Antelope Valley Groundwater Cases ( 2021 )

Filed 3/16/21; Certified for Publication 4/6/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
F082469
ANTELOPE VALLEY GROUNDWATER CASES*
REBECCA LEE WILLIS et al.,
Plaintiffs and Appellants, (JCCP No. 4408)
v.
LOS ANGELES COUNTY WATERWORKS OPINION
DISTRICT NO. 40 et al.,
Defendants, Cross-complainants and
Respondents;
CITY OF LOS ANGELES et al.,
Defendants, Cross-defendants and
Respondents;
ANTELOPE VALLEY–EAST KERN WATER
AGENCY,
Cross-defendant, Cross-complainant and
Respondent;
*Los Angeles County Waterworks District No. 40 v. Diamond Farming Co. (Super. Ct.
Los Angeles County, No. BC325201); Los Angeles County Waterworks District No. 40 v.
Diamond Farming Co. (Super. Ct. Kern County, No. S-1500-CV254348); Wm. Bolthouse
Farms, Inc. v. City of Lancaster (Super. Ct. Riverside County, No. RIC353840); Diamond
Farming Co. v. City of Lancaster (Super. Ct. Riverside County, No. RIC344436); Diamond
Farming Co. v. Palmdale Water Dist. (Super. Ct. Riverside County, No. RIC344668); Willis v.
Los Angeles County Waterworks District No. 40 (Super. Ct. Los Angeles County,
No. BC364553); Wood v. Los Angeles County Waterworks District No. 40 (Super. Ct. Los
Angeles County, No. BC391869).
U. S. BORAX INC. et al.,
Cross-defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County. Jack
Komar, Judge.†
Niddrie Addams Fuller Singh, David A. Niddrie, Victoria E. Fuller; The Kalfayan
Law Firm, Ralph B. Kalfayan; and Gregory L. James for Plaintiffs and Appellants.
Mary Wickham, County Counsel, Warren R. Wellen, Deputy County Counsel;
Best & Krieger, Eric L. Garner, Jeffrey V. Dunn, Wendy Y. Wang; Lagerlof, Thomas
Bunn III; Murphy & Evertz, Douglas J. Evertz; Olivarez Madruga Lemieux O’Neill,
W. Keith Lemieux; and Lynne Patrice McGhee for Defendants, Cross-complainants and
Respondents.
Michael N. Feuer, City Attorney; Joseph Brajevich; Raymond Ilgunas; Kronick,
Moskovitz, Tiedemann & Girard, Eric N. Robinson and Stanley C. Powell for
Defendants, Cross-defendants and Respondents.
Richards, Watson & Gershon, James L. Markman and B. Tilden Kim for Cross-
defendant, Cross-complainant and Respondent.
Venable, William M. Sloan, Tyler G. Welti; Kuhs & Parker, Robert G. Kuhs,
Bernard C. Barmann, Jr.; Ellison, Schneider, Harris & Donlan, Christopher M. Sanders;
Zimmer & Melton, Richard Zimmer; Law Office of LeBeau Thelen, Bob H. Joyce;
Lesnick Prince & Pappas, Michael E. Pappas, Debra E. Cardarelli; Air Force Legal
Operations Agency, Edwin Oyarzo; Jeffrey Bossert Clark, Assistant Attorney General,
Eric Grant, Deputy Assistant Attorney General, and John L. Smeltzer for Cross-
defendants and Respondents.
-ooOoo-
†Retired Judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
2.
Our Supreme Court recognized over 40 years ago that “‘[t]he scope and technical
complexity of issues concerning water resource management are unequalled by virtually
any other type of activity presented to the courts. What constitutes reasonable water use
is dependent upon not only the entire circumstances presented but varies as the current
situation changes … “[and the] inquiry cannot be resolved in vacuo from statewide
considerations of transcendent importance.”’” (Environmental Defense Fund, Inc. v. East
Bay Mun. Utility Dist. (1980) 26 Cal.3d 183, 194, quoting Joslin v. Marin Mun. Water
Dist. (1967) 67 Cal.2d 132, 140.) The legal and technical complexities inherent in any
water rights adjudication grows exponentially when a court is called upon to craft a
comprehensive resolution that must accommodate the legally cognizable water rights
claims of thousands of users who are all competing for access to an overburdened source
of supply that is insufficient to meet all of the demands placed upon it. This is such a
case.
Over 20 years ago, the first lawsuits were filed that ultimately evolved into this
proceeding known as the Antelope Valley Groundwater Cases (AVGC). Numerous
parties asserted that, without a comprehensive adjudication of all competing parties’
rights to produce water from and a physical solution for the aquifer, the continuing
overdraft1 of the basin would negatively impact the health of the aquifer. After the
1In the context of an aquifer, “overdraft” occurs when the average annual withdrawals or
diversions from the aquifer exceed the “safe yield” of a groundwater supply and would lead to
ultimate depletion of the available supply. (Jordan v. City of Santa Barbara (1996) 46
Cal.App.4th 1245, 1272.) The safe yield is “‘the maximum quantity of water which can be
withdrawn annually from a ground water supply under a given set of conditions without causing
an undesirable result.’ The phrase ‘undesirable result’ is understood to refer to a gradual
lowering of the ground water levels resulting eventually in depletion of the supply.” (City of Los
Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 278, disapproved on other grounds in
City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224, 1248 (Barstow).) In essence,
safe yield examines the available groundwater recharge from replenishing sources such as native
precipitation and associated runoff, along with return flows from such sources, less losses
incurred through natural groundwater depletions such as subsurface outflow or evaporative
losses. (City of Los Angeles, supra, at pp. 278–279; see Tehachapi-Cummings County Water
Dist. v. Armstrong (1975) 49 Cal.App.3d 992, 996, fn. 3 (Tehachapi-Cummings) [“Natural ‘safe
3.
Judicial Council ordered all then-pending lawsuits coordinated into this single
adjudication proceeding, the trial court embarked on an 11-year process, employing
phased proceedings, to adjudicate how to accommodate the rights and needs of
competing users while protecting the threatened alluvial basin. The parties asserting
competing usufructuary claims to pump water from the alluvial basin included numerous
entities or agencies that pumped water to supply their thousands of customers (for largely
domestic use) within the Antelope Valley Adjudication Area (AVAA), the federal
government, and scores of owners of overlying lands who pumped water primarily to use
for agricultural, industrial, commercial and domestic uses on their overlying properties.
The individual overlying landowners who extracted water for their farming or
other operations within the AVAA included individual entities (such as Bolthouse
Properties LLC and Diamond Farming Co.), medium and smaller landowners, and also
included a group of 16 “mutual water companies” formed by owners of overlying lands
who transferred their water rights to the company in exchange for stock in that company;
those companies own, operate and maintain infrastructure to produce and deliver water
from the aquifer solely to their shareholders.
Two other large groups participated in the litigation. The first group, known as the
“Willis Class” (hereafter Willis), was formed by the court to represent the interests of a
large group of persons who owned overlying land in the AVAA but who had not pumped
water from the aquifer for any purposes. Another smaller class, known as the “Wood
Class” (hereafter Wood) or the “Small Pumper Class,” was formed by the court to
represent the interests of another large group of overlying landowners who historically
had pumped not more than 25 acre-feet per year (afy) from the aquifer during the relevant
period.
yield’ is the maximum quantity of ground water, not in excess of the long-term, average, natural
replenishment (e.g., rainfall and runoff), which may be extracted annually without eventual
depletion of the basin”].)
4.
Willis was named for the original class representative, Rebecca Lee Willis, who
alleged she owned a 10-acre parcel with the intent to develop it in the future for a home
and nursery, but which was not currently within a water district’s service area, and
therefore would need to use groundwater to develop her land. When Rebecca Lee Willis
sold her land in 2012, the class sought and received permission to substitute David
Estrada as class representative. He similarly asserted he owned land within the AVAA
that he intended to develop for future uses but lacked water sources apart from
groundwater. For ease of reference, we will use the original nomenclature appended to
the class.
By 2009, the litigation had evolved into a complex array of dozens of separately
filed actions and cross-actions, with thousands of Doe and Roe defendants. The litigation
was eventually tried in six separate phases. The third phase of trial had bifurcated and
scheduled for decision the issues of the basin-wide annual safe yield and whether the
aquifer was in overdraft. Shortly before the “Phase 3” trial, the court consolidated all the
then-pending actions. They all involved the primary core common issue—the competing
claims to draw groundwater from the aquifer—which required an inter se adjudication of
all claims by all parties to the available groundwater. The consolidation order specified
that, while consolidation would not preclude individual parties from entering bilateral or
multilateral settlements of their separate actions or claims against each other, any such
settlement would be required to expressly retain the court’s jurisdiction over them to
enter a judgment resolving all claims to produce groundwater and to create a physical
solution as necessary, and that any such bilateral or multilateral settlement would be
merged into a comprehensive single judgment declaring the extent of production rights
and creating a physical solution.
Prior to the Phase 3 trial, Willis settled their action against the agencies or entities
named in their original complaint, as well as the other public water suppliers or agencies
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who were not originally named as defendants in Willis’s action.2 It is the import and
impact of this settlement agreement (the Settlement) that forms the basis for many of
Willis’s claims in the present appeal. The court ultimately approved the Settlement.
After the Settlement, the court heard and decided the remaining phases of the
proceedings. In Phase 3, the court determined the AVAA’s basin-wide annual safe yield
and found the basin was in a state of chronic overdraft because annual extractions
exceeded that safe yield by a considerable margin. In “Phase 4,” the court quantified
how much water was currently being pumped by each of the major competing water
rights claimants, and this quantification confirmed that annual current extractions (even
without considering the amounts extracted by the Small Pumper Class) were in excess of
the safe yield for the AVAA basin.
The next phase, which contemplated trial of the issues of federal reserved water
rights and imported water return flow rights, was interrupted by settlement discussions.
Those discussions ultimately produced an agreement among the vast majority of parties
in which they settled their respective groundwater claims and agreed to support the
contours of a proposed plan (the “Physical Solution”) designed to bring the AVAA basin
into hydrological balance.
Willis and a few others did not join in support of the proposed Physical Solution.
Accordingly, the court ultimately held a trial on the rationale for and efficacy of the
proposed Physical Solution. Willis raised numerous objections to the proposed Physical
Solution, but the court found the proposed Physical Solution was reasonable, fair and
2The Willis class action complaint included claims against, among others, Los Angeles
County Waterworks District No. 40 (District 40), Palmdale Water District, Littlerock Creek
Irrigation District, Palm Ranch Irrigation District, Quartz Hill Water District, Antelope Valley
Water Co., Rosamond Community Services District, California Water Service Company, and the
City of Palmdale. In the ultimate settlement with Willis, that group of entities was joined by
Phelan Piñon Hills Community Services District, the Desert Lake Community Services District,
and North Edwards Water District as the group of settling defendants.
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beneficial as to all parties, served the public interest, and was consistent with the
Settlement, and ultimately approved the Physical Solution.
On appeal, Willis argues the judgment approving the Physical Solution must be
reversed because it violates California’s water rights priorities structure and California’s
mandate that available water be reasonably and beneficially used. Willis alternatively
asserts that, even if the Physical Solution does not transgress California’s guiding water
law principles, the approved Physical Solution violated the separate requirement of the
Settlement that any final judgment be consistent with the Settlement. Third, Willis
appears to assert that, even if the Physical Solution comported with both California law
and with the Settlement, the court’s failure to apportion to Willis some part of the basin’s
native safe yield (and the accompanying restrictions placed on Willis’s future access to
groundwater) was an abuse of the court’s discretion. Finally, Willis asserts the
constraints placed on their participation in the litigation, particularly during the final
phase of the trial examining whether to approve the Physical Solution, deprived them of
due process and mandates reversal.
We conclude the Physical Solution does not violate California water law
principles and is consistent with the Settlement. Thus, the court did not abuse its
discretion when it equitably apportioned the available groundwater and placed limits and
conditions on future pumping. We also conclude Willis was not denied due process.
Accordingly, we will affirm the judgment.
I
THE AVAA
A. Factual Setting
The AVAA encompasses a vast desert area of over a thousand square miles. As of
2005, it was home to over 450,000 people, with substantial projected population growth
in the future. It is also home to Edwards Air Force Base, making the United States the
AVAA’s largest single landowner. Its regional economy, while historically rooted in
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agricultural operations, has been shifting to include increased residential communities, as
well as industrial and mining operations.
The principal source of water supporting all of these uses is the aquifer underlying
the AVAA, along with some supplemental imported water from the State Water Project
and some reclaimed water. The aquifer underlying the AVAA was in a state of overdraft,
meaning that long-term extractions from the aquifer have exceeded the amount of water
replenishing that aquifer by “significant margins.” It had been in overdraft for decades
before the current litigation commenced in 1999. While localized conditions led to
variable impacts from this overdraft within specific subportions of the AVAA, the overall
water levels within the AVAA basin were declining, and declining water levels have
caused significant long-term damage, including subsidence and lost aquifer storage
capacity. The estimated average annual safe yield from all sources of recharge (natural
sources such as precipitation, external sources such as imported water, and return flows)
was 110,000 afy for the AVAA basin, but the numerous parties who pumped water from
that basin were annually extracting an estimated 130,000 to 150,000 afy.
B. The Competing Water Use Claimants
1. The Public Water Suppliers (PWS)
The PWS are a group of agencies and special districts formed to supply water to
their customers. District 40, the largest of these entities, is the largest urban water
supplier for the region’s cities and pumps from the aquifer to supply those customers. It
supplies water to over 200,000 people within the AVAA. It has over 56,000 metered
retail water service connections, of which approximately 94 percent are residential
customer connections. Other public water entities occupying roles similar to District 40
included Palmdale Water District, Littlerock Creek Irrigation District, Palm Ranch
Irrigation District, and Quartz Hill Water District. District 40 also purchases water from
the State Water Project, which is imported into the AVAA and supplements the basin’s
native safe yield.
8.
2. The Federal Government
The United States owns approximately 300,000 acres overlying the AVAA basin.
Its operations on those lands include Edwards Air Force Base. The United States claimed
federal reserved water rights of up to 11,500 afy for military purposes distinct from any
correlative rights it had as an overlying landowner.
3. The Overlying Landowners Presently Using Groundwater
There are multiple categories of owners of overlying land who, collectively,
extract the majority of the basin’s water.
