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E. Stewart Johnston (Bar #158651)
1363 West Main Street
Santa Maria, CA 93458
(805) 680-9777 (Phone)
stewartjohnston@mac.com
Robert E. Dougherty (Bar # 41317)
Covington & Crowe, LLP
1131 West Sixth Street
Ontario, CA 91762
(909) 983-9393 (Phone)
(909) 391-6762 (Fax)
rdougherty@covcrowe.com
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Richard Zimmer (Bar #107263)
Clifford and Brown
1430 Truxtun Ave, Suite 900
Bakersfield, CA 93301-5230
(661) 322-6023 (Phone)
(661) 322-3508 (Fax)
rzimmer@clifford-brownlaw.com
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Attorneys for Landowner Group Parties (LOG)
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
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SANTA MARIA VALLEY WATER
CONSERVATION DISTRICT
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Plaintiff,
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vs.
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CITY OF SANTA MARIA, et al.,
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Defendants
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____________________________________ )
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AND RELATED CROSS-ACTIONS
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CONSOLIDATED FOR ALL PURPOSES
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Santa Maria Groundwater Litigation
Lead Case No. 1-97-CV770214
[Consolidated With Case Numbers:
CV784900 CV784921 CV784926
CV785509 CV785511 CV785515
CV785522 CV785936 CV786971
CV787150 CV787151 CV787152
CV790597 CV790599 CV790803
CV 790741
San Luis Obispo County Superior Court
CV790597 CV790599 CV790803]
Assigned For All Purposes To Judge Komar
LOG Reply to Purveyor Trial Brief
For Phase 5
Date: July 17, 2006
Time: 9:00 AM
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Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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INTRODUCTION
The Public Water Producers ("Purveyors") assert, without appropriate legal or
factual basis, that the landowner quiet title actions should be dismissed. The Purveyors
claim that declaratory relief is the only proper cause of action to resolve this lawsuit. The
only declaratory relief cause of action being asserted in this lawsuit is asserted by the
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Purveyors. Nevertheless, the Purveyors wrongfully attempt to shift to the landowner
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parties the burden of proving the declaratory relief claims the Purveyors are asserting.
The Purveyors improperly claim that only Twitchell participants have the
exclusive right to Twitchell yield.
Apparently pursuant to their declaratory relief causes of action, the Purveyors
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also claim that rights in the basins several supply sources should be quantified and
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declared. However, they failed to present facts and expert testimony in this lawsuit to
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prove the nature and extent of such rights.
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The Purveyors seek imposition of a physical solution. However, they presented
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no evidence to support injunctive relief such as a physical solution. Additionally, they
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failed to properly recognize priority water rights.
The Purveyors claim that a comprehensive judgment should be entered
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adjudicating all interests of all water users in the basin. They assert that non-parties
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have no rights. This lawsuit never was intended to include all water users in the Santa
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Maria groundwater basin. Further, insufficient evidence was presented by the Purveyors
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to comprehensively adjudicate all interests of all users and potential users in the basin.
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Glaringly, the Purveyors have carefully selected and taken out of context
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statements and dictum in groundwater case law which has been evolving over the past
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one hundred years. They failed in any significant way to recognize and rely upon the
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most recent articulation of California groundwater rights in City of Barstow v. Mojave
Water Agency (2002) 23 C.4th 1224. (“Mojave”) This case reviewed voluminous prior
Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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groundwater law and in great detail carefully explained the California priority water law
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system, prescriptive rights, attempts to equitably apportion water rights and attempts by
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stipulating parties to impose the terms and effects of their stipulation on non-stipulating
parties. The Mojave case is very similar to the case before this Court in terms of what
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the Purveyors are attempting to accomplish. Examination of the court’s decision in
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Mojave clearly shows that the Purveyors’ proposed approach in this case is based upon
a misconstruction of California groundwater law.
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PURVEYORS’ ARGUMENTS
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Claim That Declaratory Relief is the Appropriate Remedy and Quiet Title Claims Should
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be Dismissed.
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The Purveyors continue to assert that the Court must determine rights in this
case by declaratory relief in lieu of quiet title. They suggest that quiet title is not
appropriate unless it quiets title as against all the world. A simple comparison of
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California Civil Code §732.010 (which provides for a limited quiet title action against
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"persons having adverse claims to the title of the plaintiff against which determination is
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sought" with §762.060(a) which provides for quiet title against "all persons unknown
claiming any legal equitable right, title, state, lien or interest" proves their assertions are
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without any merit. Where relief is sought pursuant to section 732.010, only the limited
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parties against whom quiet title is requested must be joined.
