Quantification Settlement Agreement Cases., No. C064293.

CourtCalifornia Court of Appeals
Writing for the CourtROBIE, Acting P.J.
Citation11 Cal. Daily Op. Serv. 14701,201 Cal.App.4th 758,134 Cal.Rptr.3d 274,2011 Daily Journal D.A.R. 17476
Decision Date07 December 2011
Docket NumberNo. C064293.

201 Cal.App.4th 758
134 Cal.Rptr.3d 274
11 Cal.
Daily Op. Serv. 14,701
2011 Daily Journal D.A.R. 17,476


No. C064293.

Court of Appeal, Third District, California.

Dec. 7, 2011.

[134 Cal.Rptr.3d 285]

Allen Matkins Leck Gamble Mallory Natsis, David L. Osias and

[134 Cal.Rptr.3d 286]

Mark J. Hattam, San Diego; Horton, Knox, Carter & Foote and John Penn Carter, El Centro, for Plaintiff and Appellant Imperial Irrigation District.Rutan & Tucker, Joel D. Kuperberg and Michelle Molko, Costa Mesa, for Defendant and Appellant Vista Irrigation District.Endeman, Lincoln, Turek & Heater and Donald R. Lincoln; Jeffrey R. Epp, City Attorney, for Defendant and Appellant City of Escondido.Brownstein Hyatt Farber Schreck, Lisabeth D. Rothman, Los Angeles, Amy M. Steinfeld, Santa Barbara; Todd R. Leishman, Los Angeles; Daniel S. Hentschke, Oceanside, for Defendant and Appellant San Diego County Water Authority.Redwine and Sherrill, Steven B. Abbott and Julianna K. Strong, Riverside; Law Offices of Best Best & Krieger, Michelle Ouellette and Melissa R. Cushman, Riverside, for Defendant and Appellant Coachella Valley Water District.Karen L. Tachiki, Linus Masouredis, Adam C. Kear, and John Schlotterbeck, for Defendant and Appellant The Metropolitan Water District of Southern California.Kamala D. Harris and Edmund G. Brown, Jr., Attorneys General, Kathleen A. Kenealy, Senior Assistant Attorney General, Sara J. Russell, Supervising Deputy Attorney General, Daniel Fuchs, Clifford T. Lee, Marilyn Levin, and Gary Tavetian Deputy Attorneys General, for Defendant and Appellant State of California acting by and through the Department of Fish and Game and the Department of Water Resources.Michael L. Rood, County Counsel, Katherine Turner, Deputy County Counsel; Jackson DeMarco Tidus Peckenpaugh, Michael L. Tidus, Alene M. Taber, and Kathryn M. Casey, for Defendant and Appellant Imperial County Air Pollution Control District.Michael L. Rood, County Counsel, Katherine Turner, Deputy County Counsel; Rossmann and Moore, Antonio Rossmann, Roger B. Moore, Laurie Mikkelsen and Barton Lounsbury, for Defendant and Appellant County of Imperial.Ignacia S. Moreno, United States Assistant Attorney General, John L. Smeltzer; Stephen M. MacFarlane; Aaron P. Avila; Robert F. Snow; M. Rodney Smith, Jr., in Amicus Curiae on behalf of Appellants.Robert S. Pelcyger; Barbara Karshmer, Berkeley in Amicus Curiae for San Luis Rey Indian Water Authority on behalf of Appellants.Michael B. Jackson; Rose M. Zoia for Defendant and Appellant Protect our Water and Environmental Rights.Law Offices of Patrick J. Maloney, Patrick J. Maloney, Alameda, and Thomas S. Virsik; Law Office of Cressey H. Nakagawa and Cressey H. Nakagawa, for Defendants and Respondents Walter Holtz, Toni Holtz, Michael W. Morgan, John J. Elmore, Richard Elmore, Gary Foster, and Rodney Foster.Ronald and Laura Leimgruber, in propria persona, Defendants and Respondents.Larry Porter, in propria persona, Defendant and Respondent.Sutherland & Gerber and Lowell F. Sutherland for Defendants and Respondents Donald V. Barioni, Beach Line Citrus, LLC, Bixby Land Company, Robert S. Chell, Coast Imperial Partners, Donald L. Howard and Kimberlee A. Howard as trustees, Chrisman B. Jackson, Mary A. Jackson and Chrisman B. Jackson as trustees, John D. Jackson, Jr., individually and as trustee, Margaret M. Lillywhite and Daniel H. Lillywhite as trustees,

[134 Cal.Rptr.3d 287]

Daniel H. Lillywhite and Robin J. Lillywhite as trustees, Rosal Randes, Sali Properties, The Sinclair Ranches, LLC, TAC Land, LLC, and Charles H. Westmoreland and Alexa Westmoreland as trustees.Lewis Brisbois Bisgaard & Smith, Malissa Hathaway McKeith, Kara E. Granowitz, Kimberly A. Huangfu, Los Angeles, and Lisa W. Cooney, San Diego, for Defendant and Respondent Cuatro Del Mar.Lippe Gaffney Wagner and Keith G. Wagner, Sacramento; Caryn Mandelbaum in Amici Curiae for Planning and Conservation League and Environment Now on behalf of Respondents.Kenyon Yeates and Bill Yeates in Amici Curiae for Defenders of Wildlife, Audubon California, and Pacific Institute on behalf of Respondents.Youtz & Valdez and Shane Youtz; Law & Resource Planning Associates, Charles T. DuMars and Stephen Curtice in Amicus Curiae for Citizens for a Reliable Water Supply on behalf of Respondents.ROBIE, Acting P.J.