There are numerous individual persons or entities who own overlying land and
who extract water for use on that land. This group includes corporate landowners such as
Bolthouse Properties LLC and U.S. Borax, which extracted an average of approximately
17,000 and 1,000 afy, respectively, during 2011 and 2012 to supply their farming and
mining operations on their owned land, as well as individual landowners with wildly
varying levels of water use on their land. For example, the Kyles and R & M Ranch
averaged over 9,000 afy on their lands during the 2011 and 2012 measurement period.
Two other owners, the Recas and the Sieberts, pumped an average of 500 and 200 afy,
respectively, during that same period, while yet another owner, Gene Bahlman, averaged
only 5 afy during that period.
There were also numerous “mutual water companies,” which were formed when
the owners of overlying land being developed decided to incorporate the mutual water
company and transfer their water rights to the company in exchange for stock. These
mutual water companies own, operate, and maintain the infrastructure to produce and
deliver water solely to these shareholders, and the shareholders (as owners of the land
with the mutual water companies service district) had the right to receive water deliveries
that is appurtenant to their owned lands.
Another large category of overlying landowners currently pumping from the
aquifer for use on their property were the members of Wood or the Small Pumper Class.
The class represented the interests of private landowners who had pumped less than 25
9.
afy on their property during any year from 1946 through 2015. The class, after opt outs,
ultimately represented over 3,000 privately owned parcels that fell within the class
definitions.
Finally, the overlying landowners currently pumping from the aquifer for use on
their property included several public entities and agencies (the “Public Overliers”).
These included county sanitation districts, the Antelope Valley–East Kern Water Agency,
the City of Los Angeles and other municipalities, and various State of California
agencies.
4. The Overlying Landowners Not Presently Using Groundwater
(Willis)
Willis was formed to represent the interests of approximately 18,000 private
individuals or entities (with certain exceptions) that owned overlying land in the AVAA
but who had not commenced extracting water from the aquifer during the five years prior
to January 18, 2006.
II
THE LITIGATION
A. The Presettlement Litigation
1. The Litigation Commences
Between late 1999 and early 2000, the first lawsuits (which ultimately
evolved into the AVGC) were filed by Diamond Farming Co. and Wm. Bolthouse Farms,
Inc., concerning competing water rights in the aquifer. These actions, styled as quiet title
actions against various public water suppliers, sought a determination of the various
rights and priorities of overlying landowners and others claiming the right to extract
water from the AVAA basin. In 2004, District 40 filed its action seeking (1) a
comprehensive determination of the water rights of the thousands of persons, companies,
public water suppliers, public agencies and the federal government, and (2) a physical
solution to alleviate the alleged overdraft conditions in the AVAA and to protect the
AVAA basin. Among other claims, District 40 sought declaratory relief that it had
10.
obtained prescriptive rights to water from the aquifer, and that the water rights held by all
other defendants (except other public entities) were subordinate to the PWS’s
prescriptively acquired rights.
After the Judicial Council granted District 40’s petition to coordinate all of the
then-pending actions, the court requested that District 40 refile its action as a first
amended cross-complaint in the now coordinated proceedings. Accordingly, in early
2007, District 40 (along with numerous other PWS joining District 40 as cross-
complainants), filed a cross-complaint seeking, among other things, a determination
against all overlying landowners within the AVAA that the PWS cross-complainants had
obtained prescriptive rights to certain amounts of water from the aquifer, and that the
water rights held by all other parties (except other public entities) were subordinate to
those prescriptively acquired rights.
2. Phase 1: Determining the Geographic Boundaries of the AVAA
The trial court segmented the various issues raised by the actions and held trials on
these issues in phased proceedings. In October 2006, the court conducted trial to
establish the jurisdictional boundaries for the AVAA. Establishing the boundaries was
essential to ascertaining which parties and entities with claims to the groundwater would
be necessary parties in the litigation, as either overlying owners with usufructuary rights
in or as appropriators producing water from the aquifer, so that a comprehensive
adjudication of all claims could be made in later proceedings. After hearing expert
testimony, the court established the “basic” jurisdictional boundaries for the AVAA as
largely coextensive with the boundaries of the alluvial basin as defined by the California
Department of Water Resources’ Bulletin 118.
3. The Class Action Complaints
After the court determined the jurisdictional boundaries of the AVAA and the
PWS filed their 2007 cross-complaint asserting they had prescriptively acquired rights to
certain water from the AVAA, Willis filed their class action complaint. Willis’s action,
11.
filed solely against various public agencies, contested the claims of District 40 and other
municipal water purveyors to prescriptively acquired rights, asserting such paramount
rights would threaten Willis’s rights as overlying landowners. Willis sought a declaration
that their rights to present and future overlying uses of the aquifer water were superior to
the claims of District 40 and other municipal water purveyors (as well as a declaration as
to the priority and amounts all parties in interest were entitled to pump from the aquifer),
and pleaded claims for various other forms of relief.
In 2008, Wood filed its class action complaint against various public agencies,
which similarly alleged that the claims of District 40 and other municipal water
purveyors to prescriptively acquired rights conflicted with Wood’s superior rights as
overlying landowners. Wood sought a declaration that the class’s rights to use of the
aquifer’s water were superior to the claims of District 40 and other municipal water
purveyors, as well as claims for other relief similar to that sought by Willis.
4. Phase 2: Determining Hydraulic Connectivity Within AVAA
Boundaries
In the second phase, the court heard evidence to assess the hydrologic nature of
the aquifer within the geographical boundaries set for the AVAA. The court specifically
evaluated whether there were any distinct subbasins within the AVAA basin that lacked
any hydrologic connection such that they should be treated as separate, unconnected
basins for purposes of adjudication. The court concluded there was sufficient hydraulic
connectivity within the AVAA basin as a whole to obviate any claim that certain sections
should be treated as separate basins.
5. The Consolidation Order
In 2009, the PWS moved to transfer and consolidate all pending actions and cross-
actions. The PWS asserted that, while the various pending actions involved disparate
party alignments and interparty claims arising from those alignments, all the actions
sought resolution of the same core issue: the determination of water rights in a single
aquifer where similar claims for declaratory relief, resolution of overlying and
12.
prescriptive rights, and imposition of a physical solution required that a single judgment
be entered as to all of the actions. In their motion to consolidate, the moving parties
provided a matrix of the then-pending actions and cross-actions (some of which were
pending in Kern County and others had been filed in Los Angeles County), and listed the
thousands of parties added as Does and Roes to the PWS cross-complaint. After
extensive briefing, the court granted the motion and entered its order consolidating all but
one of the pending actions and cross-actions. The exempted action, however, was kept as
a coordinated action.
The consolidation order noted the pending complaints and cross-complaints
subject to its consolidation order all sought, in one form or another, a claim for
declaratory relief seeking to determine the right to draw water from the aquifer. Because
this claim was central to the various actions, and all claimed water rights in the aquifer
were correlative to all other competing claims to water from the aquifer, a determination
of any individual party’s water right cannot be decided “in the abstract but must also take
into consideration all other water rights within [the] single aquifer,” and therefore all
pending actions shared common issues of law and fact on the relative rights to draw
water from the aquifer. The court, rejecting the argument that a consolidation order
would require some parties to litigate against parties they had not sued, noted the “only
cause of action that would affect all parties to the consolidation are the declaratory relief
causes of action which seek a declaration of water rights (by definition, correlative
rights),” and “[i]f the basin is in overdraft (a fact still to be established) the Court in each
declaratory relief proceeding would of necessity have to look at the totality of pumping
by all parties, evaluate the rights of all parties who are producing water from the aquifer,
determine whether injunctive relief was required, and determine what solution equity and
statutory law required (including a potential physical solution).” The court also noted
consolidation was appropriate because it would allow for an entry of a single judgment
adjudicating all water rights, which would provide the comprehensive adjudication of
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rights in the aquifer necessary to jurisdiction over the federal government (the AVAA’s
largest landowner) under the “McCarran Amendment” (43 U.S.C. § 666).
The consolidation order acknowledged there was a potential that parties to one or
more of the previously separate actions might desire to enter a bilateral settlement of their
separately filed competing claims.3 To accommodate this potentiality, the court’s
consolidation order provided:
“This order of consolidation will not preclude any parties from settling any
or all claims between or among them, as long as any such settlement
expressly provides for the Court to retain jurisdiction over the settling
parties for purposes of entering a judgment resolving all claims to the rights
to withdraw groundwater from the Antelope Valley Groundwater Basin as
well as the creation of a physical solution if such is required upon a proper
finding by the Court. Upon appropriate motion and the opportunity for all
parties in interest to be heard, the Court may enter a final judgment
approving any settlements, including the Willis and Wood class settlements,
that finally determine all cognizable claims for relief among the settling
parties for purposes of incorporating and merging the settlements into a
comprehensive single judgment containing such a declaration of water
rights and a physical solution. Any such settlement can only affect the
parties to the settlement and cannot have any [e]ffect on the rights and
duties of any party who is not a party to any such settlement. Complete
consolidation shall not preclude or impair any class’ right to seek the entry
of a final judgment after settlement.”
B. Settlement Between PWS and Willis
1. A Settlement Is Reached
In July 2010, the PWS, along with Phelan Piñon Hills Community Services
District, and Willis reached the comprehensive Settlement of their inter se disputes. In
October 2010, Willis moved for preliminary approval of the Settlement, for approval of
3Indeed, Willis had raised concern that consolidation might jeopardize an “in principle”
settlement they had reached with the PWS by preventing the court from approving it and
entering a judgment thereon. Willis later objected a consolidation order might be
counterproductive because the “in principle” proposed settlement, if conditioned by
consolidation on final resolution of all other pending claims, would preclude entry of a final
judgment on the proposed settlement and thereby hold it captive to the disputes between the
PWS and other overlying landowners.
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the notice to the class of the pending Settlement, and to set a fairness hearing. The court
granted the motion and scheduled the fairness hearing, and the approved class notice was
provided to the class members.
The approved class notice stated, in part, that (1) the settling parties would not
contest the PWS estimate of the native safe yield and total safe yields, but that (in the
absence of agreement by all parties) the court would determine those amounts; (2) the
settling parties agreed the settling PWS would have the right to produce up to 15 percent
of a certain adjusted native safe yield and Willis would retain any correlative rights
(along with other landowners) in the remainder; and (3) the parties agreed the AVAA
required a groundwater management plan and agreed to be bound by a court-ordered
plan. The notice explained the court would be required independently to determine the
basin’s safe yield (which would be binding on the class), and Willis would be required to
comply with the terms of the physical solution adopted by the court and the court would
not be bound by the settlement agreement in that regard. The notice advised the class
that the Settlement did not provide for any monetary payments, but “simply preserves
your correlative rights to use … groundwater,” and while there were currently no
restrictions on class members’ ability to pump water, it is “likely that there will be limits
imposed on the amount of pumping,” and any later pumpers “will be required to install
meters on their pumps.”
2. Terms of the Settlement
The parties, after reciting the history of the proceedings, noted the PWS contended
they had prescriptively acquired rights in the AVAA basin to substantially more than 15
percent of the native safe yield, while Willis asserted the PWS had no prescriptive rights
as against Willis. The parties also noted the PWS asserted (and Willis agreed it would
not contest) the AVAA had a native safe yield of 82,300 afy and a total safe yield of
110,500 afy, but the parties agreed to be bound by the court’s determination of those
amounts.
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The parties also agreed on “Allocation of Federally Adjusted Native Safe Yield.”
They first acknowledged the United States had a “federal reserved right” in the native
safe yield and they would be bound by the court’s determination of the amount of that
reserved right, and the Settlement defined the federally adjusted native safe yield as the
native safe yield less the prior year’s production of water by the United States up to the
federal reserved right. The parties agreed PWS and Willis had rights to produce water
from this adjusted native safe yield, and agreed the fair allocation of the settling parties’
respective rights permitted PWS the right to collectively produce up to 15 percent of this
adjusted native safe yield and Willis had an “Overlying Right to a correlative share of
85% of [this] Federally Adjusted Native Safe Yield,” and that their respective shares
could be drawn without any replacement assessment. The parties defined “correlative
rights” as the “principle of California law, articulated in Katz v. Walkinshaw (1903) 141
Cal. 116 and subsequent cases, that Overlying Owners may make reasonable and
beneficial use of the water in a Basin and that, if the supply of water is insufficient for all
reasonable and beneficial needs, each Overlying Owner is entitled to a fair and just
proportion of the water available to the Overlying Owners.” The parties agreed neither
Willis nor the PWS would take any position or enter any agreement inconsistent with
their agreements.
The parties also acknowledged that (1) if the court subsequently determined Willis
did not have overlying rights, the Settlement would not require the PWS to give Willis
any right to pump from the native safe yield, and (2) other overlying users may have the
right to pump (correlatively with Willis ) from the remaining 85 percent of this adjusted
native safe yield for reasonable and beneficial uses on their overlying land.
The agreement also acknowledged the parties had the right to recapture return
flows from imported water and would be entitled to produce water from the aquifer in an
amount equal to return flows from such imported water without any replacement
assessment. The parties also recognized there would be a need for a groundwater
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management plan, overseen by an appointed watermaster, to ensure pumping did not
exceed the total safe yield of the aquifer, and contemplated their Settlement would
become part of the physical solution entered by the court to manage the AVAA basin.
They agreed to be part of that physical solution “to the extent it is consistent with [the
Settlement],” and that could include the requirement that individual class members install
a meter on any pump as a condition to a class member producing water from the aquifer.
They also recognized that a settling party could produce groundwater “above their share
of the Native Safe Yield” but such right would be subject to the Physical Solution, and
that any settling party who produced more than its share would be responsible for either
providing replacement water or paying a replacement assessment to the watermaster so
the watermaster could purchase imported water to recharge the aquifer.
3. The Settlement Is Approved and Judgment Entered
In early 2011, Willis moved for an order granting final approval of the Settlement.
Responding to objections to the Settlement from several parties,4 Willis asserted the
Settlement was “fair to all concerned—including the non-settling parties” because “[w]ith
respect to the latter, the Stipulation expressly provides that it ‘shall not … be construed to
prejudice the rights, claims, or defenses (whether asserted or potential) of any persons
who are not Settling Parties.’ [Citation.] Furthermore, the [Settlement] provide[s] that
4A large landowner, along with another group of overlying landowners, interposed
objections to the terms of the Settlement. They asserted the Settlement was objectionable insofar
as it purported to expand and resolve the Willis claims beyond the pleaded claims (which were
limited to Willis’s contest of the PWS’s prescription claims against nonpumping landowners)
and might be construed as settling “the correlative rights of class members vis-à-vis other
overlying landowners.” They objected that, while Willis and PWS could settle their contest over
PWS’s prescriptive rights vis-à-vis Willis, they could not incorporate provisions that “include
and/or affect in any way the rights of other parties to litigation” and objected that the settlement
would be improper “[t]o the extent [it] is intended to be imposed on the non-settling parties … as
a physical solution ….” Willis, dismissing the objectors’ arguments, asserted the objectors
lacked standing to object because the Settlement was crafted expressly to provide that the
interests or claims of nonsettling overlying owners vis-à-vis members of Willis were not
prejudiced by the Settlement.