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The Purveyors cite Taliaferro v. Riddle (1958) 166 Cal.App.2d 124 in support of
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their position. In that case, the plaintiffs sought a judgment against a person who was
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not a named defendant. Clearly, the Talaferro plaintiff was pursuing quiet title under
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what is now C.Civ.P. §762.060. LOG is seeking relief pursuant to section 732.010
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Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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which requires limited joinder of parties. Accordingly, Talaferro is not applicable to this
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case.
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Quiet title has been used as against limited parties in the water context for over a
hundred years. The Purveyors cannot force the landowners to claim more extensive
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relief than that which they have requested, nor force them to prove what is not
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necessary for the limited relief they have requested. The landowners have properly
requested quiet title to pump and reasonably use groundwater on their properties as
against the named cross-defendant parties. They are not seeking quantification of water
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rights nor a complete adjudication of all rights as to all water users in the Santa Maria
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basin. By contrast, the Purveyors are requesting more extensive relief based upon their
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declaratory relief causes of action. They cannot properly force the landowners to prove
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the declaratory relief actions being asserted by the Purveyors. The Purveyors had the
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burden to prove their declaratory relief claims, if at all, in Phase 4. They failed to do so.
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Claim That Landowners have Burden of Proving Self-Help.
Review of the Mojave case reveals this assertion is without any merit. The
Mojave Court states,
"…… even these acquired rights, however, may be interrupted without resort to
the legal process if the owners engage in self-help and retain their rights by
continuing to pump non-surplus waters.
Mojave 1242
The Mojave Court further states:
"as against potential Purveyors, the Court noted that the five year period for
establishing prescriptive rights to non-surplus water may be interrupted by the
overlying owners' pumping of their non-surplus water."
Mojave 1248
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Additionally, the Mojave Court states:
"however, overlying pumpers are not under an affirmative duty to adjudicate their
groundwater rights, because they retain them by pumping."
Mojave 1253
Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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On the same page the Court states:
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"the Court of Appeal properly recognized that the Cardozo appellants retained
their overlying rights by pumping and that no claim of prescription had been
asserted to reduce those retained overlying rights."
Mojave 1253
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It is clear that pumping by landowners interrupts the five years of continuous
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concurrent elements necessary to prove prescription. The Mojave case does not
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discuss or sanction a so-called “quantified overlying right” created by the Purveyors. In
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an attempt to invent this so-called right, the Purveyors reach back into cases which were
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decided during the evolution of groundwater law. They take small statements and/or
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dictum out of context in an attempt to create a correlative type quantified right which
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would extinguish the common law overlying right and replace it with a new kind of right
of their own invention. However, their approach is not consistent with the legal concept
of self-help.
Self-help is an alternate means of interrupting the continuous elements of
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prescription whereby the true owner acts in such a way that nullifies the acts of the
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trespassor without resort to the legal process. The self-help discussion by the Supreme
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Court in Mojave does not support an alleged Quantified Overlying Right as proposed by
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the Purveyors. Mojave affirms that self-help, as traditionally understood, interrupts the
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running of an adverse possession claim and defeats the claim entirely.
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LOG is claiming self-help in the traditional sense, as discussed in Mojave, and not in the
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sense that self help as a form of mutual prescription was being discussed in the
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‘Pasadena case.. LOG is claiming self-help as it has traditionally operated in common
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law.
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Mojave replaces and or nullifies self-help, as traditionally understood in water cases, as
Nothing suggests that the mutual prescription type of self help discussed in
Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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an alternate to legal action to protect a water right. The Purveyors have cited no
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authority indicating that traditional self-help in no longer operative. Moreover, mutual
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prescription has been applied only in cases where elements of prescription have been
stipulated to by all parties. No such stipulation exists in this case. Finally, mutual
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prescription style self help cannot possibly operate either legally and or factually in this
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case because no prescription can occur against public entities such as the Purveyors.
