County Farm Bureau wins lawsuit

John Bowman, GateHouse News Service

Siskiyou County Superior Court Judge Karen Dixon ruled on Dec. 24 that the California Department of Fish and Game had overstepped its authority.

The Siskiyou County Farm Bureau filed suit against CDFG last year on behalf of its members who irrigate on the Scott and Shasta rivers.

“This ruling establishes an important, statewide precedent,” Siskiyou County Farm Bureau President Jeff Fowle said. “There is no doubt that if CDFG had been able to expand its authority here, it would have tried to regulate water rights elsewhere in the state. This decision reaffirms that water rights are administered by the courts and State Water Resources Control Board. Now, we can turn our attention to finding collaborative ways to improve conditions for fish while maintaining the sustainability of our farms and ranches.”

The case centered on Section 1602 of the California Fish and Game Code – established in 1961 – which states, “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 the entity notifies CDFG according to specific procedures, pays applicable fees and obtains the agency’s approval.

Permits have been required under the section for gravel mining, construction of push-up dams and other projects that physically alter streambeds or change the course of streams or rivers.

According to court documents, before the coho salmon was listed as endangered by the California Endangered Species Act, CDFG did not apply the provisions of 1602 to the act of exercising a water right when physical streambed alteration was not involved. However, in 2005, CDFG began notifying landowners along the Scott and Shasta rivers that they would need to notify CDFG before using existing irrigation headgates or pumps as provided for in their adjudicated water right. If the exercise of the right was deemed by the agency to result in “substantially diverting” the stream’s flow, the water user could be required to obtain a 1602 permit, including applicable fees.

Ultimately the decision hinged on the interpretation of the phrase “substantially divert the natural flow,” found in Section 1602. One interpretation would be that “divert” means to change the manner in which water naturally flows within the watercourse. The other interpretation would relate to the act of diverting a portion of a stream’s flow into a ditch or pump station for the use of irrigation.

According to Judge Dixon’s ruling, “The primary rule of statutory interpretation is that a statute must be interpreted so as to effectuate the probable intent of the Legislature ... The court finds that the Legislature did not intend to include the use of water diverted pursuant to a water right for an agricultural purpose within the scope of the statute.”

Therefore, Dixon states:

• “The court finds the Fish and Game Code 1602 does not require notification of the act of extracting water pursuant to a valid water right where there is no alteration to bed, bank or stream;

• “The Defendant Department of Fish and Game is enjoined from bringing enforcement action against agricultural water diverters for failing to notify the department of the diverter’s intention to exercise his water right absent alteration to the bed, bank or stream; and

• “Plaintiffs (Siskiyou County Farm Bureau) shall recover its cost of suit and attorney’s fees.”

In its lawsuit, the county farm bureau said the requirement would have been a “fundamental change” in the application of the code that would have jeopardized both water rights and property rights for farmers and ranchers.

“We understand that CDFG wants to protect salmon in the rivers, but it has many other ways to do that already,” said Rex Houghton, the immediate past president of the county farm bureau. “The outcome does not change the notification requirement for activity that physically alters a streambed, but it is important to establish that CDFG can’t require a permit for farmers simply to exercise their water rights.”

Because of the statewide implications of the case, the Siskiyou County Farm Bureau received support for the lawsuit from the California Farm Bureau Federation and county farm bureaus throughout the state, as well as several local agricultural organizations.

The Siskiyou County CattleWomen contributed $5,000 to the county farm bureau’s effort.

Before the decision, Gail Jenner, president of the Siskiyou County CattleWomen said, “Little do most consumers realize that the backbone of this country, which is agriculture, is cracking under the weight of over-reaching regulations, increased fees and delays, and intimidation by state and federal agencies, in addition to rising costs and expenses.”

The Siskiyou County Cattlemen also contributed $5,000. Cattlemen President Cliff Munson said, “Our legislature passes bills, and three or four individuals create a set of regulations, and those regulations are then interpreted by whoever is in charge of our various state agencies. We have reached a point where regulation and interpretation is destroying our way of life.”

Attorney Darrin Mercier of Yreka argued the case on behalf of the county farm bureau. He said the ruling has broad implications that go far beyond the farm bureau’s lawsuit and the interpretation of the 1602 statute.

“The ruling essentially says that CDFG lacks the authority to regulate or adjudicate water rights,” Mercier said. He added, “This shows that there has to be a balanced approach to species protection and resource use.”

CDFG Senior Policy Advisor (and Region 1 Lake and Streambed Alteration Program supervisor from 1999 to 2008) Mark Stopher said, “We have not yet seen the decision. Until we take the time to carefully review the order we will not comment on either the outcome or any further actions we may consider.”