17.
the Court retains jurisdiction over the Settling Parties for further proceedings, including
the entry of a Physical Solution if appropriate.”
In May 2011 the court entered judgment approving the Settlement.
C. Postsettlement Phases and Proceedings
1. Phase 3: Determining Safe Yield and Overdraft
The Phase 3 trial, conducted contemporaneously with proceedings on approval of
the Settlement, litigated the safe yield for the AVAA basin and whether the area
encompassed within the AVAA was in overdraft. The PWS, along with numerous other
parties, contended the average annual extractions from the basin exceeded the relevant
safe yields and that it was in overdraft. They proffered extensive testimony on average
annual recharge, annual extractions, and the deleterious impacts caused by the chronic
overdraft of the basin. Willis did not participate in the Phase 3 proceedings because of
the pending Settlement, which recognized the court would determine the safe yield and
such determination would bind Willis.
The court found the basin was in a state of overdraft and that average extractions
had significantly exceeded average recharge for decades, causing a steady lowering of
water levels and accompanying subsidence since 1951. The court concluded the average
total safe yield from all sources was 110,000 afy for the AVAA as a whole, while current
actual extractions from the AVAA as a whole (ranging between 130,000 and 150,000
afy) exceeded average annual recharge. Accordingly, the court found (1) the AVAA was
in overdraft and (2) the safe yield was a total of 110,000 afy.
The total annual safe yield ultimately set by the court in this phase as the
appropriate “quantity of pumping from the basin [which] will maintain equilibrium” in
the aquifer appears to have amalgamated two different components: amounts attributable
to “native” water and amounts attributable to “imported” water. Various experts testified
that native water additions (i.e., water coming into the basin from precipitation and
runoff) provided new water to the AVAA basin ranging between 55,000 to 68,000 afy.
18.
When return flows from that native new water were calculated, the PWS contended the
native safe yield should be set at approximately 82,300 afy for the AVAA basin as a
whole. However, various entities also imported water into the AVAA, and when that
imported water (along with its return flows) was added to the native supply, the total safe
yield for the AVAA basin was determined by the court to be 110,000 afy.
2. Phase 4: Determining Actual Groundwater Production by
Claimants
In the next phase, the court ultimately determined it would limit trial to
individualized determinations of how much water the various stakeholders actually
pumped from the AVAA basin during the years 2011 and 2012. Initially, the case
management order for the Phase 4 trial contemplated it would encompass issues in
addition to current groundwater production for the two-year period that preceded the
Phase 4 trial. However, the case management order ultimately provided the “Phase [4]
Trial is only for the purpose of determining groundwater pumping during 2011 and 2012.
The Phase [4] Trial shall not result in any determination of any water right, or the
reasonableness of any party’s water use or manner of applying water to the use. The
Phase [4] Trial will not preclude any party from introducing in a later trial phase evidence
to support its claimed water rights …. All parties reserve their rights to produce any
evidence to support their claimed water rights and make any related legal arguments
including, without limitation, argument based on any applicable constitutional, statutory,
or decisional authority.”
Based on the stipulations and evidence presented by numerous parties about the
amounts pumped during the relevant time frames, the court determined the amounts
actually pumped by the various major stakeholders during those sample years exceeded
the previously determined safe yield for the AVAA basin. The court found that, during
the sampled years, the parties cumulatively pumped in excess of 120,000 afy even before
consideration of the amounts pumped by Wood, and apparently without consideration of
the amount that would be subject to any federal reserved right.
19.
3. Phase 5: Federal Reserved Rights and Imported Water Return
Flow Rights
The “Phase 5” trial bifurcated two issues (federal reserved water rights, and any
claimed rights to recapture and use any return flows from water imported into the
AVAA) for the next trial phase. However, during the evidentiary presentations, the
parties requested a recess of pending proceedings to permit further settlement
discussions. The parties then met and conducted settlement discussions, and in April
2014, the parties informed the court that the vast majority of the parties had reached a
proposed global settlement of their respective groundwater claims. This global
settlement included agreement on the contours of a basin-wide groundwater management
plan to implement a physical solution to the AVAA basin’s overdraft conditions, which
included an allocation of the available native safe yield among the parties to the global
settlement.
4. Trial of Unsettled Claims
Several parties did not join in the proposed global settlement and physical
solution. Because some parties were unable to reach a satisfactory agreement to
accommodate their claims to pump water from the AVAA basin, the court scheduled
trials (1) to litigate and resolve those claims for relief, and (2) to consider whether to
adopt the proposed Physical Solution. The claims of one of the objecting parties, Phelan
Piñon Hills Community Services District, were heard and resolved in a series of
proceedings and decisions both prior to and as part of the final hearings on the global
settlement and proposed Physical Solution. (See Antelope Valley Groundwater Cases
(2020) 59 Cal.App.5th 241, 254–258.)
5. Willis Class Opposition to the Global Settlement and Physical
Solution
Prior to trial on the proposed Physical Solution, Willis signaled it would oppose
any physical solution which proposed subordinating their overlying correlative rights in
the native safe yield to those rights held by actively pumping overlying landowners.
20.
Willis filed pretrial motions, styled as motions “To Enforce Settlement Agreement” and
to “Enforce Due Process Rights,” which variously contended the proposed global
settlement and physical solution were inconsistent with the Settlement because it de facto
subordinated Willis’s rights to other overlying users without any notice or opportunity to
defend against such a claim for relief against them. The court denied the motions without
prejudice.
Willis also sought a court order to appoint an expert for the class, at PWS’s
expense, to evaluate and opine on various aspects of the proposed global settlement and
Physical Solution and its impacts on Willis. The PWS objected, arguing, in part, that the
only matter at issue for Willis was whether the global settlement was consistent with the
Settlement, which presented a question of law on which expert testimony was improper.
The court denied Willis’s motion. Willis also moved in limine to allow it to introduce
competing “plans,” which contained alternative allocations of the native safe yield to
preserve segments of the native safe yield for future use by Willis. The court at trial,
responding to a motion to limit Willis to challenging whether the proposed global
settlement and Physical Solution was “inconsistent” with the Settlement, sustained
objections to testimony from witnesses about alternative proposals.
D. The Final Phase: Trial on the Proposed Physical Solution and
Unresolved Claims
In the fall of 2015, the court held hearings on the proposed Physical Solution. The
court also held trial on various unresolved claims, which included admitting extensive
evidence supporting the PWS’s claim for prescriptive rights as against certain parties
(including the Tapia parties, the defaulted parties, and the nonappearing parties) who had
not agreed to the Physical Solution. This evidence included testimony from a historian
on the decades-long public notoriety of the overdraft conditions and their impacts on the
area. The court ultimately found in favor of the PWS’s prescriptive claims because the
evidence showed their adverse use was continuous, open and notorious, and under claim
of right.
21.
The court also heard evidence from numerous experts concerning the proposed
Physical Solution. Dr. Dennis Williams, an expert with extensive experience with
groundwater hydrology, opined the proposed Physical Solution would bring the AVAA
basin back into balance because of its component parts: the requirement that existing
users substantially reduce (or “rampdown”) their water consumption during the
rampdown period, the importation of supplemental water, and the management and
monitoring provisions of the newly created watermaster for the AVAA. Charles Binder,
a civil engineer who acted as a watermaster for another watershed, similarly testified the
provisions of the judgment and proposed Physical Solution would bring the AVAA basin
back into hydrologic balance.
Two other experts opined the parties who were presently using water, and who had
allocations of portions of the native safe yield under the proposed Physical Solution, were
reasonably using the water they extracted and devoting it to beneficial purposes. One
expert, Robert Beeby, was an agricultural engineer with expertise in “crop duties.” He
explained “crop duties” is the amount of water applied to produce a particular crop under
prevailing climate and other conditions (wind, temperature, soil conditions, etc.) and the
requisite growing season. Some crops, such as alfalfa, have a higher crop duty (i.e.,
require more water per acre farmed) than other crops such as carrots or onions.
Beeby prepared a detailed spreadsheet for over 100 water users, listing their pre-
rampdown average yearly pumping, the range of acres to which the water was applied,
and identifying the claimed beneficial use for that water: irrigation, agriculture,
municipal/industrial, domestic, reclamation, and wildlife habitat. Beeby derived the
information from data collected during the Phase 4 trial and subsequently provided to
him. For example, a declaration filed by the owner of Diamond Farming Co. and Crystal
Organic Farms listed the amounts of water pumped, the total acres controlled by the
owner, and the crops irrigated using that water (including carrots, onions and potatoes),
and this data was integrated into Beeby’s spreadsheet.
22.
For users with agricultural uses, Beeby’s spreadsheets listed the specific
agricultural products (specific crops, or livestock, or dairy, or other uses) for which the
water users appeared to be using the water pumped by them. He opined that, with limited
exceptions, the historical amounts pumped by the overlying landowner did not “jump
out” as exceeding the reasonable crop duties or other applied duties for the type and
extent of the listed uses. He also opined that, once water usage was “ramped down” to
the final levels of overlying production rights assigned to these landowners under the
Physical Solution, the overliers would have to alter their farming practices (either by
reducing the acreage farmed or switching to crops with a lower crop duty) or import more
water, because their ramped down usage levels would be insufficient to continue farming
their entire acreage with crops they historically produced. For example, he testified the
Kyles had nearly 1,000 acres they had historically devoted to producing alfalfa, but their
post-rampdown allocation was only 3,670 afy (allowing them only 3.68 afy per acre of
land), which was well below the amount necessary for alfalfa production on their entire
acreage.
A second expert, Robert C. Wagner, was a water engineer with extensive
experience in water resources management, including serving for 19 years as the
watermaster engineer for the adjoining Mojave basin. He reviewed the materials
documenting the amounts of water historically used by the various parties and types of
uses to which they devoted that water. He also compared their historical use to the post-
rampdown production rights under the proposed Physical Solution. Wagner used crop
duties to assess agricultural uses, and also used analogous measures to assess the amounts
consumed for industrial and other types of water uses by the various parties. He
developed a list of the categories of beneficial uses recognized under applicable
California regulatory law and compared that list to the common uses of water within the
AVAA. Based on that comparison, Wagner opined the historical uses by the parties to
the Physical Solution were recognized beneficial uses under applicable California law,
23.
and that the amount of water used for those beneficial purposes fell within the appropriate
parameters.
The court also heard testimony and argument from Willis proffered in opposition
to the proposed judgment and Physical Solution. Willis argued it (1) conflicted with the
terms of the Settlement, (2) conflicted with California law, (3) imposed undue and
unreasonable burdens on Willis, and (4) violated Willis’s due process rights. Willis
proffered expert testimony from Dr. Rodney Smith, explaining he would testify as to (1)
the value of an allocated water right, (2) the effective rate of the native safe yield
allocated to the PWS, (3) alleged inconsistencies between the Settlement and the
proposed judgment and Physical Solution, (4) the costs of new well construction, and (5)
three alternative models that would include allocations for Willis. The court sustained
objections to his testimony.
Willis also offered expert testimony from Stephen Roach, who opined the impact
of procedures and limits on new pumping under the proposed Physical Solution greatly
diminished the value of Willis members’ land. Willis also offered percipient witness
testimony from two Willis members on the importance of water to their future land uses,
as well as testimony from a prospective buyer of a parcel who opted not to purchase
because of the difficulties and costs of obtaining new water production under the
proposed Physical Solution.
E. The Final Judgment and Adoption of the Physical Solution
The court’s final judgment, which incorporated determinations from prior phases,
found the collective demands by those holding water rights in the AVAA basin exceeded
the available safe yield for the basin, and that a comprehensive adjudication of all of the
water rights within the AVAA basin and a water resource management plan was required
to prevent further depletion of and damage to the AVAA basin. The court found the
United States had produced substantial evidence establishing its federal reserved water
right, and that the PWS had produced substantial evidence showing they had acquired a
24.
prescriptive right to pump approximately 32,000 afy as against those parties who had not
joined in the stipulated judgment.
The court further found that various overlying landowners and Public Overliers
who had joined in the global settlement had established (1) they possessed overlying
rights to the basin’s native safe yield by producing evidence of their ownership of
overlying lands and the amounts of the basin groundwater they actually used, (2) that the
water used were reasonable and beneficial uses of such water, and (3) that the total
amounts so used exceeded the total native safe yield.
The court made similar findings as to a group of nonstipulating landowner parties
who claimed overlying rights in the basin’s groundwater by proof of their land ownership
or other interest in the basin. While this group was not signatories to the original global
settlement, they supported the proposed judgment and Physical Solution and agreed to
reduce production under paragraph 5.1.10 of the Physical Solution to certain specified
amounts. The court found these parties had shown they had an overlying right to basin
water, that they had reasonably and beneficially used basin water, and that the amounts
they were allocated under the Physical Solution represented a severe reduction of their
historical and current uses and represented amounts they applied to reasonable and
beneficial uses. The court also granted final approval to a settlement for the Small
Pumper Class, which allocated certain production rights to members of that class.
The court found that, because the native safe yield was well below the amounts
used for reasonable and beneficial purposes by those with overlying, prescriptive, or
reserved rights, it was necessary to allocate and limit production in the native safe yield
among these rights holders to protect the basin for existing and future users. The court
concluded the evidence presented during Phases 4 and 6 supported the conclusion that the
Physical Solution, which required rights holders to severely reduce the amount of water
they used and created an overarching water management plan for the basin, fairly
allocated the available water supplies and made the maximum reasonable and beneficial
25.
use of the native safe yield in a manner which would protect the AVAA basin for existing
and future users while preserving the ability of existing rights holders to continue using
the available native safe yield.
The Physical Solution allocated 7,600 afy of the native safe yield to the United
States as its federal reserved water right, but the United States also waived any future
right to a correlative share as an overlying landowner. The judgment provided that, to the
extent the United States in fact used less than its 7,600 afy in any given year, that unused
balance would be allocated to the nonoverlying production rights holders (in proportion
to their production rights under the judgment) for the following year only. This year-by-
year supplemental redistribution specifically states it “does not affect the United States’
ability to fully Produce its Federal Reserved Water Right … in any subsequent Year,”
and the production of any unused federal reserved water right production “does not
increase any Non-Overlying Production Right holder’s decreed Non-Overlying
Production Right amount or percentage.”
