Siskiyou Cnty. Farm Bureau v. Dep't of Fish & Wildlife

Citation188 Cal.Rptr.3d 141,237 Cal.App.4th 411
Decision Date04 June 2015
Docket NumberC073735
CourtCalifornia Court of Appeals
PartiesSISKIYOU COUNTY FARM BUREAU, Plaintiff and Respondent, v. DEPARTMENT OF FISH AND WILDLIFE, Defendant and Appellant.

Kamala D. Harris, Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Randy L. Barrow, Deputy Attorney General, Gary Alexander, Ali A. Karaouni, and Deborah L. Barnes, Deputy Attorneys General, for Defendant and Appellant.

David R. Owen, Walnut Creek, for Law Professors as Amicus Curiae on behalf of Defendant and Appellant.

Shute, Mihaly & Weinberger, San Francisco, Ellison Folk and Amy J. Bricker ; Trout Unlimited and Brian J. Johnson for California Trout as Amici Curiae on behalf of Defendant and Appellant.

Earthjustice, Oakland, Trent W. Orr and Wendy S. Park, Avalon, for Karuk Tribe, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, and Klamath Riverkeeper as Amici Curiae on behalf of Defendant and Appellant.

Michael A.M. Lauffer, Chief Counsel, Andrew H. Sawyer, Assistant Chief Counsel, Carlos A. Mejia and Nicole L. Kuenzi, Staff Counsel for State Water Resources Control Board as Amicus Curiae on behalf of Defendant and Appellant.

Briscoe Ivester & Bazel and David Ivester, San Francisco; Law Office of Darrin W. Mercier and Darrin W. Mercier, Yreka, for Plaintiff and Respondent.

Somach, Simmons & Dunn and Daniel Kelly, Sacramento, for Northern California Water Association as Amicus Curiae for Plaintiff and Respondent.

Pacific Legal Foundation, Sacramento, M. Reed Hopper and Anthony L. François for Pacific Legal Foundation and California Cattlemen's Association as Amici Curiae on behalf of Plaintiff and Respondent.



The Department of Fish and Wildlife (Department) appeals from a judgment in favor of the Siskiyou County Farm Bureau (Farm Bureau), interpreting a statute requiring notification when an entity plans to “substantially divert” water from a river or stream.

We shall reverse because the trial court incorrectly found the statute, Fish and Game Code section 1602,1 to be ambiguous, and then resolved the perceived ambiguity in a manner inconsistent with the plain language of the statute.

Regardless of an entity's legal right to take water, such as for agricultural purposes, and regardless of whether the taking alters the streambed itself, section 1602, subdivision (a) unambiguously requires notification to the Department if an entity plans to “substantially divert” water. After notification, a statutory mechanism--arbitration followed by court review-- exists to resolve disputes about diversions. This notification requirement neither encroaches on any entity's water rights, nor impairs the powers and duties of the State Water Resources Control Board (Board), which has filed an amicus curiae brief fully supporting the Department's position.2

As we will explain, the trial court appears to have been led astray by a questionable and aborted enforcement policy statement issued by a single Department employee (the Stopher criteria), as well as the deluge of extrinsic material proffered by the Farm Bureau in its effort to demonstrate a latent ambiguity in the statute. As we have recently cautioned, although extrinsic evidence may reveal a latent ambiguity in a statute, such ambiguity must reside in the statutory language itself. It cannot exist in the abstract, or by ignoring the statutory language. (See Alameda County Flood Control & Water Conservation Dist. v. Department of Water Resources (2013) 213 Cal.App.4th 1163, 1179-1180, 1188-1190, 1195, 152 Cal.Rptr.3d 845 (Alameda ).) Here, the extrinsic evidence reveals no ambiguity in the statute: The term “divert” had a long-established meaning in the context of water law before enactment of the statute, and we presume the Legislature was aware of that meaning when it used divert as it did in section 1602.

If the Farm Bureau and allied amici curiae believe the statute as written reflects poor public policy, a remedy lies “on the other side of Tenth Street, in the halls of the Legislature.” (Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 711, 252 Cal.Rptr. 613.)


