Millview Cnty. Water Dist. v. State Water Res. Control Bd.

• Decision Date: 14 October 2014
• Docket Number: A139481
• Citation: 177 Cal.Rptr.3d 735,229 Cal.App.4th 879
• Court: California Court of Appeals Court of Appeals
• Parties: MILLVIEW COUNTY WATER DISTRICT et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant; Sonoma County Water Agency et al., Interveners and Appellants.

229 Cal.App.4th 879

177 Cal.Rptr.3d 735

MILLVIEW COUNTY WATER DISTRICT et al., Plaintiffs and Respondents,

v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant;Sonoma County Water Agency et al., Interveners and Appellants.

A139481

Court of Appeal, First District, Division 1, California.

Filed September 11, 2014

As Modified on Denial of Rehearing October 14, 2014

See 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 942.

Mendocino County Superior Court, Hon. Leslie D. Nichols (Retired Judge of the Santa Clara Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) (Mendocino County Super. Ct. No. SC UK CVPT 1259715).

Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, Gavin G. McCabe and William Jenkins, Deputy Attorneys General for Defendant and Appellant State Water Resources Control Board.

Bartkiewicz, Kronick & Shanahan, Alan B. Lilly, Sacramento, Andrew J. Ramos, Walnut Creek; Bruce Goldstein, County Counsel and Cory W. O'Donnell, Deputy County Counsel for Intervener and Appellant Sonoma County Water Agency.

Law Office of Michael R. Woods and Michael R. Woods, Sonoma, for Intervener and Appellant Mendocino County Russian River Flood Control and Water Conservation Improvement District.

Neary and O'Brien, Christopher J. Neary and Jennifer O'Brien, Willits, for Plaintiffs and Respondents Millview County Water District.

Carter, Momsen & Knight, Jared G. Carter, Matisse M. Knight and Alexander C. Rich, Ukiah, for Plaintiffs and Respondents Steven L. Gomes and Thomas P. Hill.

Margulies, Acting P.J.

In 2001, plaintiff Millview County Water District (Millview) began diverting water from the Russian River under the authority of a pre–1914 appropriative water right assigned to Millview by plaintiffs Thomas Hill and Steven Gomes. On the basis of a citizen complaint, and following an evidentiary hearing, defendant State Water Resources Control Board (Board) issued a cease and desist order (CDO) substantially restricting Millview's diversion of water under the right, finding it had been largely forfeited by a period of diminished use from 1967 through 1987.

Millview, Hill, and Gomes (together, plaintiffs) filed a petition for a writ of mandate requiring the Board to set aside the CDO, contending, among other things, the Board lacked jurisdiction to limit appropriation under a pre–1914 water right and the evidence did not support the Board's finding of a forfeiture because there was no evidence of a timely adverse claim of use. The trial court accepted the arguments and granted the writ.

We affirm the trial court's issuance of a writ directing the Board to set aside its decision, although on narrower grounds. We conclude the Board does have jurisdiction under Water Code ¹ section 1831 to issue a CDO precluding excessive diversion under a pre–1914 right to appropriate and the Board properly determined the original perfected scope of the claim. We conclude, however, the Board applied an incorrect legal standard in evaluating the forfeiture of Millview's claimed water right and, applying the proper legal standard, the evidence before the Board was insufficient to support a finding of forfeiture. We remand to the Board for reconsideration in light of our decision.

I. BACKGROUND

Millview is a county water district formed to supply water service in an unincorporated area of Mendocino County. In February 2006, a private citizen filed a complaint with the Board, contending that a water right claimed by Millview to support its diversion of water from the Russian River did not authorize the diversion because the right was (1) riparian rather than appropriative and (2) forfeited by long nonuse. Following an investigation, the Board's Division of Water Rights (Division) issued a memorandum concluding Millview's water right, which we will refer to as the “Waldteufel claim,” was a valid pre–1914 appropriative right, but the Division agreed use rights under the Waldteufel claim had been largely forfeited. In April 2009, the Board issued a notice of a proposed CDO limiting Millview's diversion of water under the Waldteufel claim to a maximum rate of 1.1 cubic feet per second (cfs) and a total volume of 15 acre feet per year (afa). Hill and Gomes, who had assigned the Waldteufel claim to Millview, and Millview disputed the Board's conclusions and requested a hearing on the proposed CDO.