The Physical Solution also allocated annual overlying production rights in the
native safe yield among the competing overlying landholders who were currently
extracting water. An aggregate amount of 3,806.4 afy was allocated for the Small
Pumper Class. The remaining available native safe yield (totaling 58,322.23 afy) was
allocated as production rights among the remaining overlying producers, including
overlying private landowners, various mutual water companies, public overlying
landowners, and various state agencies.
For existing overlying rights holders who currently produced water from the
aquifer, the judgment listed their pre-rampdown production and the production right
assigned to them (both in acre-feet per year and as a percentage of the “Production from
the Adjusted Native Safe Yield”). For example, the largest single overlying rights
producer, Bolthouse Properties LLC, had pre-rampdown production of 16,805.89 afy,
and a final production right of 9,945 afy (or 14.069 percent of the adjusted native safe
26.
yield), while other overlying rights producers (such as U.S. Borax, Inc.) were allocated
the same amounts as both their pre-rampdown and final production rights.
Under the Physical Solution, the existing producers were subject to the rampdown
provisions, which created a seven-year period in which these producers were required to
reduce their water extractions from their pre-rampdown production to their assigned
production right. During the first two years, these producers could extract up to their pre-
rampdown production without paying any replacement assessment, and thereafter were
required to reduce their production (in equal increments) over the next five years to
reduce usage to their assigned production right, and any water extractions above those
limits would be subject to a replacement assessment. Under the Physical Solution, while
some producers (such as Bolthouse Properties LLC) were required to reduce their
production by over 40 percent (with some producers required to reduce production by
more than half, other producers (such as U.S. Borax, Inc.) were not required to reduce
production from their pre-rampdown levels.
The Physical Solution finally allocated the remaining balance of the native safe
yield (12,345 afy) to 11 public water suppliers as “Non-Overlying Production Rights.”
This 12,345 afy represented approximately 15 percent of the native safe yield.
The Physical Solution did not allocate any specific amount of the native safe yield
to Willis. Instead, it specified any future pumping beyond the allocations specified in the
Physical Solution would be governed by the terms of the Physical Solution. Under those
terms, any “new production” from the aquifer (including by members of Willis) must
comply with the new production application procedures. The Physical Solution provides
that new production would be subject to payment of a replacement assessment.
However, when such proposed new production was limited to domestic use for one
single-family household, “the Watermaster Engineer has the authority to determine the
New Production to be de minimis and waive payment of a Replacement Water
Assessment.”
27.
The court made numerous findings on the provisions of the Physical Solution as it
impacted Willis. The court first concluded that, under California law, a court may under
certain circumstances limit or condition the future exercise of previously unexercised
overlying water rights, and that the unique circumstances of the AVAA warranted the
restrictions imposed by the Physical Solution on Willis’s unexercised overlying rights.
Specifically, the court noted the evidence showed the extractions by existing overlying
rights holders for reasonable and beneficial uses had already exceeded the available
native safe yield, even without consideration of the pumping by the PWS, which gave
rise to the PWS’s prescriptively acquired rights. Accordingly, the court found these
unexercised overlying rights must be subjected to some limitations because, if Willis
were granted an unlimited ability to exercise their overlying rights, the correlative rights
of existing users with long-established overlying production would be rendered
meaningless since the unexercised overlying rights could eliminate all water available for
long-established users. The court found the AVAA required certainty through
quantifying all pumping rights, including overlying rights, but Willis’s overlying rights
cannot be quantified, and allocating water for unexercised overlying rights would create
an unacceptable measure of uncertainty and risk of harm to the public, and would
unreasonably inhibit the long-range planning and investment critical to solving the
overdraft conditions in the basin.
The court, after hearing evidence on all parties’ water rights and considering those
water rights in relation to California’s reasonable use doctrine, found that “the unique
aspects of this Basin explained below and its chronic overdraft conditions prevent
[Willis] from having unrestricted overlying rights to pump Basin groundwater.” The
court ultimately found:
“[T]he Court must impose a physical solution that limits groundwater
pumping to the safe yield, protects the Basin long-term, and is fair and
equitable to all parties. The Court’s Physical Solution meets these
requirements. It severely reduces groundwater pumping, provides
management structure that will protect the Basin, balances the long-term
28.
groundwater supply and demand, and limits future pumping by
management rules that are fair, equitable, necessary and equally applied to
all overlying landowners. [¶] The Court also notes that [Willis] does not
presently pump any groundwater and thus, has no present reasonable and
beneficial use of water. The Court finds it would be unreasonable to
require present users to further reduce their already severely reduced water
use to reserve a supply of water for non-users’ speculative future use. Here,
quantification of overlying rights is necessary because there is a present
need to allocate the native supply. Accordingly, the Landowner Parties,
Public Overliers and Small Pumper Class are entitled to continue their
significantly reduced production of the native or natural safe yield as set
forth in the Physical Solution. [Citation.] [¶] The Court finds that without
reasonable conditions upon the exercise of an overlying right in this
overdrafted Basin, [Willis’s] members’ unrestricted right to exercise of the
overlying right during shortage conditions would make it impossible to
manage and resolve the overdraft conditions under the unique facts of this
Basin and ‘[t]he law never requires impossibilities.’ (Civ. Code, § 3531.)
The Court therefore finds that [Willis’s] members have an overlying right
that is to be exercised in accordance with the Physical Solution herein.”
The court also evaluated Willis’s challenge to the judgment and Physical Solution
based on the assertion it was inconsistent with their Settlement with the PWS. The court
noted the settling parties understood (1) their bilateral agreement neither could nor did
establish a water rights determination binding upon all other parties to the proceedings,
(2) that water rights must be determined by the court as part of a comprehensive physical
solution to the basin’s chronic overdraft condition, and (3) Willis recognized their
correlative rights would depend upon the correlative rights of all other overlying
landowners in the basin.5 The court concluded the Settlement recognized “that [Willis’s]
members may receive whatever is later to be determined by the Court as their reasonable
correlative right to the Basin’s native safe yield for actual reasonable and beneficial uses,
5The Settlement provided that “[Willis’s] members recognize that other Overlying
Owners may have the right to pump correlatively with them 85% of the Federally Adjusted
Native Safe Yield of the Basin for reasonable and beneficial uses on their overlying land”
(Settlement, section IV.D.3), and defined “correlative rights” as the “principle of California law
… that Overlying Owners may make reasonable and beneficial use of the water in a Basin and
that, if the supply of water is insufficient for all reasonable and beneficial needs, each Overlying
Owner is entitled to a fair and just proportion of the water available to the Overlying Owners.”
(Settlement, section III.D.)
29.
[but] it could do nothing more. Nothing in the Decision, Judgment, or Physical Solution
alters the agreed-upon allocations between the [PWS] and [Willis]. That relationship has
no impact on the Court’s duty to impose a Physical Solution that protects the Basin.”
The court found the Physical Solution was consistent with the Settlement because
(1) the Settlement recognized there would be court-imposed limits on Willis’s correlative
share because of the basin’s chronic overdraft conditions, (2) no Willis member showed
any present production rights for existing reasonable and beneficial uses, (3) the Physical
Solution recognized Willis’s correlative overlying rights, and (4) the burdens placed on
Willis’s future exercise of that right was not unreasonable in light of the burdens placed
on other correlative rights holders (to significantly reduce their current pumping and to
incur expenses) in a basin in which reasonable and beneficial water uses more than
exceeded the native safe yield.
The court specifically concluded the limitations on Willis were not unreasonable
because, as correlative rights holders in an overdrafted basin, they were only entitled to a
fair and just proportion of the water available to all overlying landowners holding
correlative rights. Because Willis had never produced groundwater, the Physical
Solution recognized this fact and did not provide for a current allocation to Willis while
preserving their ability to pump groundwater in the future, subject to reasonable
conditions and limitations. The court found this balancing of the respective correlative
rights was fair and just in light of the unique milieu of the AVAA, its long-standing
overdraft conditions, the threat to the aquifer’s stability from permitting overlying
landowners to pump without conditions or limitations, and the significant restrictions
applied to other correlative rights holders who had relied on (and continued to rely on)
the basin for a sustainable groundwater supply.
The court also noted Willis members were accorded the same rights as similarly
situated individuals to either prove a claim of right to the court (under § 5.1.10 of the
Physical Solution) or, like all other pumpers in the basin, apply to the watermaster for
30.
new groundwater production. The court noted that, to the extent a replacement water
assessment is imposed on new production by Willis members, such an assessment would
be reasonable (as well as consistent with the Settlement provision that Willis agreed to
pay a replacement assessment if a member produced “more than its annual share” of the
native safe yield) and such assessment was imposed uniformly on all overlying producers
in the basin who produced more than their available allocation in any given year. The
court also determined the costs associated with such an assessment were reasonable,
noting that even if a replacement assessment was imposed, the replacement assessments
for one acre-foot per year (an amount sufficient for domestic use) would result in an
average cost for a Willis member of $26 per month (less than what most Californians are
likely paying for that amount), and therefore did not unreasonably burden Willis
members. Moreover, noted the court, a Willis member could avoid even that de minimus
burden under the Physical Solution if the watermaster engineer determined the particular
Willis member’s proposed pumping was for domestic use and would not harm the basin
or other groundwater users.
The court issued its judgment, adopted the Physical Solution, and issued a
statement of decision explaining the basis for its judgment and Physical Solution. Willis
timely appealed.
III
SUMMARY OF CONTENTIONS ON APPEAL
Willis appears to raise four overarching claims (with each such claim containing
numerous subarguments) challenging the validity of the judgment and thereby requiring
its reversal. First, they assert the court’s Physical Solution is fatally incompatible with
California law governing water rights and priorities in a groundwater basin. Second, they
contend the Settlement required the Physical Solution ultimately adopted by the court to
be consistent with the Settlement, and Willis argues the Physical Solution adopted by the
court was inconsistent with the Settlement. Third, Willis appears to argue the conditions
31.
and limitations placed on Willis’s future access to water was an abuse of the trial court’s
discretion because the articulated reasons for imposing such conditions and limitations
cannot withstand scrutiny. Finally, Willis asserts the post-Settlement proceedings
violated their due process rights.
We will conclude the judgment and Physical Solution adequately balanced the
competing interests of the parties within the parameters of governing California law and
was not inconsistent with the terms of the Settlement, and that the court’s adoption of the
limits and conditions imposed by the Physical Solution was not an abuse of discretion.
We also reject Willis’s claims that the limits placed on Willis’s post-Settlement
participation in the litigation amounted to a denial of due process. Accordingly, we will
affirm the judgment.
IV
OVERVIEW OF APPLICABLE CALIFORNIA LAW
A. Sources of Water Rights
California has been described as having a “dual system of water rights” 6 that
recognizes two principal sources by which water rights in surface waters can be acquired:
by riparian rights holders who have first priority to the available water for riparian uses,
or by appropriation of water for nonriparian uses when there is water in surplus beyond
that used by first priority users. (See generally Santa Barbara Channelkeeper v. City of
San Buenaventura (2018) 19 Cal.App.5th 1176, 1183.)
“Similar principles govern rights to water in an underground basin. First
priority goes to the landowner whose property overlies the groundwater.
These ‘overlying rights’ are analogous to riparian rights in that they are
6Although courts generally refer to the “dual system” of water rights, the courts have
acknowledged that “California’s water rights system is not really dual but is instead tripartite,
because some pueblo rights superior to riparian or appropriative rights exist.” (Siskiyou County
Farm Bureau v. Department of Fish & Wildlife (2015) 237 Cal.App.4th 411, 423, fn. 3.)
Because pueblo rights are not implicated here, we will limit our evaluation to the principles used
for resolving competing rights to groundwater that are grounded in rights held by overliers and
rights acquired by prescription.
32.
based on ownership of adjoining land, and they confer priority. [Citation.]
Surplus groundwater also may be taken by an appropriator, and priority
among ‘appropriative rights’ holders generally follows the familiar
principle that ‘“the one first in time is the first in right.”’ ([Barstow, supra,
23 Cal.4th] at p. 1241.) With groundwater there is an exception, however,
that gives rise to a third category of rights. Under certain circumstances, an
appropriator may gain ‘prescriptive rights’ by using groundwater to which
it is not legally entitled in a manner that is ‘“actual, open and notorious,
hostile and adverse to the original owner, continuous and uninterrupted for
the statutory period of five years, and under claim of right.”’ (Ibid.)”
(Santa Barbara Channelkeeper v. City of San Buenaventura, supra, at p.
1184.)
While water rights in an underground basin are typically categorized as overlying,
appropriative, or prescriptive, an additional priority claim to such water, known as federal
reserved water rights, can arise when the federal government had reserved land from the
public domain and dedicates it for a specified purpose, like a military base. (Cf.
Cappaert v. United States (1976) 426 U.S. 128, 138.)
The priority pumping right among overliers is a correlative interest: it is shared
along with all of the other overlying landowners above the aquifer. (Barstow, supra, 23
Cal.4th at p. 1241.) Because it is a shared right, the interest of any specific individual
overlier is delimited by the usufructuary interests of each other correlative right holder:
“‘as between the owners of land overlying strata of percolating waters, the rights of each
to the water are limited, in correlation with those of others, to his “reasonable use”
thereof when the water is insufficient to meet the needs of all.’” (Central and West Basin
Water Replenishment Dist. v. Southern Cal. Water Co. (2003) 109 Cal.App.4th 891, 906.)
While overliers are entitled to extract groundwater from the aquifer for the reasonable
and beneficial use of their property (see Katz v. Walkinshaw, supra, 141 Cal. at p. 136),
when the native supply “is insufficient, each is limited to his proportionate fair share of
the total amount available based upon his reasonable need.” (Tehachapi-Cummings,
supra, 49 Cal.App.3d at p. 1001, italics added.) This correlative overlying right, which is
appurtenant to ownership of the overlying land, is superior to claims of other persons
whose claim lacks equivalent legal priority. (Barstow, supra, at p. 1240.)
33.
California recognizes a second type of usufructuary interest in water, described as
“appropriative rights,” which is the right to take and use surplus water for uses outside
the overlying land. An appropriative right, which “‘depends upon the actual taking of
water’” (Barstow, supra, 23 Cal.4th at p. 1241), applies only when there are surplus
waters available by permitting a party to take “‘[a]ny water not needed for the reasonable
beneficial use of those having prior rights [to] be appropriated on privately owned land
for non-overlying use, such as devotion to public use ….’” (Ibid.) “‘Proper overlying
use, however, is paramount and the rights of an appropriator, being limited to the amount
of the surplus [citation], must yield to that of the overlying owner in the event of a
shortage, unless the appropriator has gained prescriptive rights through the [adverse,
open and hostile] taking of nonsurplus waters.’” (Ibid., italics added.)
