County of Imperial v. Superior Court

• Decision Date: 14 June 2007
• Docket Number: No. C048984.,C048984.
• Citation: 152 Cal.App.4th 1,61 Cal.Rptr.3d 145
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF IMPERIAL, Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent; State Water Resources Control Board et al., Real Parties in Interest.

61 Cal.Rptr.3d 145

152 Cal.App.4th 1

COUNTY OF IMPERIAL, Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent State Water Resources Control Board et al., Real Parties in Interest.

No. C048984.

Court of Appeal, Third District.

June 14, 2007.

Ralph Cordova, Jr., Imperial County . Counsel, Joanne L. Yeager, El Centro; Rossmann and Moore, Antonio Rossmann, San Francisco, Roger B. Moore and David R. Owen for Petitioner.

Ralph Cordova, Jr., Imperial County Counsel, Joanne L. Yeager, El Centro; Jackson DeMarco & Peckenpaugh, Michael L. Tidus, Alene M. Taber and Kathryn M. Casey, Irvine, for Imperial County Air Pollution Control District as Amicus Curiae on behalf of Petitioner.

Kurt R. Wiese, District Counsel; Shute, Mihaly & Weinberger, Ellen J. Garber, San Francisco, and David Nawi for South Coast Air Quality Management District as Amicus Curiae on behalf of Petitioner.

Law Office of J. William Yeates, J. William Yeates, Sacramento, Mary U. Akens and Keith G. Wagner, Sacramento, for Planning and Conservation League, National Audubon Society and Defenders of Wildlife as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary E. Hackenbracht, Senior Assistant Attorney General, Matthew Goldman, Deputy Attorney General, Peter von Haam, Deputy Attorney General and Clifford T. Lee, Deputy Attorney General, for Real Party in Interest State Water Resources Control Board.

Allen Matkins Leek Gamble & Mallory, David L. Osias, Robert R. Barnes, Jeffrey R. Patterson, Mark J. Hattam, San Diego; Horton, Knox, Carter & Foote and John Penn Carter, El Centro, for Real Party in Interest Imperial Irrigation District.

Hatch & Parent, Lisabeth D. Rothman, Susannah M. Mitchell, Los Angeles; and Daniel S. Hentschke, General Counsel, for Real Party in Interest San Diego County Water Authority.

Jeffrey Kightlinger, Adam C. Kear; and Linus Masouredis, Oakland, for Real Party in Interest The Metropolitan Water District of Southern California.

Redwine and Sherrill, Gerald D. Shoaf, Steven B. Abbott; Best, Best & Krieger, Michelle Ouellette and Megan K. Starr, Riverside, for Real Party in Interest Coachella Valley Water District.

RAYE, J.

As Mark Twain is said to have observed: "Whiskey is for drinking; water is for fighting over." California and water are inextricably linked in a battle royal waged over distribution of this precious resource among competing interests. No other resource is as vital to California's cities, agriculture, industry, and environment as this liquid gold. Predictably, no other resource generates such heated controversy as this commodity sometimes referred to as the "oil of the 21st century."

Here, real parties in interest Imperial Irrigation District (Imperial) and San Diego County Water Authority (San Diego) sought to enter into an agreement to transfer 300,000 acre feet of water per year (afy) from Imperial to San Diego. Ultimately, the parties agreed to transfer 200,000 afy and conserve 100,000 afy for possible future acquisition by The Metropolitan Water District of Southern California (Metropolitan) and Coachella Valley Water District (Coachella).

Real party in interest State Water Resources Control Board (Board) approved the transfer. Petitioner County of Imperial (County) filed two separate mandamus petitions challenging various aspects of the Board's decision under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). The first petition named the Board as respondent and Imperial and San Diego as real parties in interest. The second petition named Imperial as respondent and San Diego as real party in interest. Neither petition named Metropolitan or Coachella.

Imperial demurred, arguing the County failed to name Metropolitan or Coachella, who were indispensable parties in both proceedings. The trial court sustained the demurrers with leave to amend. Subsequently, the County amended the petitions, naming Metropolitan and Coachella as interested parties. Metropolitan, Coachella, and San Diego filed joint demurrers, arguing Metropolitan and Coachella could not be added after the statute of limitations ran. The trial court sustained the demurrers without leave to amend, finding Metropolitan and Coachella Valley indispensable parties and finding the statute of limitations had run.