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In an attempt to create a "quantified overlying right”, the Purveyors use dictum
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and statements from case law which has evolved during the evolution of groundwater
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law. They take this dictum out of context and attempt to create a "quantified overlying
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right". Once again, the California Supreme Court's decision in Mojave does not support
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this construction. Their attempt to create a quantified right begins with Pasadena, a
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case that involved mutual prescription and an attempt by the Court to equitably apportion
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rights based upon the theory that all parties were pumping during a period of overdraft.
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In this case, mutual prescription does not apply since the Purveyors are public
entities against which prescription cannot apply. Likewise, the Mojave Court very clearly
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stated that equitable apportionment is inappropriate as between parties with different
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priority rights under the California groundwater priority water right system. For example,
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the Mojave Court states that
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"…… no California Court has ever applied the doctrine of equitable
apportionment to involve an intrastate water conflict".
Mojave Note 12
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The Mojave Court further states
"case law simply does not support applying an equitable apportionment to water
use claims unless all claimants have correlative rights; …”
Mojave 1248
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Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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Claim That Landowners Must Prove Reasonable and Beneficial Use
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The Purveyors claim that the landowners must prove reasonable beneficial use
of water. Article 10, Section 2 of the California Constitution clearly gives the Purveyors
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the right to stop unreasonable use of water. However, there was no proof by the
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Purveyors at any stage of these proceedings of any unreasonable use of water. Proof in
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Phase 3 was to the contrary. Additionally, historical records and evidence before the
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Court indicate that water used for farming, is a reasonable use of water.
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Claim That Twitchell Participants Have Exclusive Rights to the Twitchell Yield.
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This claim was factually and legally argued at length in Phase IV. One cannot
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create a right that one does not have simply by entering into a contract with a third party
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claiming to own someone else's rights. The Purveyors claim the Conservation District
conveyed rights to the Twitchell yield to the stipulating parties. The Santa Maria Valley
Water Conservation District pointed out the obvious stating recently
"to the extent that the public water suppliers are asserting that the conservation
district, by entering into the stipulation conveyed Twitchell project water rights to
the Public Water Suppliers or other parties, the Conservation District simply
desires to point out to the Court that it has no right to convey that which it
does not own".
Conservation District filing of March 14, 2006
This Court correctly concluded in Phase 4 that the Twitchell participants do not have the
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exclusive right to Twitchell yield.
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Claim That The Parties' Respective Rights in the Basin's Several Supplies Should be
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Quantified and Declared.
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The Purveyors clearly had the right, pursuant to their declaratory relief causes of
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action, to request that rights to various water supplies should be quantified and declared.
However, they had the burden of proof on these issues. They failed to prove these
issues based on the Tulare standard of showing all water uses in the basin and
Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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quantifying the same. Further, they have defined "native supply" in the same way they
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did in their Stipulation which is inconsistent with case law. They failed to prove their right
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to Twitchell yield and they failed to prove any net augmentation to the water supply
caused by return flows in a time of overdraft.
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All parties agree that the Purveyors would have a priority right to water imported
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during a time of long term destructive overdraft. However, there was no proof in this
case that water was imported during a period of long-term destructive overdraft. Further,
net augmentation was not shown.
Claim that Imposition of Physical Solution is Authorized.
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As argued heretofore in great detail, a physical solution does not exist on its own
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without a proper cause of action which supports the basis for this type of injunctive relief.
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No such cause of action has been proved. Even if an appropriate cause of action was
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proved, a physical solution only is appropriate where there is a shortage of water and
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where the physical solution is being used in an attempt to rectify the shortage. Most
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importantly, the physical solution cannot change the priorities of the water rights holders.
In this case, the Purveyors are in essence attempting to create correlative equal
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water rights as between the Purveyors and the landowners. The quantified overlying
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right is an attempt to do this. Further, they suggest that a physical solution should
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equitably apportion water rights as between the water users in the Santa Maria water
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basin.
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The facts in the present case are very similar to those in the Mojave case. In
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Mojave, various parties stipulated to a physical solution, as some of the parties did in
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this case. As in Mojave, the Purveyors in this case now are attempting to impose the
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liabilities and duties of that physical solution (and not the benefits) on the non-stipulating
parties in this case. The California Supreme Court in the Mojave case clearly articulated
that this is not appropriate.
Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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"We agree that, within limits, a trial court may use its equitable powers to
implement a physical solution provided they protect the one enjoying paramount
rights …… The Court observed that a physical solution is generally a practical
remedy that does not affect vested rights".