As Barstow cautions, California recognizes another type of priority claim to
available groundwater supplies: prescriptively acquired rights. (City of Santa Maria v.
Adam (2012) 211 Cal.App.4th 266, 278 (Santa Maria).) Although an appropriator is
entitled to take any surplus groundwater that the overlying landowners do not need, the
appropriator is limited to taking only the remainder (or surplus) of the basin’s “safe
yield.” (Id. at p. 279, citing City of Los Angeles v. City of San Fernando, supra, 14
Cal.3d at p. 214.) As the Santa Maria court explained,
“When total extractions exceed the safe yield the basin is said to be in
overdraft. [Citation.] [¶] … Prescriptive rights arise when an appropriator
continues to pump water during times of overdraft. ‘An appropriative
taking of water which is not surplus is wrongful and may ripen into a
prescriptive right where the use is actual, open and notorious, hostile and
adverse to the original owner, continuous and uninterrupted for the
statutory period of five years, and under claim of right.’ ([California Water
Service Co. v. Edward Sidebotham & Son (1964) 224 Cal.App.2d 715,
726.])” (Santa Maria, supra, at p. 279.)
When a nonoverlier’s use of groundwater has ripened into a prescriptively acquired
interest, the “[a]cquisition of [that] prescriptive right in groundwater rearranges water
rights priorities among water users, elevating the right of the one acquiring it above that
34.
of an appropriator to a right equivalent in priority to that of a landowner.” (Id. at p. 297,
citing San Fernando, supra, at p. 293.)
B. The “Reasonable and Beneficial Use” Overlay
An overlay to this California system for defining water rights is a key limiting
principle: the rule of reasonableness. (Santa Barbara Channelkeeper v. City of San
Buenaventura, supra, 19 Cal.App.5th at p. 1184.) A fundamental precept of California
water law, embodied in article X, section 2 of the California Constitution, is “that the
water resources of the State be put to beneficial use to the fullest extent of which they are
capable, and that the waste or unreasonable use or unreasonable method of use of water
be prevented, and that the conservation of such waters is to be exercised with a view to
the reasonable and beneficial use thereof in the interest of the people and for the public
welfare.” This overarching consideration applies to all water users, regardless of the
source from which their rights are grounded (Peabody v. City of Vallejo (1935) 2 Cal.2d
351, 383), because no party has a protectable interest in the unreasonable use of water.
(Barstow, supra, 23 Cal.4th at pp. 1241–1242.)
The rule of reasonableness means that paramount rights holders, while entitled to
priority for water devoted to their reasonable and beneficial uses, may not be so
profligate with their uses of available water that they deprive others of water that would
otherwise be “surplus” and hence available for appropriation. As articulated by City of
Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 925–926 (Pasadena):
“[I]t is now clear that an overlying owner or any other person having a legal
right to surface or ground water may take only such amount as he
reasonably needs for beneficial purposes. [Citation.] Public interest
requires that there be the greatest number of beneficial uses which the
supply can yield, and water may be appropriated for beneficial uses subject
to the rights of those who have a lawful priority. [Citation.] Any water not
needed for the reasonable beneficial uses of those having prior rights is
excess or surplus water … [which] water may rightfully be appropriated on
privately owned land for nonoverlying uses, such as devotion to a public
use or exportation beyond the basin or watershed.”
35.
C. Principles for Court Adjudications of Water Rights Disputes
Where a dispute arises between parties who interpose competing claims to extract
water from an overdrafted underground basin, the parties may submit their dispute to a
court to adjudicate and impose a physical solution that equitably allocates the available
water in accordance with California’s laws governing water rights. (Barstow, supra, 23
Cal.4th at p. 1233.) “The phrase ‘physical solution’ is used in water rights cases to
describe an agreed-upon or judicially imposed resolution of conflicting claims in a
manner that advances the constitutional rule of reasonable and beneficial use of the
state’s water supply.” (Santa Maria, supra, 211 Cal.App.4th at p. 287.) Physical
solutions are employed “to alleviate overdrafts and the consequential depletion of water
resources in a particular area” (California American Water v. City of Seaside (2010) 183
Cal.App.4th 471, 480), and require the court to apply “general equitable principles to
achieve practical allocation of water to competing interests so that a reasonable
accommodation of demands upon a water source can be achieved.” (Imperial Irrigation
Dist. v. State Wat. Resources Control Bd. (1990) 225 Cal.App.3d 548, 572.)
Although “a trial court may impose a physical solution to achieve a practical
allocation of water to competing interests, the solution’s general purpose cannot simply
ignore the priority rights of the parties asserting them. [Citation.] 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
relation to the reasonable use doctrine.” (Barstow, supra, 23 Cal.4th at p. 1250.) Thus, a
court may employ equitable apportionment principles to allocate the available supply
among competing claimants with equivalent priorities, as long as that physical solution
does not “wholly disregard[] the priorities of existing water rights in favor of equitable
apportionment … [and] adequately consider[s] and reflect[s] the priority of water rights
in the basin” (id. at pp. 1247–1248) and does not “violate the constitutional principle that
requires water to be put to beneficial use to the fullest extent possible.” (Id. at p. 250.)
36.
Ultimately, “[e]ach case must turn on its own facts, and the power of the court
extends to working out a fair and just solution, if one can be worked out, of those facts.”
(Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 560–561.)
V
STANDARDS OF REVIEW
When a trial court exercises its equitable powers to adopt a physical solution, our
review of that judgment is constrained by the deferential abuse of discretion standard of
review. (Barstow, supra, 23 Cal.4th at p. 1256.) We must begin with the “most
fundamental rule of appellate review … that a judgment is presumed correct, [and] all
intendments and presumptions are indulged in its favor, and ambiguities are resolved in
favor of affirmance.” (Santa Maria, supra, 211 Cal.App.4th at p. 286 [standard of
appellate review for trial court judgment adopting a physical solution following trial
court’s groundwater rights determination].) When “[a] trial court exercises its equitable
powers in approving a physical solution and entering the judgment, … review of that
judgment is under the abuse of discretion standard of review.” (Hillside Memorial Park
& Mortuary v. Golden State Water Co. (2011) 205 Cal.App.4th 534, 549; accord,
Barstow, supra, 23 Cal.4th at p. 1256 [when trial court “exercise[s] equitable powers in
approving the proposed physical solution …, [court] properly review[s] the judgment
under the abuse of discretion standard of review”].)
The oft-stated test for abuse of discretion is “whether the trial court exceeded the
bounds of reason. When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479.) The court’s discretion as
to equitable remedies, while not unlimited, should be granted deference when the record
reflects the trial court has considered “the material facts affecting the equities between
the parties.” (Dickson, Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 447;
accord, Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1222–
37.
1223 (conc. opn. of Rushing, P.J.) [“At bottom the concept of ‘discretion’ is one of
latitude. It means that on certain types of issues, the trial court’s ruling will survive
review even if the members of the reviewing court might have ruled otherwise.… [¶] …
[¶] … Obvious examples may be found in the area of equitable remedies, where such
questions as the balance of harms may be dependent on such a complex and debatable set
of competing considerations that there is no social utility in second-guessing a decision,
once it is properly made”].) “‘The burden is on the party complaining to establish an
abuse of discretion, and unless a clear case of abuse is shown and unless there has been a
miscarriage of justice a reviewing court will not substitute its opinion and thereby divest
the trial court of its discretionary power.’” (Denham v. Superior Court (1970) 2 Cal.3d
557, 566.)
However, we apply a different standard of review insofar as Willis’s appellate
claims turn upon the proper interpretation of the Settlement. Those involve issues of law
which we review de novo.7 (See, e.g., Crosby v. HLC Properties, Ltd. (2014) 223
Cal.App.4th 597, 602–604.)
VI
THE JUDGMENT ACCORDS WITH CALIFORNIA LAW
Willis raises a host of arguments contending the Physical Solution violates
California’s law on water rights and hence requires reversal. We address those claims
seriatim.
7Willis appears to suggest that, because de novo review can apply to a stipulated
judgment (citing In re Marriage of Smith (2007) 148 Cal.App.4th 1115, 1120), we should apply
de novo review to the judgment and Physical Solution as a whole because it was based, in part,
on stipulations amongst various parties. We reject that argument because the 2015 judgment,
while certainly based on a “stipulation and physical solution presented as the [Proposed]
Judgment and Physical Solution,” was entered after contested proceedings were held—at which
evidence was introduced and challenges were considered—and the court made extensive factual
findings upon which it concluded that it would “adopt[] [the proposed Physical Solution] as the
Court’s own physical solution.” Accordingly, we will apply the ordinary abuse of discretion
standard to our review of the judgment entered as the trial court’s “own physical solution.”
38.
A. The Physical Solution’s Allocation of the Native Safe Yield Does Not
Violate California’s Water Priorities
Willis contends the Physical Solution violates California’s prioritization of water
rights in a groundwater basin because it allocated all of the available native safe yield8 to
(1) the PWS users holding a lower priority than Willis and (2) to other overliers with
whom Willis shared correlative rights.
Willis correctly notes overlying landowners have rights to a basin’s groundwater
that are appurtenant to the land and are “superior to that of other persons who lack legal
priority” (Barstow, supra, 23 Cal.4th at p. 1240), and that such overlying rights have
priority over appropriators when there is no surplus available for an appropriator to draw
upon. (See generally Corona Foothill Lemon Co. v. Lillibridge (1937) 8 Cal.2d 522,
530–531.) However, allocating part of the native safe yield to the PWS does not violate
this precept of California’s structure for prioritizing water rights: to the extent the PWS’s
uses of the groundwater had ripened into a prescriptive interest in the available
groundwater, the PWS rights were transformed into rights entitled to equivalent priority
with rights of overliers. (Santa Maria, supra, 211 Cal.App.4th at p. 297 [acquisition of a
prescriptive right in groundwater “rearranges water rights priorities among water users,
elevating the right of the one acquiring it above that of an appropriator to a right
equivalent in priority to that of a landowner”].)
Many of Willis’s arguments turn on Willis’s contention that because the supply of
water as part of a municipal water system is not an overlying groundwater right even
where the lands supplied with water overlie the groundwater basin (citing Pasadena,
supra, 33 Cal.2d at p. 927), the PWS hold only appropriative groundwater rights.
However, to the extent of the PWS’s perfected prescriptive rights, those rights have equal
priority with overlying rights. The court heard extensive evidence and, based thereon,
8The native safe yield was 82,300 afy for the AVAA basin as a whole, but after
deducting the United States’ allotted federal reserved rights, the remaining available native safe
yield was 74,700 afy.
39.
determined the PWS had obtained prescriptive rights (which the trial court quantified as a
prescriptive right to approximately 32,000 afy), and Willis makes no claim the evidence
was insufficient to support that determination.9
Moreover, in settling the PWS’s claims against Willis—claims which focused on
acquiring prescriptive rights as against them—there was consent by Willis to allocate 15
percent of available native safe yield to the PWS in the overdrafted basin. Willis’s
Settlement, coupled with the trial court’s finding on prescription, transformed the rights
of the PWS from a mere appropriator into a right “equivalent in priority to that of a
landowner.” (Santa Maria, supra, 211 Cal.App.4th at p. 297.) Accordingly, we
conclude the Physical Solution’s allocation of part of the native safe yield to the PWS
does not transgress, but is instead consonant with, California’s water rights priorities.
(See, e.g., City of Los Angeles v. City of San Fernando, supra, 14 Cal.3d at p. 293 [where
prescription established, party has “a prescriptive right against the water rights
concurrently held by a private defendant [and] [t]he effect of the prescriptive right would
be to give to the party acquiring it and take away from the private defendant against
whom it was acquired either (1) enough water to make the ratio of the prescriptive right
to the remaining rights of the private defendant as favorable to the former in time of
subsequent shortage as it was throughout the prescriptive period [citation] or (2) the
amount of the prescriptive taking, whichever is less”]; Santa Maria, supra, at p. 297.)
Willis suggests the Settlement was limited to an agreement they would not contest
allocating 15 percent to the PWS of a certain amount of the native safe yield, and that the
Physical Solution allocated more than the agreed-upon amount. While we will evaluate
this argument below when assessing Willis’s claim that the amount allocated under the
Physical Solution was not “consistent” with their Settlement, Willis’s agreement that the
9Although the finding of this prescriptively acquired right was entered only against
certain parties (i.e., the Tapia parties, defaulted parties, and parties who did not appear at trial),
no such finding was required as to any other party because all other parties, including Willis,
consented to allocating a share of the native safe yield to the PWS.
40.
PWS were entitled to some share of the native safe yield is consonant with California’s
recognition that an acquired prescriptive right “elevat[es] the right of the one acquiring it
above that of an appropriator to a right equivalent in priority to that of a landowner.”
(Santa Maria, supra, 211 Cal.App.4th at p. 297.)
Willis also appears to contend that our assessment of whether the allocation of
water to the PWS comports with California law, at least independent from what Willis
agreed to in the Settlement, cannot be premised on whether the PWS acquired any
prescriptive interest as against Willis. Citing Hutchins, The California Law of Water
Rights (1956) at page 309 to support this contention, Willis argues an appropriator cannot
acquire any prescriptive interest as against a nonpumping landowner. Since Willis
members were nonusers without need for the water, any pumping by the PWS cannot be
deemed “adverse and hostile” because such use by the PWS did not deprive them of
water required for their own purposes. However, the cases cited by the Hutchins treatise
for such proposition did not address the use of groundwater from an overdrafted aquifer,
it does not evaluate claims by an appropriator based on use of nonsurplus water, and it
did not evaluate the impacts of case law (such as City of Los Angeles v. City of San
Fernando, supra, 14 Cal.3d 199 or Santa Maria, supra, 211 Cal.App.4th 266), which
postdate that treatise.
Willis alternatively argues the Physical Solution violates California law regarding
prioritization of water rights because it allocates the remaining native safe yield to
overlying owners who are currently pumping. Willis argues this allocation violates
correlative rights principles, contending these principles confer on Willis the right to be
treated equally with all of their fellow correlative rights holders when allocating access to
the available native safe yield. However, the case law appears only to require that, as
among correlative rights holders, proper division of an inadequate supply is tested by
41.
whether such division is equitable.10 (Barstow, supra, 23 Cal.4th at p. 1249 [a trial court
“within limits … may use its equitable powers to implement a physical solution”]; cf.