The evidence presented to the Board demonstrated the Waldteufel claim originated in connection with a 165–acre Mendocino County parcel referred to as “lot 103 of the Rancho Yokayo” (Lot 103). Lot 103 was bounded on one side by the west fork of the Russian River and located just north of the conjunction of the river's east and west forks to form the main stem of the river. In 1913, one J.A. Waldteufel acquired a 33.88–acre parcel subdivided from Lot 103 (Waldteufel parcel), also bounded on one side by the west fork of the river.

The next year, on March 24, Waldteufel recorded a notice of appropriation of water, claiming “One Hundred (100) inches measured under a four inch pressure” for domestic and agricultural use “upon the lands owned by me, ... contiguous to [the Russian River] ... on Lot # 103 of Healeys survey and Map of Yokayo Rancho.” The Board accepted that this rate of diversion represented a maximum annual volume of approximately 1,450 afa. Waldteufel's notice stated that a copy had been posted “at the point of intended diversion” on the west fork of the river. A local resident, born in 1914, recalled subsequent owners of the Waldteufel parcel pumping water from the river for “at least 50 years” to irrigate alfalfa and tree crops.² Plaintiffs submitted testimony from an expert who estimated that, in 1913, a grower would have used between 932 and 1,310 afa, applied between April and October, to irrigate a 165–acre crop of alfalfa.

The Waldteufel parcel passed through several hands before being acquired by Lester and Bertha Wood in 1945. Between 1967 and 1987, Lester Wood filed statements of water diversion and use with the Board, typically claiming water use equivalent to between 7.5 and 15 afa to irrigate 30 acres of grapes and walnuts. Historic river flow data suggest the Woods' diversions were not limited by the supply of available water. The Waldteufel parcel appears to have remained in the Wood family until it was sold to Hill and Gomes in 1998. ³ There is no data in the record regarding the volume of diversion under the Waldteufel claim for any other period before the beginning of Millview's diversions.

In 2002, Hill and Gomes assigned the Waldteufel claim to Millview, with an option to purchase that Millview later exercised. Millview constructed a new point of diversion in the main stem of the Russian River, downstream from the confluence of the two forks, where the flow of water is greater and more reliable than on the west fork.⁴ Because Millview diverted water year-round to supply homes, including both homes constructed on the Waldteufel parcel and those elsewhere within Millview's boundaries, it expanded the nature and location of water use and the timing of diversions, compared with the prior owners, who appear to have used the claim primarily for agricultural purposes in the dry season. During the years for which information is available in the record, 2001 through 2008, Millview's diversions varied from a low of 3.76 acre-feet in the first year to a high of 1,174.75 acre-feet in the year prior to the filing of the citizen complaint.

The lower Russian River is a managed water system. Water that would otherwise flow into the river during the rainy season is retained and stored in two reservoirs managed by the Sonoma County Water Agency (SCWA). During the dry portion of the year, the SCWA releases water to maintain minimum river flow levels established in standards adopted by the Board. In theory, at least, any excess diversion of water by Millview during the dry season must be compensated by increased water releases from these dams to maintain the minimum flow level. In an order apparently issued in 1998, the Board had determined the west and east forks of the Russian River and “a portion of the mainstem within Mendocino County” are fully appropriated from July 1 to October 31.⁵

Based on this evidence, the Board issued a CDO limiting Millview's diversion under the Waldteufel claim to 15 afa, taken only during the period April through September. Relying on the evidence discussed above, the Board concluded there was no evidence Waldteufel used the diverted water on any property other than the 33.88–acre parcel he purchased in 1913. As a result, the Board noted, “it does not appear” that the Waldteufel claim was ever perfected as a right of appropriation, since Waldteufel's use of water for irrigation on the Waldteufel parcel would have been allowed by the riparian rights available to a parcel adjoining the river. While a finding to this effect would have precluded any appropriation under the claim, the Board did not base its order on this theory because its notice of a proposed CDO did not raise as an issue the validity of the Waldteufel claim. The Board's decision did, however, caution that “the validity of the Waldteufel claim of right in its entirety is questionable.”

Accepting the Waldteufel claim as appropriative, the Board found plaintiffs had failed to prove Waldteufel had ever actually diverted or used the maximum claimed volume of approximately 1,450 afa. The Board found reasonable Millview's expert evidence regarding the volume of irrigation water that would have been used to irrigate alfalfa in Waldteufel's day, but because it found no evidence he had actually irrigated more than the 33.88–acre parcel he purchased, rather than the full 165 acres of Lot 103 as assumed by the expert, the Board reduced the estimate of Waldteufel's total use proportionately. By assuming the expert's rate of irrigation was used on the smaller parcel,...