Baldwin v. County of Tehama

• Decision Date: 28 December 1994
• Docket Number: C017301,Nos. C017285,s. C017285
• Citation: 36 Cal.Rptr.2d 886,31 Cal.App.4th 166
• Court: California Court of Appeals Court of Appeals
• Parties: Peter BALDWIN et al., Plaintiffs and Respondents, v. COUNTY OF TEHAMA, Defendant and Appellant. Bruce J. MYERS etc., et al., Plaintiffs and Respondents, v. COUNTY OF TEHAMA, Defendant and Appellant.

Page 886

36 Cal.Rptr.2d 886

31 Cal.App.4th 166

Peter BALDWIN et al., Plaintiffs and Respondents, v. COUNTY OF TEHAMA, Defendant and Appellant.

Bruce J. MYERS etc., et al., Plaintiffs and Respondents, v. COUNTY OF TEHAMA, Defendant and Appellant.

Nos. C017285, C017301.

Court of Appeal, Third District, California.

Dec. 28, 1994.

Review Denied March 17, 1995.

Neumiller & Beardslee, Richard M. Archbold, Stockton, Nelson D. Buck, County Counsel, for defendant and appellant.

Antonio Rossmann, Thomas M. Fries, County Counsel (Imperial), James Scanlon, County Counsel (Sutter), Stephen Dietrich, Jr., County Counsel (Tuolumne), James A. Curtis, County Counsel (Nevada), Phillip S. Cronin, County Counsel (Fresno), Dwight L. Herr, County Counsel (Santa Cruz), Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Walter E. Wunderlich, Asst. Atty. Gen., Clifford T. Lee, Deputy Atty. Gen., as amici curiae for defendant and appellant.

Kronick, Moskovitz, Tiedemann & Girard, Janet K. Goldsmith, Thomas W. Birmingham, Janis J. Elliott, Andrew B. Pollak, Sacramento, for plaintiffs and respondents.

Gregory S. Weber, Sacramento, as amicus curiae for plaintiffs and respondents.

BLEASE, Acting Presiding Justice.

This case tenders the question whether a county is precluded from the regulation of groundwater because state law has preempted the field. We will conclude that state law, while regulating aspects of groundwater, does not wholly preclude county regulation.

The defendant County of Tehama (Tehama) appeals from a judgment declaring invalid an ordinance by which it regulates the pumping practices and uses of groundwater based upon the finding that the Water Code ¹ wholly preempts the field of groundwater regulation.

The plaintiffs, landowners in Tehama who are subject to the ordinance, together with amicus curiae Gregory Weber, claim the judgments are supported by provisions of the Water Code and uncodified statutes concerning water use which show that the state has occupied the field of groundwater regulation.

They also contend that the ordinance is invalid because its real purpose is to hoard water in derogation of California Constitution article X, section 2.

The County of Tehama, supported by amici State Water Resources Control Board, The Department of Water Resources and Antonio Rossmann, contends that none of the statutes to which plaintiffs point preempt the ordinance and it does not violate article X, section 2.

Tehama's contentions have merit and we will reverse the judgment.

FACTS AND PROCEDURAL BACKGROUND

In light of the generic nature of the claim of preemption, the facts material to resolution of the appeal are few.

On February 4, 1992, Tehama enacted an ordinance with the following material provisions. A permit is required to extract groundwater for the purpose of use on land other than where the extraction occurs. A permit may only be granted if the board of supervisors finds that it will not result in: a withdrawal of more water from the groundwater basin than will be replenished over time ("overdraft"), saltwater intrusion, adverse effects upon the rate of flow of water through the aquifer, adverse effects upon the water table, or the "overdraft" of groundwater based upon the preexisting and reasonably foreseeable beneficial uses of the water on lands within Tehama overlying the aquifer ("mining"). The operation of any well in the county in a manner that causes a cone of depression in the water table beyond the boundaries of the property is prohibited. If any part of the ordinance is determined to be illegal, it should be severed and the other provisions given effect.

On March 3, 1992, plaintiff Bruce Myers and others petitioned for a writ of mandate and for injunctive and declaratory relief against Tehama seeking, among other things, to invalidate the ordinance on the ground that the power of a county to enact an ordinance regulating groundwater had been preempted by state law. On May 27, 1992, Peter Baldwin and certain partnerships filed a similar action. In both actions the plaintiffs alleged that they owned land in Tehama and desired to extract groundwater therefrom for the purpose of use in irrigating land in Colusa County or Glenn County. The two actions were consolidated and, by stipulation, the trial on the matter was bifurcated with the court first to hear and decide the claim of preemption and then the other issues, if necessary.

