Antelope Valley Groundwater Cases L. A. Cnty. Waterworks Dist. No. 40 v. Tapia

• Decision Date: 16 March 2021
• Docket Number: F082492
• Citation: 277 Cal.Rptr.3d 419,63 Cal.App.5th 17
• Parties: ANTELOPE VALLEY GROUNDWATER CASES Los Angeles County Waterworks District No. 40 et al., Cross-complainants and Respondents, v. Charles Tapia, Individually and as Trustee, etc., et al., Cross-defendants and Appellants; Antelope Valley–East Kern Water Agency, Cross-defendant, Cross-complainant and Respondent; U.S. Borax Inc. et al., Cross-defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

63 Cal.App.5th 17

277 Cal.Rptr.3d 419

ANTELOPE VALLEY GROUNDWATER CASES^*Los Angeles County Waterworks District No. 40 et al., Cross-complainants and Respondents,

v. Charles Tapia, Individually and as Trustee, etc., et al., Cross-defendants and Appellants;Antelope Valley–East Kern Water Agency, Cross-defendant, Cross-complainant and Respondent;U.S. Borax Inc. et al., Cross-defendants and Respondents.

F082492

Court of Appeal, Fifth District, California.

Filed March 16, 2021

Law Offices of Robert H. Brumfield and Robert H. Brumfield III, for Cross-defendants and Appellants.

Mary Wickham, County Counsel, Warren R. Wellen, Deputy County Counsel; Best Best & Krieger, Eric L. Garner, Los Angeles, Jeffrey V. Dunn, Irvine, Wendy Y. Wang, Los Angeles; Lagerlof, Thomas Bunn III ; Murphy & Evertz, Douglas J. Evertz, Costa Mesa; Olivarez Madruga Lemieux O'Neill, W. Keith Lemieux ; and Lynne Patrice McGhee, San Jose, for Cross-complainants and Respondents.

Richards, Watson & Gershon, James L. Markman, Brea, and B. Tilden Kim, Los Angeles, for Cross-defendant, Cross-complainant and Respondent.

Venable, William M. Sloan, Tyler G. Welti, San Francisco; Ellison, Schneider, Harris & Donlan, Christopher M. Sanders, Sacramento; Kuhs & Parker, Robert G. Kuhs, Bernard C. Barmann, Jr., Bakersfield; Kronick, Moskovitz, Tiedemann & Girard, Eric N. Robinson, Stanley C. Powell, Sacramento; Michael N. Feuer, Los Angeles City Attorney, Joseph Brajevich, Raymond Ilgunas ; Law Office of LeBeau Thelen, Bob H. Joyce ; Zimmer & Melton and Richard Zimmer for Cross-defendants and Respondents.

OPINION

PEÑA, Acting P.J.

In 1999, the first lawsuits were filed in what ultimately evolved into this proceeding known as the Antelope Valley Groundwater Cases (AVGC). The AVGC proceeding litigated whether the water supply from natural and imported sources, which replenished an alluvial basin from which numerous parties pumped water, was inadequate to meet the competing annual demands of those water producers, thereby creating an "overdraft" condition.¹ A number of the parties asserted that, without a comprehensive adjudication of all competing parties' rights to produce water from the aquifer, and a physical solution to regulate future pumping to protect the aquifer, this continuing overdraft would negatively impact the health of the aquifer.

One of the competing parties, appellant Charles Tapia, individually and as trustee of a trust (jointly, Tapia), claimed he owned land overlying the aquifer. Tapia first appeared in the late stages of the AVGC litigation to interpose a claim that he was entitled to draw 534.5 acre-feet per year (afy) from the limited supply of water available in the aquifer, joining the thousands of entities and people who asserted competing claims to draw from the limited available water.

Before Tapia's first appearance, the Judicial Council had ordered all lawsuits consolidated into this single adjudication proceeding, and the trial court had embarked on an 11-year process in which it, seriatim, (1) defined the geographical boundaries of the Antelope Valley Adjudication Area (AVAA) to determine which parties would be necessary parties to any global adjudication of water rights, (2) concluded the aquifer encompassed within the AVAA boundaries (the AVAA basin) was functionally a single aquifer, and (3) found the AVAA basin was in a state of chronic overdraft because extractions exceeded the basin-wide annual safe yield by a considerable margin.

The next phase ("Phase 4"), which also occurred before Tapia's first appearance, quantified how much water was currently being pumped by the participating competing water rights claimants. The court ultimately determined the annual "baseline" amounts actually extracted by the largest of the competing parties with claims to water from the aquifer. These annual extractions confirmed the amounts annually extracted were substantially in excess of the safe yield for the AVAA basin.