The Farm Bureau filed a complaint for declaratory relief alleging that for over a century “ranchers and farmers in Siskiyou County have extracted water from streams and rivers to irrigate crops and pastures, to water livestock, and for use in their homes and businesses. Not until now, some fifty years after the legislature adopted ... sections 1600 et seq., has [the Department] asserted that [such extraction] requires compliance with section 1602 regardless of whether there is any alteration of a river, stream, or lake.” Farmers and ranchers either had to comply with this new interpretation or risk “civil and criminal prosecution. For this reason, [the Farm Bureau] brings this action for declaratory relief to clarify the rights and duties of its members under ... section 1602 who do not alter the streambed in exercising their water rights.” The purportedly new interpretation referenced by the complaint was related to but not limited by the Stopher criteria, which presumed that any diversion of water within the relevant watershed was a substantial diversion within the meaning of section 1602.

The Department unsuccessfully moved for judgment on the pleadings, and the parties then contested whether or not the statute--as proposed to be applied--was ambiguous. The trial court found it was.

To resolve the question of statutory ambiguity, the trial court considered extrinsic evidence and resolved the purported ambiguity against the Department, which timely appealed from a judgment prohibiting it from “bringing enforcement action against agricultural water diverters for failing to notify the department of the diverter's intention to lawfully exercise his water right absent alteration to the bed, bank, or stream.”


The trial court found the statute's plain meaning supported the Department's view that the word ‘divert‘ encompassed diversions that did not alter the streambed itself, but found there was a latent ambiguity and applying the plain meaning would lead to absurd results, raise doubts about the constitutionality of the statute, and cause a conflict between the Department's duties and the Board's duties.

We agree with the trial court that the plain meaning of the statute supports the Department's position. Our agreement, however, ends there. Although the Department's interpretation of the statute plausibly accounts for the statutory language, the Farm Bureau has not proffered a candidate of meaning that also plausibly accounts for the statutory language, and therefore has failed to show an ambiguity in the statute when the rules governing statutory ambiguity are correctly applied. None of the extrinsic evidence tendered by the Farm Bureau changes this conclusion. We reject the trial court's conclusion that the absurd result or constitutional doubt rules require departing from the plain meaning of the statute, as well as its finding that application of section 1602's plain meaning would allow the Department to intrude into the Board's bailiwick.

We shall reverse with directions to enter judgment in favor of the Department.

IThe Meaning of ‘Divert‘ in Section 1602

Section 1602 now provides in relevant part:

“An entity may not substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake, unless all of the following occur [ (listing notification and other requirements.) ] (§ 1602, subd. (a).)

The trial court found the plain meaning of divert as used in section 1602 was broad and supported the Department's position herein. Yet the trial court then found a latent ambiguity in the term. As we now explain, there is no semantic ambiguity as posited by the Farm Bureau, latent or otherwise.

First, we review some basic principles of California water law, to establish the background for the specific legislation at issue. (Pt. 1A, post. ) Next, we briefly describe the devastating effect of the gold rush on California's rivers and streams, again to provide background for the relevant legislation. (Pt. 1B, post. ) We then describe the history of section 1602. (Pt. 1C, post. ) We then discuss early interpretations of section 1602. (Pt. 1D, post. ) Finally, we consider whether any proffered extrinsic evidence establishes an alternative equally plausible candidate of meaning of divert as used in section 1602, and conclude no such alternative meaning has been demonstrated. (Pt. 1E, post. )

A. Basic California Water Law Principles

Because the trial court spent much time on basic water law principles which are assumed by the parties, we provide the reader with a brief summary, taken from a recent case:

“Ownership of California's water is vested generally in the state's residents, but individuals and entities can acquire ‘water rights,’ the right to divert water from its natural course for public or private use. [Citations.] California maintains a ‘dual system’ of water rights, which distinguishes between the rights of ‘riparian’ users, those who possess water rights by virtue of owning the land by or through which flowing water passes, and ‘appropriators,’ those who hold the right to divert such water for use on noncontiguous lands. [Citation.] For historical reasons, California further subdivides appropriators into those whose water rights were established before and after 1914. Post–1914 appropriators may possess water rights only through a permit or license issued by the Board, and their rights are circumscribed by the terms of the permit or license....
“The nature of the water rights held by riparian users and appropriators

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