Santa Margarita Mut. W. Co. v. State Water Rights Bd.

• Decision Date: 08 August 1958
• Docket Number: No. 2147-SD.,2147-SD.
• Citation: 165 F. Supp. 870
• Court: U.S. District Court — Southern District of California
• Parties: SANTA MARGARITA MUTUAL WATER COMPANY et al., Petitioners, v. STATE WATER RIGHTS BOARD OF the STATE OF CALIFORNIA, Respondents.

165 F. Supp. 870

SANTA MARGARITA MUTUAL WATER COMPANY et al., Petitioners, v. STATE WATER RIGHTS BOARD OF the STATE OF CALIFORNIA, Respondents.

No. 2147-SD.

United States District Court S. D. California, S. D.

August 8, 1958.

COPYRIGHT MATERIAL OMITTED

William Veeder, Atty., Dept. of Justice, San Diego, Cal., for U. S.

W. B. Dennis, Fallbrook, Cal., for Santa Margarita Mut. Water Co.

Franz Sachse, Fallbrook, Cal., for Fallbrook Public Utility Dist.

JAMES M. CARTER, District Judge.

The United States, last landowner on the stream, claims riparian, prescription and appropriative rights. Our present problem concerns only those alleged appropriative rights originating after the government's acquisition of the reservation beginning in 1942. As to these alleged rights, the United States has generally used "self help" and with the exception of one application #12576 filed with the Division of Water Resources on June 30, 1948, by a United States naval officer, and amendments thereto, no attempt has been made by the United States to comply with the statutory state procedures for the appropriation of water.

The State Water Rights Board held hearings on the applications of Fallbrook P. U. D., Santa Margarita Mutual Water Company and the United States application. The United States appeared specially and objected to the jurisdiction of the Board, and thereafter did not participate in the hearings.

On April 10, 1958 the State Water Rights Board rendered written opinions, findings and orders. It found there was unappropriated water; that the United States had in substance abandoned its application. It determined that the United States application should be rejected, that the Santa Margarita application be rejected and Fallbrook's applications be granted.

The Removed Mandamus Action

An action denominated as a "Petition for Alternate Writ of Mandate" has been removed to this court by the United States. The court, sua sponte, considers the question of remand to the State court.

The parties to the mandamus proceeding filed in the Superior Court are Santa Margarita Mutual Water Company, a California corporation, Rainbow Municipal Water District, a municipal corporation, Guy C. Earl Jr., and Herbert Hamm, petitioners and State Water Rights Board of the State of California, respondent.

Sec. 1360 of the West's Ann.California Water Code as amended in 1957 expressly provides for a petition for a writ of mandate in the Superior Court of the state "to inquire into the validity of the action of the board." The California Supreme Court in Temescal Water Co. v. Dept. of Public Works, 1955, 44 Cal.2d 90, 280 P.2d 1, 11, has held that "The proper remedy for reviewing the issuance of a permit despite protest upon the ground of the unavailability of unappropriated water is by a writ of mandate pursuant to section 1094.5 of the Code of Civil Procedure." 44 Cal.2d at page 106.

The Temescal case involved a permit issued by the Division of Water Resources of the Department of Public Works of California. California in 1956, abolished the Division of Water Resources and the office of the State Engineer, but their functions were preserved and divided between a newly created Department of Water Resources, (West's Ann.Cal.Water Code, §§ 120-163) and a newly created State Water Rights Board (West's Ann. Cal.Water Code §§ 175-188). The State Water Rights Board now performs the functions formerly performed by the Division of Water Resources, referred to in the Temescal case, supra.

We conclude that the law of the Temescal case will apply to the new State Water Rights Board and that the mandamus action under Sec. 1360, West's Ann.Cal.Water Code, is the proper remedy to inquire into the validity of actions of the State Water Rights Board.

As we read the Temescal case, supra, and note the reliance on Sec. 1094.5, West's Ann.California Code of Civil Procedure, and the cases cited at page 105 of 44 Cal.2d, at page 10 of 280 P.2d concerning review of actions by state administrative agencies, the trial in the Superior Court is a trial de novo or the substantial equivalent thereof. Laisne v. State Board of Optometry, 1942, 19 Cal.2d 831, 845, 123 P.2d 457, is cited to this effect.

However tried, the issues to be determined by the state agencies, are:

(1) was there available in the stream unappropriated water?

(2) what was the priority of the various applications?

(3) which application should be granted and which denied?

(4) To whom should permits issue?

(5) All this to be done without prejudice to existing vested rights, riparian, prescriptive, appropriative or otherwise.