[201 Cal.App.4th 772] For the better part of 100 years, citizens of the American Southwest have been fighting over the right to water from the Colorado River. While the United States Supreme Court largely settled the interstate conflict over that water nearly 50 years ago, in Arizona v. California (1963) 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542, the court's resolution of the dispute between the states—which limited California's share of the river to far less than the state can use—ensured the fight would continue within the state for years to come.

[201 Cal.App.4th 773] And so it has. In 2003, three of the major stakeholders in California's share of the Colorado River—the Imperial Irrigation District (the Irrigation District), the Coachella Valley Water District (Coachella), and the Metropolitan Water District of Southern California (Metropolitan)—purported to end a long-running series of disputes over Colorado River water by signing the Quantification Settlement Agreement and (along with numerous other parties) various related agreements, the purpose of which was to “budget their portion of California's apportionment of Colorado River water among themselves” and to “provide a framework for conservation measures and water transfers for a period of up to 75 years.” If they thought they were buying peace, however, they were sorely mistaken, for a drop of water cannot do two things at once, and every drop the residents of coastal Southern California want to drink is one that cannot be used to sustain the endangered Salton Sea—which is what brings us to where we are today.

As will be shown, for years after the United States Supreme Court determined that California's share of the water from the Colorado River was to be only 4.4 million acre-feet during normal water years, California was nonetheless able to use much more than that because Arizona and Nevada were not yet able to use their full entitlements. (See, e.g., In re Bay–Delta etc. (2008) 43 Cal.4th 1143, 1153, 77 Cal.Rptr.3d 578, 184 P.3d 709.) During this period, vast quantities of irrigation return flow from the Irrigation District sustained the Salton Sea—that accidental body of water that owes its very existence to the quest for Colorado River water for the Imperial Valley. Eventually, however, pressure built on California to live within its annual 4.4 million acre-feet entitlement and on the Irrigation District to curb its wasteful water use. At the same time, the water needs of coastal Southern California continued to grow.

The Quantification Settlement Agreement and related agreements sought to

[134 Cal.Rptr.3d 288]

address these problems in part by making Colorado River water conserved within the Irrigation District's service area available for use by the denizens of coastal Southern California, from San Diego to Los Angeles, in exchange for money to fund the conservation efforts. But environmental interests fear that shipping more Colorado River water to the coast will doom the Salton Sea.

It is within the context of this fight that we are called on to review the judgments in three coordinated cases connected with the Quantification Settlement Agreement.1 In the first case— Imperial Irrigation District v. All Persons Interested—the Irrigation District sought a court determination that [201 Cal.App.4th 774] the Quantification Settlement Agreement and 12 related agreements were valid ( Code Civ. Proc., § 860 et seq.). (We will refer to this case as the validation action.) In the second case— County of Imperial v. Metropolitan Water District of Southern California et al.—the County of Imperial (the County)—taking a position at odds with the Irrigation District, which supplies all of the County's water—asserted various violations of the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq.) and the Water Code in connection with the Quantification Settlement Agreement. And in the third case— Protect our Water and Environmental Rights (POWER) v. Imperial Irrigation District et al.—an environmental organization (POWER) asserted CEQA violations in connection with the proposed transfer of conserved Colorado River water from the Irrigation District to the San Diego County Water Authority (San Diego), as well as Coachella and Metropolitan.2

In January 2010, the coordination trial judge found that one of the 12 agreements related to the Quantification Settlement Agreement—specifically, the Quantification Settlement Agreement Joint Powers Authority Creation and Funding Agreement (the Joint Powers Agreement)—was unconstitutional. The Joint Powers Agreement was supposed to provide the principal mechanism for ensuring the mitigation required for implementation of the Quantification Settlement Agreement was completely funded. According to the trial court, the State of California's “unconditional contractual obligation,” as part of the Joint Powers Agreement, to pay all of the mitigation costs beyond a particular amount for which the Irrigation District, Coachella, and San Diego were to be liable, was contrary to the appropriation requirement of article XVI, section 7 of the California Constitution, which provides that money may be drawn from the Treasury only through an appropriation enacted by the Legislature. In the trial court's view, the unconditional commitment of an uncertain amount of state funds contravened this appropriation requirement. Accordingly, the trial court entered a judgment in the validation action determining that all but one of the agreements the Irrigation District sought to validate—including the Quantification...

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