with the United States to deliver water for beneficial use on lands in the Imperial Valley.
“Water users in the Imperial Valley have a right to be served this water by the IID,” the district said. “Four decades ago, the Supreme Court ruled in Bryant v. Yellen that, ‘ landowners have a legally enforceable right, appurtenant to their lands, to continued service by the district.’”
IID said farmers in Imperial Valley have a legally enforceable right to its water service. But that right to service has never constituted an “appurtenant water right,” a term IID described as a “novel” one used incorrectly to infer a private property right owned by agricultural landowners.
“The best way to protect Imperial Valley’s water right for full use where we live and farm is not to rewrite history and the law, but to embrace it,” said IID Division 2 Director JB Hamby. “A century of efforts on the land, in Congress, and in the courts has developed a water right for the benefit of the people and lands of the Imperial Valley making half a million acres of farms and a home for nearly 200,000 people in the desert possible.”
He continued, “Asking the Supreme Court to convene as a panel of judicial activists to redefine Imperial Valley’s water rights as property owned by landowners is a guaranteed slippery slope to buy- and- dry by outside interests in Imperial Valley and agricultural communities along the river, but I’m confident that won’t be the case. We have one of the most secure water rights on the Colorado River — tampering with it won’t help.”
IVH2O Executive Director Cherrie Watte said while she and others agree with Hamby that the Valley’s water allocation should be put to use for the benefit of its people and lands, they feel the best way to insure the water stays here is for the water to be tied to land rather than to the discretion of five board members.
“This is as important to the property owner with a residence located on 1/ 4 acre as it is to a farmer with hundreds of acres since we all have a stake in the security of our water rights and the future of our community,” Watte said. “A right to service means nothing without a corresponding property water right. The 4th District’s ( appellate court) ruling could allow an IID vote, at any time, to turn off the water to the Imperial Valley. This is the ‘ slippery slope’ we should all be concerned about.”
IID General Counsel Frank Oswalt noted less than 3 percent of cases are accepted by the Supreme Court. “The U.S. Supreme Court will not be interested in readjudicating what is essentially a question of state law,” he said. “There is no doubt that the U.S. Supreme Court will deny this request.”
In her opinion, Oswalt and IID may be jumping the gun in supposing the nation’s highest court won’t review the case. “The U.S. Supreme Court Clerk’s request for response indicates Mr. Oswalt was wrong, and could equally be wrong about the chances of the U.S. Supreme Court accepting the case,” Watte said.
IID brought this situation on itself and the community, Watte said.
“We wouldn’t be in this situation if IID hadn’t changed the priority of water,” she said. “IID picked a fight through their Equitable Distribution Plan, which prioritized all beneficial water uses (even future unknown uses) above farming. When challenged, they decided to defend their actions by trying to rewrite history, resulting in the water rights battle we are seeing today.”
Watte said the agriculture community encouraged settlement throughout the court case, including during appeals, and it proposed possible local solutions.
“This issue is too important for us to ignore,” she added.
IID Board President James Hanks said the directors respect Abatti’s and his allies’ right to pursue resolution in the case. He also said the IID board members have committed to meet their oath of office and their fiduciary duties of care and loyalty as elected officials of the IID.
“While both parties hold steadfast to their positions on the matter,” he said, “waiting for a decision whether the case will be accepted by the U.S. Supreme Court, the IID will respond to the court’s request for more information simply by stating the facts and already established law.”