Mojave 1249-1250 (citations omitted)
Thus, although it is clear that a trial court may impose a physical solution to
achieve a practical allocation of water to competing interests, the solution's
general purpose simply cannot ignore the priority rights of the parties asserting
them. In ordering a physical solution, therefore, a Court may neither change
priorities among the water rights holders nor eliminate vested rights in applying
the solution without first considering them in a relation to the reasonable use
doctrine. Respondents unpersuasively argue for imposition of an equitable
physical solution that disregards priority legal water rights.
Mojave 1250 (citations omitted)
Respondents simply failed to produce compelling authority for their argument that
courts can avoid prioritizing water rights and instead allocate water based entirely
on equitable principles.
Mojave 1251
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Claim that the Judgment Should Adjudicate all Interests of All Users
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The stipulating parties entered into a contract with one another setting forth the
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nature and extent of their groundwater rights as between each other. In doing so, they
define terms to be used for purposes of enforcement of their contract, which do not
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parallel common law groundwater rights as set forth in case law. The parties are free to
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do this. As the Court noted,
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"Thus, we protect the rights of the Cardozo Appellants while also respecting the
rights of the stipulating parties to agree to a judgment which waives or alters their
water rights in a manner which they believe to be in their best interest."
Mojave 1252
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Essentially, they could waive their existing water rights and agree to be bound by
the terms of the stipulated judgment, so long as the rights of the non-stipulating
parties were respected. The Court of Appeal directed the trial court to exclude
the Cardozo appellants from the judgment and to grant them injunctive relief
protecting their overlying water rights to the current and prospective
reasonable and beneficial need for water on their respective properties"
Mojave 1252-1253
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The landowners in this case are not parties to the Stipulation and not boud by the terms
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thereof. The landowners in this case, as in Mojave, are requesting that this Court quiet
Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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title to their appurtenant right to pump and reasonably use groundwater on the properties
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in rem before the Court and to grant them injunctive relief protecting their overlying
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water rights to the current and prospective reasonable and beneficial need for
water on their respective properties.
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Based upon the foregoing, it is clear that parties can contractually alter their
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groundwater rights by entering into a contract with one another. However, it is equally
clear that the contract provisions cannot be asserted against non-stipulating or noncontracting parties.
The judgment in this case should not blur the lines between the rights arising out
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of the Settlement Stipulation with the rights of non-stipulating parties arising out of the
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common law. The stipulating parties will be governed by the definitions, terms and
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interpretation of the Stipulation to which they agreed. The non-stipulating parties will be
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governed by California groundwater law and the rulings based thereon by this Court.
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The Stipulation is not a Restatement of California groundwater law and cannot, and
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should not, be used in any manner either by incorporation into any judgment or
otherwise to set forth rights of non-stipulating parties. The judgment in this case, to the
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extent that it mentions the Stipulation at all, should simply set forth that the rights of the
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non-stipulating parties are governed by contract (stipulation) between them and that the
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rights of the non-stipulating parties are governed by the Court's judgment.
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Claim That Rights, If Any, of Landowners Who have Failed to Demonstrate Self Help
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During The Prescriptive Period Are Junior
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The Purveyors request pursuant to their declaratory relief claims that all rights of
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all water users in the SMWB be declared. However, clearly this relief cannot be given
since all water users in the SMWB are not, and never were, parties to this action.
Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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The Purveyors further assert that unexercised overlying rights during the
prescriptive period should be deprioritized. This requested relief would have the effect of
extinguishing past unexercised overlying rights. The Purveyors point out that the court
in Wright reversed a lower court finding that exercised overlying rights had a priority over
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unexercised rights.. The Wright court found that the trial court improperly limited the
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unexercised overlying rights of landowners without notice. The Purveyors cite no
authority for their claim that unexercised overlying rights are lost during a period of
prescription. The purveyors refer to footnote 13 in the Mojave decision. This footnote
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raises the issue of whether a court could limit future overlying water rights below
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unreasonable or wasteful usage. The footnote makes clear that the Mojave court did not
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address this question. Nevertheless, the footnote does not raise the question of
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whether past unexercised overlying rights would be lost during a period of prescription
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as proposed by the Purveyors in this case. Accordingly, the footnote is meaningless and
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certainly not authority for the claim made herein by the Purveyors. Finally, there has
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been no proof in this case of alleged unreasonable use or waste
The Purveyors Attempt to Replace The California Priority Water Law System With
A Deprioritization Scheme
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In adverse possession, as envisioned by purveyors, any adverse
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possession, no matter how small, has the effect of substituting common law rights with
a ‘de-prioritized right’ the scope of which is based upon pumping during an alleged
period of overdraft.. The purveyors cite no authority for this approach..