If the case is not remanded and is tried in this court, this court would be required to proceed in the matter in exactly the same manner in which the state court would be required to proceed.

But West's Ann.California Code of Civil Procedure, Sec. 1094.5 provides that the judgment of the Superior Court on review "shall not limit or control in any way the discretion legally vested in the respondent," i. e. the State Water Rights Board, and this notwithstanding the earlier provision in the same section that when the Boards decision is set aside, the Superior Court "may order the reconsideration of the case in the light of the court's opinion and judgment and may order respondent" (the Board) "to take such further action as is specially enjoined upon it by law. * * *" (Emphasis added.)

This is not an objection to remand, but demonstrates that the State Water Rights Board must make the decisions although they must make correct ones. The state legislation has delegated this power to the Board.

Reference is made to the Memorandum being simultaneously filed in United States v. Fallbrook Public Utility District, D.C., 165 F.Supp. 806, where this problem is discussed in detail.

Title of the Cause — Mandamus

This court has no original jurisdiction in mandamus and there are numerous authorities to this effect, Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622; Updegraff v. Talbott, 4 Cir., 1955, 221 F.2d 342; Knapp v. Lake Shore & M. S. Ry. Co., 1905, 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870. However, the court will look at the substance of the matter and not to form. For example, if in reality the removed case sets forth a cause for equitable relief, State of Washington ex rel. City of Seattle v. Pacific Tel. & Tel. Co., D.C.Wash.1924, 1 F.2d 327; North Carolina Public Service Co. v. Southern Power Co., 4 Cir., 282 F. 837, 33 A.L.R. 626, certiorari dismissed 263 U.S. 508, 44 S.Ct. 164, 68 L.Ed. 413, this court would not be barred by the title of the action alone from hearing the cause. See, Chicago, R. I. & P. R. Co. v. Stude, 1954, 346 U.S. 574, 74 S.Ct. 290, 98 L.Ed. 317; State of Louisiana ex rel. Glassell v. Shell Petroleum Corp., D.C.La.1937, 20 F. Supp. 795, 797. We are not particularly concerned about this point.

Other Problems

It would of course have been impossible to have removed the State Water Rights Board hearing in the first instance, to the Federal court, since the Board is non-judicial in character. But when an appeal is taken from such a hearing, or as here, a proceeding in mandamus is instituted to try the case "de novo" in the superior court, a state action is then "pending," City of Terre Haute v. Evansville & T. H. R. Co., C.C., 106 F. 545; Fuller v. Colfax County, C.C., 14 F. 177.

The mere fact that the action would be awkward to try in the Federal court, or would require reframing of the petition, is not in itself a ground for refusing to entertain the case, nor for remanding it to the state court. Commissioners of Road Improvement Dist. No. 2 of Lafayette County, Ark. v. St. Louis Southwestern R. Co., 1922, 257 U.S. 547, 42 S.Ct. 250, 66 L.Ed. 364.

If the case were to be tried in the Federal court or in the state court, probably all the interested parties could be brought into the proceedings. Fallbrook Public Utility District (whose applications were granted and to whom permits were ordered issued) has not been made a party. The state of California, as such, is not a party, although the State Water Rights Board has been designated as a party.

If the case is tried in the Federal court, it would also be possible to realign the parties, and on the realignment, the State Water Rights Board, State of California and the Fallbrook Public Utility District would probably be aligned on one side of the case and the other unsuccessful applicants and objectors on the other side.

Bases for Remand

Notwithstanding the apparent ease with which we have hurdled some of the obvious objections to retaining the case in the Federal court, there are other basic obstacles that prevent the retention of this case in the Federal court, and require its remand.

(1) The United States Is Not a Party to the Mandamus Proceedings

The United States is not a named party to the mandamus proceedings. It had previously, on June 30, 1948, filed an application to appropriate water, No. 12576, the application being in the name of the United States Navy Department. On December 13, 1948, an amended application was filed. On July 13, 1949, the application was amended. The United States about August 12, 1957, appeared specially at the hearing before the State Water Rights Board and objected to the jurisdiction of that Board.

Thus, the United States initiated the proceedings on application No. 12576, which were set for hearing before the State Water Rights Board in August 1957. It was a party to this administrative proceedings. It is difficult to understand how the United States could then appear specially and question the jurisdiction of the Board.

Various alternatives present themselves. (1) The United States by its special appearance, in effect disclaimed that the prior application was filed in its behalf, or (2) if it claimed the application as its own, then it in substance abandoned it. It is difficult to see how the United States can claim rights under application No. 12576 and...