The County filed a petition for writ of mandate. We issued an alternative writ.¹ The County argues the trial court abused its discretion in dismissing the action after finding Metropolitan and Coachella indispensable parties. We find no abuse of trial court discretion and shall affirm the trial court's judgment sustaining the demurrers without leave to amend.

FACTUAL AND PROCEDURAL BACKGROUND

The County petitions for relief from orders in two separate, but connected, cases. In County of Imperial v. State Water Resources Control Board, Sacramento County Superior Court No. 03CS00082 (case No. 82), the County challenges the Board's approved permit application for a transfer of water from Imperial to San Diego. In County of Imperial v. Imperial Irrigation District, Sacramento County Superior Court No. 04CS00876 (case No. 876), the County posited various CEQA challenges to the underlying agreement between the transferring parties.

Although this litigation concerns numerous entities and has spawned a voluminous record, at its essence the petition rests upon the trial court's determination that Metropolitan and Coachella represented indispensable parties in case No. 82 and case No. 876. With this limited procedural question in mind, we review the factual and procedural background.

Imperial and Colorado River Water

Imperial is the largest single holder of water rights on the Colorado River in California. In 1914 California initiated the water rights permitting system currently administered by the Board. Imperial was formed in 1911 to bring Colorado River water to California's Imperial Valley. Each year, Imperial provides enough water to irrigate 500,000 acres in the Imperial Valley. Imperial also delivers water to cities, schools, and businesses. (Imperial Irr. Dist. v. U.S. E.P.A. (9th Cir.1993) 4 F.3d 774, 774-775.)

Metropolitan and Coachella also possess water rights on the Colorado River under an agreement among all California water rights holders known as the Seven Party Agreement of 1931 (Seven Party Agreement). The Seven Party Agreement placed water rights holders in a priority system. Most of Imperial's water rights under this system take priority over most of Coachella's and over all of Metropolitan's. Based on its place in the priority system, Imperial is entitled to divert its full right to water before Metropolitan can divert any water at all. San Diego possesses no Colorado River water rights.

This priority system led to a conflict among Imperial, San Diego, Metropolitan, and Coachella. Imperial and San Diego contend Imperial may reduce its water use and designate another recipient to receive its unused water. In essence, Imperial may transfer excess water. Coachella and Metropolitan disagree and argue that under federal law, any water unused by Imperial is available to them under the priority system.

In the 1980s, the Board found some of Imperial's water use practices unreasonable and wasteful. The Board directed Imperial to increase water conservation. One suggested measure by which Imperial could increase conservation was to transfer conserved water to a willing purchaser in exchange for funding to support Imperial's conservation efforts.

Imperial and San Diego's Petition to the Board

In 1998 Imperial and San Diego executed an agreement under which San Diego would fund water conservation measures within Imperial's service area in exchange for Imperial's transfer of up to 300,000 afy to San Diego (transfer agreement). Imperial and San Diego jointly petitioned the Board to approve changes in the point of diversion and place of use in Imperial's water rights permit to allow an annual transfer on a long-term basis of up to 300,000 afy of Colorado River water from Imperial to San Diego for up to 75 years. The petition noted the agreement was ineffective until completion of environmental review, when the agencies would determine whether to go forward with the project.

The Legislature provides for Board approval of long-term transfers of water between water districts. (WatCode, §§ 1735-1737.) Water Code section 1735 states: "The board may consider a petition for a long-term transfer of water or water rights involving a change of point of diversion, place of use, or purpose of use. A long-term transfer shall be for any period in excess of one year."

A request for approval of a long-term water transfer must be filed by the holder of the water right, permit, or license. (Cal.Code Regs., tit. 23, § 811.) A request for a change in point of diversion, place of use, or purpose of use must be filed by the rights holder. (Wat.Code, § 1701.)

Water Code section 1736 provides that the Board may approve a petition for transfer: "The board, after providing notice and opportunity for a hearing, including, but not limited to, written notice to, and an opportunity for review and recommendation by, the Department of Fish and Game, may approve such a petition for a long-term transfer where the change would not result in a substantial injury to any legal user of water and would not unreasonably affect fish, wildlife, or other instream beneficial uses."

The County protested the petition for approval of the transfer. The County argued the transfer would lead to detrimental third-party effects on the County's economy and environment. The County emphasized the impacts caused by the transfer's effects on the Salton Sea and the potentially severe air quality impacts associated with fallowing land and drying out the Salton Sea.

Metropolitan and Coachella Protest the Transfer

Metropolitan and Coachella...