Tehachapi-Cummings, supra, 49 Cal.App.3d at p. 1001 [correlative rights “means that
each has a common right to take all that he can beneficially use on his land if the quantity
is sufficient; if the quantity is insufficient, each is limited to his proportionate fair share
of the total amount available based upon his reasonable need” (italics added)].)
Thus, when crafting a physical solution for an overdrafted groundwater basin
where a court must allocate a water supply that is insufficient to meet the reasonable
needs of all who hold correlative rights, a court may employ equitable apportionment
principles to allocate the available supply among competing claimants with equivalent
priorities. It may do so as long as the physical solution does not “wholly disregard[] the
priorities of existing water rights in favor of equitable apportionment … [and] adequately
consider[s] and reflect[s] the priority of water rights in the basin.” (Barstow, supra, 23
Cal.4th at pp. 1247–1248; accord, Pasadena, supra, 33 Cal.2d at p. 926 [overlying rights
are held in common and each overlier “may use only his reasonable share when water is
insufficient to meet the needs of all” (italics added)].)
We conclude that, when apportioning water in an overdrafted basin among
correlative rights holders, a court should employ equitable apportionment principles and
eschew mechanically based calculations to the extent necessary to reach an equitable
apportionment of the available water. (Cf. City of Los Angeles v. City of San Fernando,
supra, 14 Cal.3d at p. 265 [allocating water based on prescriptive rights “does not
necessarily result in the most equitable apportionment of water according to need. A true
10The Settlement acknowledged and incorporated this guiding principle; while it did not
allocate a specific portion (by quantity or percentage) of the remaining native safe yield to
Willis, it recognized the court would determine the quantity of native safe yield that was
available to distribute among correlative rights holders and further recognized that, when “the
supply of water is insufficient for all reasonable and beneficial needs, each Overlying Owner is
entitled to a fair and just proportion of the water available to Overlying Owners.” (Italics
added.)
42.
equitable apportionment would take into account many more factors”].) Equitable
apportionment should factor in the various legal priorities accorded to the competing
users. But,
“‘if an allocation … is to be just and equitable, strict adherence to the
priority rule may not be possible. For example, the economy of a region
may have been established on the basis of junior appropriations. So far as
possible those established uses should be protected[,] though strict
application of the priority rule might jeopardize them. Apportionment calls
for the exercise of an informed judgment on a consideration of many
factors. Priority of appropriation is the guiding principle. But physical and
climatic conditions, the consumptive use of water in the several sections of
the river, the character and rate of return flows, the extent of established
uses, the availability of storage water, the practical effect of wasteful uses
on downstream areas, the damage to upstream areas as compared to the
benefits to downstream areas if a limitation is imposed on the former—
these are all relevant factors. They are merely an illustrative, not an
exhaustive catalogue. They indicate the nature of the problem of
apportionment and the delicate adjustment of interests which must be
made.’” (Id. at pp. 265–266, fn. 61, quoting Nebraska v. Wyoming (1945)
325 U.S. 589, 618.)
The Barstow court, although concluding a physical solution based on equitable
apportionment must adequately account for the water rights priorities of those impacted
by the apportionment, nevertheless agreed that “within limits, a trial court may use its
equitable powers to implement a physical solution” (Barstow, supra, 23 Cal.4th at p.
1249), and “may impose a physical solution to achieve a practical allocation of water to
competing interests.” (Id. at p. 1250.) Indeed, Barstow appears to uphold (at least by
negative implication) the use of equitable apportionment principles when considering
how to apportion water among correlative rights holders. (See, id. at p. 1248 [“Case law
simply does not support applying an equitable apportionment to water use claims unless
all claimants have correlative rights” (italics added)].)
Willis asserts the Physical Solution’s equitable apportionment of the remaining
native safe yield among overliers does “wholly disregard” Willis’s correlative rights, in
violation of Barstow’s admonition, because it extinguishes all future access by Willis to
43.
any part of the native safe yield in contravention of California law. Certainly, California
seeks to protect both actual uses and prospective reasonable beneficial uses by
overliers.11 (See generally Hillside Memorial Park & Mortuary v. Golden State Water
Co., supra, 205 Cal.App.4th at p. 539.) However, the protection of the interests of
correlative rights holders who are actually using all available water for reasonable and
beneficial purposes may (under appropriate circumstances) permit a court to craft a
physical solution which recognizes the rights held by overliers but subordinates any
future use by those correlative rights holders to their fellow correlative rights holders who
are presently using the available supply.12
11Willis argues California law “clearly precludes extinguishing unexercised overlying
water rights,” citing Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489 (Tulare), and
subsequent authorities. However, Tulare has limited relevance, because Tulare merely made
clear that the reasonable and beneficial use doctrine requires that a court’s judgment should
protect future prospective uses by overlying landowners from being diminished by uses by lower
priority appropriators: “The new doctrine not only protects the actual reasonable beneficial uses
of the riparian but also the prospective reasonable beneficial uses of the riparian. As to such
future … uses, it is quite obvious that the quantity of water so required for such uses cannot be
fixed …. Therefore, as to such [future] uses, the trial court, in its findings and judgment, should
declare such prospective uses paramount to any right of the appropriator.” (Id. at p. 525.) While
Tulare enjoins a court to craft its judgments to protect prospective overlying rights to water
against potential claims of prescription by appropriators, and also declared invalid a provision of
the Water Commission Act purporting to declare an overlying right is extinguished due to
nonuse of that right (Tulare, at pp. 530–531), Tulare did not hold that California law precludes a
court from restricting or subordinating unexercised overlying rights when necessary to
accommodate current uses by equal priority claimants.
12Willis argues in their reply brief that Tehachapi-Cummings, supra, 49 Cal.App.3d 992holds that an apportionment among correlative rights holders that gives existing users priority
over unexercised correlative rights is improper. However, Tehachapi-Cummings did not address
equitable distribution in a comprehensive adjudication and (contrary to Willis’s suggestion) does
not constrain how apportionment must be designed. Instead, Tehachapi-Cummings explained
that, when “there is insufficient water for the current reasonable needs of all the overlying
owners, many factors are to be considered in determining each owner’s proportionate share” (id.
at p. 1001) and that ascertaining the “proportionate share of each owner is predicated not on his
past use over a specified period of time, nor on the time he commenced pumping, but solely on
his current reasonable and beneficial need for water.” (Ibid., italics added.) While Tehachapi-
Cummings would be relevant to apportioning among existing users with current needs, it did not
address apportionment between existing users and unexercised overlying rights.
44.
In In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339 (Long
Valley), our Supreme Court addressed a comprehensive water rights adjudication in the
same circumstances as are present here: a water source that was being completely used
but which had substantial unexercised claims upon it that were held by correlative rights
holders. The Long Valley court held that prospective future uses of significant
unexercised correlative water rights may be conditioned and subordinated to protect
existing uses and reliance interests as part of a comprehensive water rights adjudication
that allocated a limited water supply among competing claimants. (Id. at pp. 358–359.)
In Long Valley, the court evaluated a riparian owner’s challenge to the allocation by the
State Water Resources Control Board (the Board), which allocated water to him for his
ongoing irrigation of his riparian land but allocated no water for his prospective future
use on his remaining undeveloped land. (Id. at p. 346.) The owner argued that
foreclosing his future access to the water was improper because Tulare, supra, 3 Cal.2d
489 barred extinguishment of his prospective, unexercised portion of his riparian right
merely to ensure water would remain available for other existing interests competing for
the same inadequate supply. (Long Valley, supra, at pp. 353–354.) Rejecting that
argument in part,13 the Long Valley court held that article X, section 2 of the California
Constitution authorized the Board “to decide that an unexercised riparian claim loses its
13The Board’s order in Long Valley purported to entirely “extinguish” any unexercised
riparian rights appurtenant to the landowner’s remaining lands (Long Valley, supra, 25 Cal.3d at
p. 346), which Long Valley observed was a “more difficult question.” (Id. at p. 357.) The Long
Valley court ultimately determined there was no “persuasive argument for concluding that
complete extinction of such rights is necessary to the promotion of the reasonable and beneficial
use of a stream system, nor … that the reasonable and beneficial use of the waters in the Long
Valley Creek cannot be equally well promoted by placing limitations on [owners’] future
riparian right other than complete extinction … such as the quantification of the future right, or
assigning to it a lower priority than all present and future actual reasonable beneficial uses
made prior to the riparian’s attempted use [in the future].” (Ibid., italics added.) Thus, while
Long Valley bars an adjudication which entirely extinguishes future overlying rights, it does not
bar an adjudication which preserves those rights but subordinates them to present and future
actual reasonable beneficial uses which arose prior to the dormant rights holder’s attempt to use
the supply.
45.
priority with respect to all rights currently being exercised.” (Long Valley, at pp. 358–
359.) The court further held the Board could “also determine that the future riparian right
shall have a lower priority than any uses of water it authorizes before the riparian in fact
attempts to exercise his right.” (Id. at p. 359.) “In other words, [while state law does not]
authoriz[e] the Board to extinguish altogether a future riparian right, the Board may make
determinations as to the scope, nature and priority of the right that it deems reasonably
necessary to the promotion of the state’s interest in fostering the most reasonable and
beneficial use of its scarce water resources.” (Ibid.)
What does Long Valley make clear when there is a comprehensive adjudication in
which a court is called upon to divide and allocate a limited water supply among
competing equal priority users whose cumulative demands exceed the capacity of that
resource? It is that California law, although precluding any solution purporting to
entirely extinguish unexercised water rights, permits the court to determine “the scope,
nature and priority of the [unexercised] right” as the court may “deem[] reasonably
necessary to the promotion of the state’s interest in fostering the most reasonable and
beneficial use of its scarce water resources.” (Long Valley, supra, 25 Cal.3d at p. 359.)
The structure of the judgment and Physical Solution here comports with that approach.
The court found that “[Willis’s] members have an overlying right that is to be exercised
in accordance with the Physical Solution herein.”
The judgment thus recognizes (rather than entirely extinguishes) Willis’s
overlying future rights. However, the court also required any future exercise of that
preserved right be exercised “in accordance with the terms of the Physical Solution
herein.” The Physical Solution, by allocating the remaining available native safe yield to
holders of priority rights, effectively subordinated Willis’s future exercise of their
correlative rights (at least insofar as Willis sought to use water for nondomestic purposes)
to the present exercise by correlative rights holders for existing domestic and
nondomestic uses. The Physical Solution left open the potential that Willis members
46.
could obtain access to native water for domestic uses on their overlying property and
could draw water from the native safe yield for such purposes without any replacement
assessment. We conclude the Physical Solution, by preserving but subordinating Willis’s
access to the native safe yield, comports with California law as construed and applied in
Long Valley.14
Willis contends we should not assess the Physical Solution under Long Valley
because the rationale of Wright v. Goleta Water Dist. (1985) 174 Cal.App.3d 74 (Wright)
forecloses application of Long Valley in the present case. In Wright, the trial court
applied Long Valley to subordinate the unexercised rights of overlying landowners below
all active producers, including overlying users and appropriators. (Wright, supra, at p.
82.) The Wright court, reversing the judgment, concluded that even though the
Constitution “applies to ground water as well as stream water and courts have enjoyed
concurrent jurisdiction with the Board to enforce it [citation], absent a statutory scheme
for a comprehensive determination of all ground water rights, the application of Long
Valley to a private adjudication would allow prospective rights of overlying landowners
to be subject to the vagaries of an individual plaintiff’s pleading without adequate due
process protections.” (Wright, at p. 89.) Wright noted it rejected reliance on Long Valley
to uphold the judgment before it because, unlike the Long Valley action, the judgment
14In In re Water of Hallett Creek Stream System (1988) 44 Cal.3d 448 (Hallett Creek),
our Supreme Court again upheld the authority to subordinate an unexercised correlative right to
existing users of the water. There, the trial court’s decree followed Long Valley by holding that,
although the United States had riparian rights to the use of waters in the Hallett Creek Stream
System, it had not yet exercised those rights and any future exercise of that dormant right could
be subject to a later decree subordinating those correlatively held rights to other existing uses.
(Hallett Creek, supra, at p. 471.) The Hallett Creek court followed Long Valley in creating the
possibility that a future use might not be allowed: “Although, … the federal government’s
riparian rights may have theoretically ‘attached’ when the land was reserved from the public
domain, the Board may nevertheless order such rights subordinated to appropriative ‘rights
currently being exercised,’ and may further ‘determine that the future riparian right [of the
federal government] shall have a lower priority than any uses of water it authorizes before the
riparian in fact attempts to exercise his right.’ ([Long Valley, supra, ] 25 Cal.3d at p. 359.)”
(Hallett Creek, supra, at p. 471.) The Hallett Creek court concluded “[t]his provision of the trial
court’s decree was fully consistent with the principles set forth in [Long Valley].” (Id. at p. 472.)
47.
Wright reviewed arose from an action that was not a comprehensive adjudication in
which all impacted owners had been given the opportunity to appear and defend their
interests.15
In contrast to Wright, the trial court here found (and Willis does not contest) that
the present action was a comprehensive adjudication under California law in which “all
potential claimants to Basin groundwater have been joined [and] have been provided
notice and an opportunity to be heard regarding their respective claim.” We are
convinced the due process concerns which undergirded the Wright court’s rejection of the
trial court’s reliance on Long Valley—i.e., that a comprehensive adjudication allocating
that resource would be improper unless all overlying owners received “notice and an
opportunity to resist any interference with them [because a] court has no jurisdiction over
an absent party and its judgment cannot bind him” (Wright, supra, 174 Cal.App.3d at p.
88)—has no application here. All potential overlying rights holders (including Willis)
15Willis appears to suggest in their reply briefs that Wright rejected application of Long
Valley because there was no express legislative scheme delegating authority to courts to
subordinate unexercised overlying rights, rather than because of the noncomprehensive
proceeding examined in Wright. Accordingly, Willis suggests that the absence of a legislative
delegation deprived the trial court here of authority to prioritize water rights among overliers in a
manner which subordinated Willis’s unexercised rights to those currently pumping. We disagree
with Willis’s reading of Wright. Wright extensively noted the principles relied on by Willis, i.e.,
the various courts stating “that rights of a riparian owner are not destroyed or impaired by
nonuse, that the riparian right exists whether exercised or not, that a dormant riparian right is
paramount to active appropriative rights, and that it may be proper for the trial court to retain
jurisdiction over the matter so that the riparian’s prospective right can be quantified at the time
he decides to exercise it ([Long Valley, supra, ] 25 Cal.3d at p. 347).” (Wright, supra, 174
Cal.App.3d at p. 87.) After noting those principles, Wright stated, “‘Such principles, however,
are limited in their application to a context in which water rights are determined through
piecemeal adjudication that will settle disputes among only a small number of those persons who
claim a right to the use of water in a stream system. The judgment in this type of adjudication
necessarily can bind only those who are parties to the litigation …. The most that a trial court
can do in such a case, therefore, is to retain jurisdiction over prospective riparian claims.’”