Correctly analyzed under current case law, adverse possession gives the party
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proving the adverse possession a priority right in a time of shortage to pump the amount
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of the adversely possessed water which is superior to the right of the party against
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whom the adverse possession is proved. Adverse possession does not change the
Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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priority right of the party against whom the adverse possession is proved. For example,
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a landowner against whom an adverse possession water right is proved, continues to
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have a priority right to pump. However, in a time of shortage, the party obtaining the
adverse possession right can limit pumping by the party against whom the right was
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proved, in the amount adversely possessed. The priority right of the overlying
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landowner against whom the adverse possession claim was proved, remains intact in all
other respects including priority as to amounts in excess of the adverse possession
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amount, priority as against other inferior rights holders and with regard to unexercised
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overlying rights. The correlative right as between overlying lamdowners also remains
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intact. No rights are “deprioritized”.
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The purveyors have failed to cite any authority for their claim that rights are
deprioritized and current case law does not support this theory. For example, as noted
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above, the California Supreme Court in Mojave clearly explained the California priority
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water law system and confirmed that the overlying right remains intact, subject to the
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amount of the prescription.
Accepting the Purveyor approach would if carried to the logical conclusion,
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extinguish common law rights of both landowners as well as purveyors. For example, in
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the first of the three possible prescriptive periods discussed by the court, Golden State
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offered evidence of pumping in a very small amount and Santa Maria was unable to
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establish any pumping. Golden State’s prescriptive right would be only as to that small
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amount and Santa Maria would gain no prescriptive right. The law is clear that
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prescription operates against all senior rights whether overlying or appropriative.
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Therefore Golden State’s prescription would operate against Santa Maria whose rights
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would be ‘de-prioritized’ in the same way and to the same extent that landowner rights
are allegedly deprioritized.
Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
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Pumpers could avoid de-prioritization only by metering their wells and pumping
as much as possible whether the water was needed or not in order to maintain a priority
right to pump in the greatest amount possible. This obviously would result in an
unconstitutional waste of water under Article 2, Section X of the California Constitution.
5
Further, Santa Maria has no well records for the first alleged prescriptive period which
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would result in Santa Maria having no priority rights even as against later in time
appropriators since it would have a ‘de-prioritized’ right. All parties in the SMWB who
could not prove the amount of their pumping, since most do not meter their wells, would
10
loose any priority they otherwise would have under California priority system law.
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Clearly this is inconsistent with California water law.
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CONCLUSION
The non-stipulating landowners are entitled to a judgment on their quiet title
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actions. These landowners have proved their status as overlying landowners including
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the appurtenant right to pump and use groundwater reasonably on their properties. As a
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result, they are entitled to "… injunctive relief protecting their overlying water rights to
the current and prospective reasonable and beneficial need for water on their respective
properties" as articulated in Mojave.
Likewise, the Purveyors have a right to judgment on their declaratory relief
21
claims. As noted extensively in this brief and in previous submissions to this Court, the
22
landowners agree that the Purveyors have a right to import water during a time of
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shortage and long term destructive overdraft and to have priority to use that imported
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water during that period of shortage. If shortage develops in the future, a Purveyor will
25
need to prove the existence of the shortage, the importation of water during that time of
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shortage and the net augmentation to the water supply as a result of that Purveyor’s
importation of water.
Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF
1
The landowners contend that the Purveyors have failed to prove any other
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declaratory relief claim and accordingly have proved no basis for imposition of a physical
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solution. However, this Court may nevertheless retain jurisdiction to resolve future
disputes between the Purveyors and the stipulating landowners and disputes between
5
the Purveyors and the non-stipulating landowners.
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The Purveyors have misconstrued California case law as most recently
articulated by our California Supreme Court in the Mojave decision. The causes of
action they have asserted have not been proved and the relief they are requesting is not
appropriate under California law.
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Respectfully submitted,
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July 17, 2006
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Richard Zimmer
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Stewart Johnston, Esq.
Santa Maria, CA
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LOG REPLY TO PURVEYOR TRIAL BRIEF