The next phase, which contemplated trial of the issues of federal reserved water rights and imported water return flow rights, was interrupted by settlement discussions. These discussions ultimately produced an agreement among the vast majority of parties in which they settled their competing groundwater rights claims and agreed to support the contours of a proposed plan (the "Physical Solution") designed to bring the AVAA basin into hydrological balance. The Physical Solution included limits on pumping that would bring total annual extractions from the aquifer into balance with the available "native safe yield" (sometimes, NSY). Accordingly, among the provisions of the proposed Physical Solution was an agreement by most of those who had demonstrated their extant pumping from the aquifer during the Phase 4 baseline period, as follows: (1) to substantially reduce their water extractions to a level that would match their assigned allocation of water from the NSY, and (2) to pay for imported water for any extractions above their assigned allocation.

Tapia was not among the settling parties. Accordingly, before considering whether to approve the Physical Solution (including the proposed global allocation of water from the NSY) for the AVAA basin, the court conducted a separate trial on Tapia's unsettled claims and defenses, including (1) the extent to which various public water suppliers (sometimes, PWS) had obtained prescriptive rights in the NSY as to Tapia and others, and (2) whether Tapia had demonstrated his entitlement to an allocation from the NSY based on Tapia's showing of how much he pumped for reasonable and beneficial uses on his land. The court found the PWS had established prescriptive rights in the NSY as to Tapia, and that Tapia had not adequately shown a basis for his requested allocation of water under the Physical Solution.

In addition to resolving Tapia's unsettled claims, the court held a trial on the rationale for and efficacy of the proposed Physical Solution. The court found the proposed Physical Solution was reasonable, fair and beneficial as to all parties, and served the public interest, and approved the Physical Solution.

Tapia's claims on appeal are murky, but it appears Tapia interposes three claims: (1) the Physical Solution violates California water rights priorities because it allocates portions of the NSY to the public water suppliers while denying Tapia his claimed allocation of that NSY; (2) the Physical Solution is inequitable because overlying owners with demonstrable existing pumping were allocated proportionate shares of the remaining NSY while Tapia, despite similarly showing existing pumping, did not receive a proportionate share; and (3) the Physical Solution violates the constitutional requirement that available water be applied to reasonable and beneficial uses. We conclude substantial evidence supports the judgment as to Tapia, and that the Physical Solution comports with California law governing water priorities and the constitutional "reasonable and beneficial use" requirement. Accordingly, we will affirm the judgment as to Tapia.

IFACTUAL AND PROCEDURAL HISTORY

A. Factual Setting

The AVAA encompasses a vast desert area of over a thousand square miles. As of 2005, it was home to over 450,000 people, with substantial projected population growth in the future. It is also home to Edwards Air Force Base, making the United States the AVAA's largest single landowner. Its regional economy, while historically rooted in agricultural operations, has been shifting to include increased residential communities, as well as industrial and mining operations.

The principal source of water supporting all of these uses is the aquifer underlying the AVAA. The aquifer underlying the AVAA was in a state of chronic "overdraft," meaning that extractions from the aquifer have exceeded the amount of water replenishing that aquifer by significant margins. It had been in overdraft for decades before the current litigation commenced in 1999. The overall water levels within the AVAA basin were declining, and declining water levels have caused significant long-term damage, including subsidence and lost aquifer storage capacity. The estimated average annual safe yield from all sources of recharge (natural sources such as precipitation, external sources such as imported water, and return flows) was 110,000 afy for the AVAA basin, but the numerous parties who pumped water from that basin were annually extracting an estimated 130,000 to 150,000 afy.

B. The Competing Water Use Claimants

1. The Public Water Suppliers

The PWS are a group of agencies and special districts formed to supply water to their customers. Los Angeles County Waterworks District No. 40 (District 40), the largest of these entities, is the largest urban water supplier for the region's cities, and it pumps from the aquifer to supply water to over 200,000 people within the AVAA, primarily for residential uses. Other public water entities occupying roles similar to District 40 included Palmdale Water District, Littlerock Creek Irrigation District, Palm Ranch Irrigation District, and Quartz Hill Water District. District 40 also purchases water from the State Water Project, which is imported into the AVAA and supplements the basin's native safe yield.

2. The Federal Government

The United States owns approximately 300,000 acres overlying the AVAA basin and operates Edwards Air Force Base on those lands. The United States claimed federal reserved water rights of up to 11,500 afy for military purposes distinct from any correlative rights it had as an overlying landowner.

3. The Overlying Landowners Presently Using Groundwater

There are multiple categories of owners of overlying land who, collectively, extract the majority of the AVAA basin's water.

There are numerous individual persons or entities who own overlying land and who demonstrated the extent to which they extracted water for use on that land. This group includes corporate landowners, which extracted water to...