The trial court decided that Tehama's ordinance is preempted and entered a judgment declaring that it is invalid and enjoining Tehama from enforcing it. Tehama appeals from the judgment. ²

DISCUSSION

Introduction

We first note the principal claim of invalidity. With one exception, which we later consider, the plaintiffs do not claim that any specific provision of the Tehama County ordinance is invalid, on its face or as here applied, because it is in direct conflict with state law. Accordingly, we imply no view on such questions, either under the statutes discussed herein or under any other source of general law. Except as noted, the sole question tendered is whether the field of groundwater is outside the county's police power and for that reason the entire ordinance must fall. That is the question we answer.

The State Constitution provides that a city or county "may make and enforce within Over 60 years ago, the Supreme Court, in In re Maas (1933) 219 Cal. 422, 27 P.2d 373, upheld an Orange County ordinance which limited the uses of water from pumping wells, prohibiting, among other things, the use of such water to flood land for hunting by duck clubs. It was contended that the ordinance "represents an invasion of the police power of the state and that it is without the authority and jurisdiction of boards of supervisors to so legislate." (Id. at p. 424, 27 P.2d 373.) The Supreme Court rejected that argument, reasoning as follows:

                its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws."  (Cal. Const. art.  XI, § 7.)   Despite the sweep of this language it has been asserted that it does not reach certain subjects.  (See McBain, The Law and The Practice of Municipal Home Rule 673 (1916);  Blease, Civil Liberties and the California Law of Preemption (1966) 17 Hastings L.J. 517, 520;  cf. Peppin, Municipal Home Rule in California III:  Section 11 of Article XI of the California Constitution (1944) 32 Cal.L.Rev. 341, 357, fn. 59, 365.)   But, as Tehama notes, there is no tenable claim that the subject of groundwater is outside the purview of municipal legislation
                

"Legislation with respect to water affects the public welfare and the right to legislate in regard to its use and conservation is referable to the police power of the state. (Ex parte Elam, 6 Cal.App. 233, 237 ,) This does not mean, however, that this phase of the police power is to be exercised exclusively by the state legislature.

"...

"The ordinance here involved satisfies all of [the] requirements [for county exercise of the police power]. It has for its purpose the conservation of subterranean waters, a legitimate field for the exercise of the police power. (Ex parte Elam, supra.) It is purely local in character and operation, for it seeks to prevent the undue waste of the percolating waters within the county of Orange, thereby conserving said waters and materially benefiting the public welfare. The ordinance does no violence to any general law of the state to which our attention has been directed." (In re Mass, 219 Cal. at pp. 424-425, 27 P.2d 373.)

Since the field of groundwater use is within the municipal police power, a local ordinance may be enacted subject to the constitutional constraints applicable to all legislation, unless the power so to do has been preempted by state legislation, i.e., only if it conflicts with general law. When, as here, the claim is that an entire field has been occupied by state law, wholly precluding municipal regulation, it must be shown that the general law directly or impliedly "covers" the whole of the claimed field of regulation.

Except as noted, the plaintiffs do not claim the Tehama ordinance is in direct conflict with state law. They would imply an occupation of the field from the declared policy of the state or from the pattern and substance of the regulations which the state has enacted. The criteria for such an implication have been articulated as follows.

"[W]e may infer an intent to preempt [the field] only if ' "(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; [or] (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action...." ' [Galvan v. Superior Court (1969) ] 70 Cal.2d at pp. 859-860, [76 Cal.Rptr. 642, 452 P.2d 930], quoting [In re] Hubbard [ (1964) ] 62 Cal.2d at p. 128 [41 Cal.Rptr. 393, 62 Cal.2d 119]; see also [citations]; cf. Rossmann & Steel, Forging the New Water Law: Public Regulation of "Proprietary" Groundwater Rights (1982) 33 Hastings L.J. 903, 937-942 [hereafter Groundwater Rights ]." (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 708, 209 Cal.Rptr. 682, 693 P.2d 261.)

The state enactments upon which plaintiffs rely do not provide direct coverage of the field of groundwater regulation. In the main they are grants of authority to local public agencies to manage groundwater. The Legislature has eschewed the enactment of substantive law covering this field. (See, e.g According to plaintiffs, this void is to be filled by an implication the Legislature has occupied the entire field of groundwater regulation predicated upon the declaration of state policy and a pattern they discern in the grant of statutory authority to manage groundwater to local public agencies coupled with a failure to enact...