(Ibid., italics added, quoting Long Valley, supra, at p. 347.) However, Wright then stated,
“Although it is theoretically possible that judicial determination may provide complete resolution
of water rights in an underground basin this action did not purport to do so.” (Id. at p. 88, italics
added.) We read Wright as focused not on whether there was a legislative delegation of
authority, but instead on whether the proceeding was a comprehensive adjudication.
48.
had notice and opportunity to resist infringement upon their rights and are not “absent
parties.”
We conclude the present action constitutes the type of comprehensive adjudication
to which the principles of Long Valley may be applied, which renders Wright inapposite.
Willis cites Barstow, supra, 23 Cal.4th at page 1249, footnote 13, to argue Barstow
approved Wright’s refusal to apply Long Valley in the absence of a comprehensive
statutory scheme applicable to groundwater adjudications and, because no such statutory
scheme was extant during the course of the present litigation, Barstow precludes
application of Long Valley here. We reject Willis’s reading of that footnote as precluding
a court from applying Long Valley absent a statutory scheme. Instead, the Barstow court
(after noting the Wright decision) went on to state: “Although we do not address the
question here, Wright does suggest that, in theory at least, a trial court could apply the
Long Valley riparian right principles to reduce a landowner’s future overlying water
right use below a current but unreasonable or wasteful usage, as long as the trial court
provided the owners with the same notice or due process protections afforded the
riparian owners under the Water Code. [Citations.]” (Barstow, supra, at p. 1249, fn. 13,
italics added.) Willis does not suggest that they (or any other overlier) did not receive the
protections of “the same notice or due process protections afforded the riparian owners
under the Water Code” in the present comprehensive adjudication. We therefore
conclude nothing in Barstow suggests the principles of Long Valley cannot be applied to
the present proceeding.
We conclude, under Long Valley and Barstow, that equitable apportionment
principles may be employed when determining how to allocate water among competing
claimants with equivalent priorities as part of a physical solution addressing an
overdrafted aquifer. We also conclude those cases permit a court, when crafting such a
physical solution, to include provisions which subordinate (or otherwise condition) future
uses by dormant rights holders to existing uses by other holders of equivalent priority, as
49.
long as that physical solution was entered after such subordinated parties were given
notice and opportunity to participate in a comprehensive water rights adjudication
proceeding, and the final physical solution appropriately recognizes and does not purport
to wholly extinguish the correlatively held overlying rights of those subordinated
dormant rights holders.
B. The Physical Solution’s Allocation of the Native Safe Yield Does Not
Violate California’s Principles Promoting the Reasonable and
Beneficial Use of Water
An overarching consideration for any water rights adjudication is that the
judgment should promote California’s policy that available water be put to the maximum
beneficial use possible, with waste or unreasonable use prevented, under the
circumstances presented. (Barstow, supra, 23 Cal.4th at pp. 1241–1242.) Barstow
explained this constitutional imperative requires that:
“‘[T]he trial court … determines[] whether [overlying rights holders],
considering all the needs of those in the particular water field, are putting
the waters to any reasonable beneficial uses, giving consideration to all
factors involved, including reasonable methods of use and reasonable
methods of diversion.…’ ([Tulare, supra, ]3 Cal.2d [at pp.] 524–525 ….)
We have reiterated these principles in subsequent cases, observing that
although ‘what is a reasonable use of water depends on the circumstances
of each case, such an inquiry cannot be resolved in vacuo isolated from
statewide considerations of transcendent importance. Paramount among
these we see the ever increasing need for the conservation of water in this
state, an inescapable reality of life quite apart from its express recognition
in the 1928 amendment.’ (Joslin v. Marin Mun. Water Dist.[, supra, ]67
Cal.2d [at p. ]140, fn. omitted.)” (Barstow, at p. 1242.)
Willis contends the Physical Solution violates these principles in five ways: (1) it
allocates the available native safe yield on a permanent basis; (2) it grants certain of the
parties the ability to transfer and/or carryover any allocated amount; (3) it was not based
on an adequate evaluation of the reasonableness of each individual’s existing use; (4) it
awarded a small water right as an incentive award to the Wood representative; and (5) it
50.
deprived Willis of any share of the native safe yield based on the assumption all future
pumping by Willis’s members would be unreasonable.
Willis first asserts allocating the native safe yield on a “permanent” basis could
violate the “reasonable and beneficial use” requirement at some point in the future.
Specifically, Willis argues that a particular user who received an allocation might change
its current use from a currently “reasonable” use to a later “unreasonable” use, and there
is no mechanism within the Physical Solution designed to detect such changed usages or
to allow for modification of the allocations to prevent such unreasonable uses. Even
assuming this claim is preserved,16 the courts have recognized that physical solutions are
designed “to achieve a practical allocation of water to competing interests.” (Barstow,
supra, 23 Cal.4th at p. 1250, italics added; accord, Imperial Irrigation Dist. v. State Wat.
Resources Control Bd., supra, 225 Cal.App.3d at p. 572.) Willis’s implied suggestion
that allocations may not have permanence but must instead be malleable appears
inconsistent with achieving a “practical” allocation of water among competing interests.
(Ibid.)
Indeed, other courts have implicitly concluded physical solutions may incorporate
“permanent” allocations. (See generally Long Valley, supra, 25 Cal.3d 339; Hallett
Creek, supra, 44 Cal.3d 448; Pasadena, supra, 33 Cal.2d 908.) Willis’s contrary
suggestion—that allocations must be subject to revisitation and relitigation at unspecified
16It
is axiomatic that a party who fails to object below forfeits its claim of error. (K.C.
Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th
939, 950.) Willis has not directed our attention to that part of the record in which they objected
below that the absence of a monitoring and adjustment system rendered the Physical Solution
incompatible with California’s “reasonable and beneficial use” requirement, which permits us to
deem the argument forfeited. (In re S.C. (2006) 138 Cal.App.4th 396, 406–407 [“When an
appellant’s brief makes no reference to the pages of the record where a point can be found, an
appellate court need not search through the record in an effort to discover the point purportedly
made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be
forfeited”].) While the absence of timely objection below would ordinarily entirely bar Willis
from raising this claim for the first time on appeal (Save Our Heritage Organisation v. City of
San Diego (2015) 237 Cal.App.4th 163, 181), we nevertheless evaluate this claim.
51.
periodic intervals—is unsupported by any relevant legal authority. Willis cites dicta from
Joslin v. Marin Mun. Water Dist., supra, 67 Cal.2d at page 143 for the proposition that
“‘reasonable and beneficial use’ determinations must constantly be reevaluated.” Joslin,
however, did not address the requirements of a valid physical solution, nor does it contain
language suggesting a court must constantly revisit water rights adjudications.
Moreover, Willis’s suggestion that the Physical Solution is fatally insufficient
because the court is powerless to modify allocations to prevent subsequent unreasonable
uses ignores section 6.5 of the Physical Solution. That section specifies the court has
reserved “full jurisdiction … for the purpose of enabling the Court, upon a motion of a
Party or Parties … to make such further or supplemental order or directions as may be
necessary or appropriate to interpret, enforce, administer or carry out this Judgment and
to provide for such other matters as are not contemplated by this Judgment and which
might occur in the future, and which if not provided for would defeat the purpose of this
Judgment.” (Italics added.) The declared purposes of the judgment and Physical
Solution are: (1) to “further[] … the State Constitution mandate and the State water
policy” and to “establish[] a legal and practical means for making the maximum
reasonable and beneficial use of the waters of the Basin … in order to meet the
reasonable and beneficial use requirements of water users in the Basin” (Physical
Solution, § 7.1); and (2) to “provide flexibility and adaptability to allow the Court to use
existing and future technological, social, institutional, and economic options in order to
maximize reasonable and beneficial water use in the Basin.” (Physical Solution, § 7.2.)
Because these declared purposes include “maximiz[ing] reasonable and beneficial use of
the waters,” and the court retained jurisdiction to address matters that “might occur in the
future, and which if not provided for would defeat the purpose of this Judgment” (italics
added), there is adequate protection against potential future uses which might transgress
the reasonable and beneficial use mandates.
52.
Willis next asserts the transfer and carryover provisions offend the reasonable and
beneficial use mandates of California water law. Willis cites no authority suggesting
either the transfer or carryover provisions are per se invalid under California law. 17
Instead, Willis peremptorily argues that, if a correlative rights holder does not use his full
allotment in any given year, the unused portion should be made available for use by
Willis as a correlative right holder. Willis claims the transfer provisions allow any holder
of an allotment to transfer his production rights “to a party with a water right inferior to
[Willis], or even to a usurper with no water rights at all,” and that the absence of any
limits on how the transferee might use that water carries the potential to violate the
reasonable and beneficial use mandate. However, Willis appears to misread the transfer
provisions.
There are limitations on who can make or receive a transfer. For example, “[t]he
pumping rights of Small Pumper Class Members are not transferable separately from the
parcel of property on which the water is pumped, provided however a Small Pumper
Class Member may move their water right to another parcel owned by that Small Pumper
Class Member with approval of the Court.” (Physical Solution, § 5.1.3.3.) As to the
water allocated to the mutual water companies, it appears such production right may only
be transferred (1) to or amongst other members of the Antelope Valley United Mutuals
Group or (2) to a PWS who has assumed service to their member’s shareholders.
(Physical Solution, §§ 16.3, 16.3.1.) Further, while certain allotments may be transferred
to nonoverlying production rights holders (i.e., the PWS as defined in exhibit 3, see
Physical Solution, § 3.5.21) by overlying production rights holders for “use[] anywhere
17Willis, citing no California law barring such provisions, instead argues the stipulating
parties “admitted” those provisions were void under California law. While the stipulating parties
did recite that they agreed to provisions “only available by stipulation,” including the transfer
and carryover provisions, Willis ignores that those stipulating parties also agreed to a host of
other offsetting provisions made available by the stipulation, including substantial cuts to water
allocations “compared with what they claim under California … and … federal law,” placing
certain litigation burdens on the PWS, assigning certain fee obligations to the PWS, etc.
53.
in the transferee’s service area” (Physical Solution, § 16.2), such transfer would not result
in a party with a water right inferior to Willis obtaining transferred water. More
importantly, Willis does not articulate how the subsequent use of any water so
transferred, either by a PWS for municipal purposes or by any of the other permissible
transferees of equivalent priority, would necessarily offend the requirement that available
water be reasonably and beneficially used by permissible transferees with priority rights
equivalent to Willis’s.
Willis next asserts the “carryover” provisions somehow violate the reasonable and
beneficial use mandates of California law. Under section 15.3 of the Physical Solution,
certain producers who do not use their full production right in any year may “carry over”
its right to the unproduced portion for up to 10 years and (at the end of this 10-year
period) may enter into a “storage agreement” with the watermaster to store unproduced
portions. If the carryover water is not “converted” to a storage agreement, it “reverts to
the benefit of the Basin” and the producer forfeits the unused allocation. Willis
peremptorily contends this provision “ignores the mandate of the reasonable and
beneficial use doctrine [that available water should] be put to beneficial use to the fullest
extent to which they are capable,” apparently because Willis contends that draining the
basin of every available acre-foot in every given year is superior to flexibly managing
available water supplies to adjust for wet and dry years. There was substantial evidence
presented below articulating how these transfer and storage provisions do maximize
putting all available water to beneficial use to the fullest extent possible.18 The court
18Charles Binder, the civil engineer who acted as a watermaster for another watershed,
testified how these transfer and carryover provisions of the Physical Solution further the goals of
balancing and maximizing all available water supplies to meet the water requirements of users in
the basin. He explained these provisions allow water users and the watermaster to coordinate the
conjunctive use of all available water (both the native safe yield and available imported water to
supplement the native safe yield) because it will encourage and facilitate the use of more
imported water use during wet years (when imported water is more available for purchase by
users) by allowing users to “bank” and later use available native safe yield groundwater to draw
upon during dry years (when imported water would be less available).
54.
found these carryover and transfer provisions were reasonable and beneficial, and
essential in the management of the basin, precisely because many provisions of the
Physical Solution (including allowing parties to store water) were “likely to lead to
additional importation of water into the Basin and thus additional return flows which will
help to restore groundwater levels in the Basin.”
Willis next asserts the court adopted the Physical Solution without an “adequate”
examination of whether the water allotments were being devoted to “reasonable and
beneficial” purposes. We disagree. The court heard extensive evidence from two
experts, Robert Beeby and Robert C. Wagner, who opined the parties who were presently
using water (and received allocations from the native safe yield) were reasonably using
the amounts of water they extracted and were devoting it to beneficial purposes. 19 Willis
asserts this inquiry was “inadequate” because Beeby did not conduct an individualized
inquiry of every pumper’s use, methods of use, or the efficiency of the particular use in
the context of an overdrafted basin relative to other overlying landowners. However,
Willis cites no law suggesting the reasonable and beneficial use evaluation is prima facia
inadequate without such an individualized and comparative analysis, nor did Willis
proffer testimony suggesting any of the uses described by Wagner or Beeby as prevalent
in the AVAA or as claimed by the overliers were “unreasonable” under applicable
California law. We conclude the court’s inquiry into the reasonable and beneficial uses
of the water by the allotment holders was adequate and that the evidence supports the
trial court’s findings thereon.
19Beeby’s testimony was supported by detailed spreadsheets, which used the data drawn
from the evidence submitted during the Phase 4 trial, identifying numerous users’ pre-rampdown
average yearly pumping, the acres to which such water was applied, and identifying the claimed
beneficial uses for such water. This data provided the basis for his conclusion that, with limited
exceptions, the amounts drawn were being reasonably used for beneficial purposes. Wagner also
reviewed the materials documenting the amounts of water historically used by the various parties
and the types of uses to which they devoted that water, and opined (1) the purposes to which the
parties to the Physical Solution historically applied their water were recognized beneficial uses
under applicable California law, and (2) the amount of water used by them for such beneficial
purposes fell within the appropriate parameters for such uses.
55.
