The county’s aggressive litigation strategy involved retention of one of the nation’s preeminent natural resource lawyers to advance its legal argument that the common law Public Trust Doctrine does not apply to the county’s issuance of ministerial well construction permits in Scott Valley, according to a press release.

In July of 2019, the County of Siskiyou entered into a $1.7 million settlement agreement with the Environmental Law Foundation, Pacific Coast Federation of Fisherman’s Associations, and Institute of Fisheries Resources, to settle the county’s payment of attorneys’ fees and costs in the case of Environmental Law Foundation, et al v. State Water Resources Control Board and County of Siskiyou (“ELF”), a Writ of Mandate case that the county aggressively litigated for close to a decade, and ultimately lost.

The county’s aggressive litigation strategy involved retention of one of the nation’s preeminent natural resource lawyers to advance its legal argument that the common law Public Trust Doctrine does not apply to the county’s issuance of ministerial well construction permits in Scott Valley, according to a press release. The Doctrine requires that the state (and state agencies like the State Water Resources Control Board) take certain public uses in navigable waters into account before allocating water resources in a manner that substantially impairs those uses.

The county’s intensive legal efforts involved battles that ascended and descended through California’s judicial system, including two petitions for review to the California Supreme Court, both of which were denied.

Ultimately, the county’s exhaustive legal efforts did not persuade the state’s courts, and the county sustained an adverse legal decision that the county, as a political subdivision of the state, has an obligation to consider impacts to public trust resources in the Scott River – such as navigation, recreation and fisheries – whenever the county issues a permit for a new well that, through the extraction of groundwater interconnected with the Scott River’s surface waters, may substantially impair the Scott River’s public trust resources.

This decision, which has statewide implications, will likely increase future environmental litigation for local agencies across California, and it came at a local cost of close to $2.4 million, when accounting for the county’s own attorney fees.

While the county is disappointed with the outcome of the litigation, it is committed ti meeting its newly identified public trust obligation (and powers). County staff has been working toward implementation of the decision in its well permitting process and staff believes that the Flood District’s development of Groundwater Sustainability Plans (GSPs) in the Scott and Shasta Valley groundwater basins presents an opportunity for the Flood District and the county to partner to address the county’s public trust duty at a programmatic level.

In the interim, and prior to the adoption of GSPs, county staff is also working to identify other interim solutions for obtaining intervening data about the Scott and Shasta Valley basins’ hydrology to inform individual well permitting decisions, starting with the Scott River watershed.

The county continues to be committed to the health of our local fisheries and to collaborative local solutions. As part of its settlement negotiation efforts in the ELF case, the County offered the Environmental Law Foundation a settlement package that included $200,000 toward habitat restoration projects in the Scott River to benefit fisheries. The Environmental Law Foundation declined this offer in favor of cash.

Aggressive litigation strategies generate money for metropolitan lawyers, and siphon scarce funds from rural communities in conflict. As the county moves forward in what could become an increasingly litigious environment, the county encourages all stakeholders, and all persons who hold all manner of conflicting points of view, to take a moment to talk, to take a moment to listen, and to make your first impulse one to work with your neighbor or your local official to solve difficult natural resource problems locally and collaboratively. There has never been a more important time for our rural community to start to invest our collective resources in timely solutions, rather than the legal invoices of Bay Area lawyers.