Willis next asserts the “incentive award” allocated to the Wood representative, in
the amount of 5 afy, also violates California’s requirement that water be reasonably and
beneficially used.20 Willis complains that this allotment was excessive in light of
Wood’s testimony as to his “needs,” and this disconnect violates the reasonable and
beneficial use limitations of California law. However, Wood testified he used
somewhere between 3 to 4.5 afy, all of which he used for his 10-acre parcel. These
amounts were consumed for his residence and to irrigate just one of his 10 acres. The
evidence does not support Willis’s claim that such an allotment was excessive in light of
the evidence of Mr. Wood’s “needs.” Willis also complains the “excessive” allotment
would likely be “sold for a substantial profit.” However, the additional production right
accorded to Wood specified it “shall not be transferable and is otherwise subject to the
provisions of this Judgment,” obviating this concern by Willis.
Willis finally claims the judgment and Physical Solution violate California’s
mandate seeking to promote the reasonable and beneficial use of water because it was
approved based on the unsupported assumption that future use by Willis of the native safe
yield would be “per se unreasonable.” The court’s findings, however, contained no
determination that any and all future uses by Willis would constitute uses that were per se
unreasonable or nonbeneficial. Instead, the court found the basin’s available native safe
yield was insufficient to support even the present level of pumping by correlative rights
holders for their current reasonable and beneficial purposes and that the long-term health
of the basin made long-range planning and investment essential to solving these overdraft
conditions. The court concluded an essential precondition for such long-term planning
and investment was certainty in the quantification of pumping rights. And, absent limits
on Willis’s future pumping (the amount of which was speculative and if unrestrained
20The Physical Solution allowed Wood’s members to produce up to 3 afy, but the
aggregate production for the entire class was limited to 3,806.4 afy. (Physical Solution, § 5.1.3.)
However, “[i]n recognition of his service as class representative, Richard Wood has a Production
Right of up to five [afy] for reasonable and beneficial use on his parcel.” (Id., § 5.1.3.8.)
56.
could deprive long-established overlying production rights of any available native safe
yield and render the present allocations legally meaningless), permitting unexercised
rights to be exercised without limitation would “create an unacceptable measure of
uncertainty and risk of harm to the public” (including Edwards Air Force Base, existing
overlying pumpers and persons reliant on public water suppliers). It would also
unreasonably inhibit the planning and investment necessary to solve the overdraft
conditions in this basin. Thus, while the court did find Willis’s future needs to be
“speculative,” and that allowing Willis access to the native safe yield with no limitations
would unreasonably “create an unacceptable measure of uncertainty and risk of harm to
the public,” it did not find Willis’s future uses would be per se unreasonable within the
meaning of California’s injunction that water be put to “reasonable and beneficial uses.”
C. Willis’s Miscellaneous Claims of Alleged Incompatibility Between
California Law and the Judgment and Physical Solution
Willis raises a host of other claims asserting the court’s judgment and Physical
Solution should be reversed because the court allegedly violated California law, both
procedurally and substantively, when it adopted the Physical Solution.
Willis first argues California requires “‘the trial court to admit evidence relating to
possible physical solutions’” (quoting City of Lodi v. East Bay Mun. Utility Dist. (1936) 7
Cal.2d 316, 341), and contends the court violated this mandate when it refused to admit
evidence of multiple alternative physical solutions proffered by Willis. However, the
language cited by Willis does not mandate a trial court to admit evidence of all
conceivable alternative physical solutions. Instead, the quoted language was the Lodi
court’s observation that, in the case before it, numerous alternative physical solutions
were proposed at trial, none of which were acceptable to all parties, and “[t]he trial court
apparently took the view that none of them could be enforced by it unless the interested
parties both agreed thereto. That is not the law. Since the adoption of the 1928
constitutional amendment, it is not only within the power but it is also the duty of the trial
court to admit evidence relating to possible physical solutions, and if none is satisfactory
57.
to it to suggest on its own motion such physical solution. ([Tulare], supra, [3 Cal.2d] at
p. 574.) The court possesses the power to enforce such solution regardless of whether the
parties agree.” (Lodi, at p. 341.)
In context, Lodi merely held a court may and should consider adopting a physical
solution whether or not all parties agree to it. (Accord, California American Water v.
City of Seaside, supra, 183 Cal.App.4th at p. 480 [courts have the power and duty to
“suggest a physical solution where necessary, and they have ‘the power to enforce such
solution regardless of whether the parties agree’”].) It did not hold a court must consider
every proffered alternative physical solution. Subsequent courts have described the trial
court’s duty as one that requires it to consider “whether there is a physical solution of the
problem that will avoid waste and which will not unreasonably or adversely affect the
rights of the parties” and “to work out, if possible, a physical solution, and if none is
suggested by the parties to work out one independently of the parties.” (Rancho Santa
Margarita v. Vail, supra, 11 Cal.2d at pp. 558–559, citing City of Lodi v. East Bay Mun.
Utility Dist., supra, 7 Cal.2d at p. 341 and Tulare, supra, 3 Cal.2d at p. 575.) Here, the
court fulfilled its duty, and declining to admit evidence of Willis’s alternative proposals
did not violate that duty.
Willis also appears to argue various substantive provisions of the Physical
Solution transgress California law, asserting: (1) the new water production application
procedure is so onerous as to constitute a “poison pill”; (2) the watermaster board as
constituted creates a board membership that is inherently biased against Willis’s
members; (3) the fees for replacement water are “unfair” because they are not currently
knowable; (4) Willis’s members are deprived of “return flows” for water they “import”;
(5) any unused amounts allocated to the United States for its “federal reserved rights”
were improperly diverted to certain public water suppliers; (6) Willis’s members were not
treated equally with Wood’s members; and (7) the so-called “drought provisions” are
unfair. Willis does not articulate how these provisions violate California water rights
58.
laws, except insofar as Willis characterizes these provisions of the Physical Solution as
“unfair.” While we will consider these claims as part of our evaluation of whether the
measures selected for inclusion into the Physical Solution constituted an abuse of
discretion (see pt. VIII, post), Willis cites nothing to suggest any of these provisions are
inherently violative of California’s governing water rights law.
VII
THE PHYSICAL SOLUTION AND SETTLEMENT ARE CONSISTENT
Willis argues that, even assuming the Physical Solution is permissible under
governing California law, the Settlement (and the court’s entry of judgment on that
Settlement) imposed an additional condition that constrained any final Physical Solution:
that the Physical Solution be consistent with the terms of the Settlement. Willis asserts
the Physical Solution is not consistent with the Settlement, and this separate violation
mandates reversal. Willis also extensively argues principles of res judicata, equitable
estoppel, and judicial estoppel precluded the PWS from seeking (or the court from
entering) any judgment or Physical Solution that was inconsistent with the terms of the
Settlement. While these bedrock principles are correct, and indeed respondents do not
dispute these authorities, our conclusion the Physical Solution is consistent with the
Settlement renders moot any extended discussion of these principles.
In order to assess the consistency between the Settlement and the ultimate 2015
judgment and Physical Solution, we must first examine what the Settlement and 2011
Judgment did and, of equal import, did not provide. Under the Settlement, the parties
resolved the PWS’s prescription claims against Willis: Willis agreed not to contest the
PWS’s entitlement to receive up to 15 percent of a specified amount of the native safe
yield; the PWS agreed not to contest Willis’s entitlement to their correlative share of the
remaining 85 percent; and Willis acknowledged other overliers may have the right to
share in that remaining 85 percent “correlatively with [Willis].” The parties also
acknowledged a groundwater management plan was necessary to ensure that pumping
59.
from the basin did not exceed its safe yield; that the Settlement would become part of the
Physical Solution entered by the court to manage the basin; that (upon completion of a
seven-year “transition period”) any pumping from the basin above the native safe yield
would be subject to a replacement water assessment; and that any party pumping in
excess of their annual share of the native safe yield would be responsible for paying for
replacement water to cover that excessive pumping. Finally, the parties agreed “to be
part of such a Physical Solution to the extent it is consistent with the terms of this
[Settlement],” and to reserve the court’s jurisdiction over Willis and the PWS for the
limited purpose of merging their agreement into that Physical Solution.
Willis argues the judgment and Physical Solution should be reversed, based on the
purported inconsistency of the Physical Solution with the Settlement, because the
Physical Solution (1) does not allocate a portion of the native safe yield to Willis, (2)
does not give their correlative rights in the 85 percent of the native safe yield any
recognition, (3) improperly restricts them to pumping water for which they must pay a
water replacement assessment, and (4) denies Willis the right to “imported water return
flows” that was preserved by the Settlement. We review Willis’s claims of inconsistency
de novo. (California Building Industry Assn. v. Bay Area Air Quality Management Dist.
(2016) 2 Cal.App.5th 1067, 1081.)
We reject Willis’s first claim—that the Physical Solution is inconsistent with the
Settlement because the former did not allocate a portion of the native safe yield to
Willis—because nothing in the Settlement required the court (much less nonparties to the
Settlement with competing correlative rights claims to the native safe yield) to allocate
any portion of the native safe yield to Willis as part of the Physical Solution. Neither the
Settlement nor the 2011 Judgment purported to determine the final amounts of the native
safe yield (if any) that any subsequent Physical Solution would allocate to Willis under
their correlative rights. To the contrary, the Settlement specifically recognized it “shall
not … be construed to prejudice the rights, claims, or defenses of any persons who are
60.
not Settling Parties, or … to prejudice the rights, claims, or defenses (whether asserted or
potential) of any Settling Party vis-à-vis any non-settling party.” It further acknowledged
there could be “a subsequent Court decision whereby the Court determines that [Willis’s]
Members do not have Overlying Rights.” Willis specifically recognized the Settlement
had no impact on how the court would subsequently resolve the inter se allocations
among the correlative rights holders: in support of entry of the 2011 Judgment approving
the settlement, Willis argued objections of various nonparties to approval of the
settlement should be rejected precisely because “these non-parties lack standing to
contest the proposed settlement where, as here, their legal rights are not prejudiced by
it.”21
We reject Willis’s second claim—that the Physical Solution is inconsistent with
the Settlement because the former did not give their correlative rights in the 85 percent of
the native safe yield any recognition—for analogous reasons: the Physical Solution does
acknowledge and preserve Willis’s correlative rights, because the trial court’s judgment
stated it found “[Willis’s] members have an overlying right that is to be exercised in
accordance with the Physical Solution herein.” The fact the Physical Solution requires
Willis (along with all other correlative rights holders) to exercise their correlative rights
21For example, Willis explained why objections to the settlement interposed by the
Antelope Valley Groundwater Association (AGWA) should be rejected, arguing “AGWA
complains that the Settlement does not resolve potential subordination claims that AGWA or
other landowners could assert in the future against members of the Willis Class. But, of course,
consistent with the general principle that the Settlement does not prejudice the rights of non-
parties, the Stipulation could not properly preclude AGWA from bringing such claims. This
Settlement properly compromises only the claims and defenses asserted by the Settling Parties
vis-à-vis each other. AGWA’s hypothetical prescription claims will of necessity have to be dealt
with when AGWA or others assert them. The fact that the Settlement does not resolve these
hypothetical issues between the Class and other landowners does not in any way undermine the
validity and efficacy of the Settlement. Moreover, the Settlement expressly provides that the
Court retains jurisdiction over the Class for purposes of a future Physical Solution, which,
presumably, will address these issues.” Similarly, Willis (explaining why Bolthouse Farm’s
objection that the Settlement left unresolved the issue of “‘subordination of the dormant
landowners’ pumping rights’” was meritless) argued the “Settlement merely includes the
[PWS’s] agreement not to contest the correlative rights of the Willis Class, but that agreement is
not binding on Bolthouse or other non-settling parties.”
61.
under the conditions imposed by the Physical Solution is not inconsistent with the
Settlement.
Willis’s first two claims of inconsistency seek to transmogrify what the Settlement
did—preserving Willis’s correlative rights to a portion of the native safe yield as against
the PWS prescriptive claims to that native safe yield—into a right to pump from the
native safe yield in derogation of the correlative rights in the native safe yield held by
nonsettling overliers. The judgment and Physical Solution are consistent with the
Settlement because (1) Willis’s correlative water rights were preserved, albeit under
conditions where equitably apportioning the available native safe yield among all
overliers required severe limits on pumping by all correlative rights holders (including
Willis); and (2) it imposed subsidiary additional and necessary requirements on all
correlative rights holders, including that all pumpers (including Willis) who exceed their
allotted share of the native safe yield must pay for replacement water. Those limits and
conditions are not inconsistent with the Settlement.
In describing the contemplated section V., “Management of the Basin,” paragraph
D. of the Settlement specifically provided:
“The Settling Parties recognize the right of any Settling Party to produce
groundwater from the Basin above their share of the Native Safe Yield,
subject to the Physical Solution and to any Replacement Assessment. The
Settling Parties agree to provide or purchase Imported Water for all
groundwater pumping that exceeds a Settling Party’s share of the Federally
Adjusted Native Safe Yield. The Settling Parties agree that any Settling
Party who produces more than its annual share of the Federally Adjusted
Native Safe Yield in any year will be responsible to provide Replacement
Water or pay a Replacement Assessment to the Watermaster so that the
Watermaster can purchase Imported Water to recharge the Basin.” (Italics
added.)
These provisions demonstrate the Settlement contemplated that, if any party pumped
groundwater in excess of their assigned share of the available native safe yield, they
would be responsible for paying for replacement water, either by providing it themselves
or by paying a replacement assessment to the watermaster to acquire replacement water.
62.
Willis next argues the Physical Solution is inconsistent with the Settlement
because the trial court’s findings on (and allocation of) return flow rights under the
Physical Solution denied Willis the right to imported water return flows that was
preserved to them under the Settlement.22 Although Willis did proffer an alternative
Physical Solution with a different allocation of return flow rights, Willis cites nothing in
the appellate record containing any objection at trial that the trial court’s planned
allocation of return flow rights was inconsistent with the Settlement. Accordingly, this
claim of error is not preserved. (See fn. 16, ante.) Moreover, even assuming the issue
was preserved, we would reject this claim of “inconsistency” on its merits. The
Settlement provided only that each of the parties to the Settlement shall “have the right to
recapture Return Flows from Imported Water that they put to reasonable and beneficial
use in the Basin, consistent with California law.” (Italics added.) Willis does not
demonstrate that, assuming their future pumping required them to pay a replacement
assessment to the watermaster, which in turn is used by the watermaster to purchase
replacement water, Willis is entitled, “consistent with California law,” to return flow
rights generated by such replacement water. We cannot conclude the Physical Solution’s
treatment of return flows from imported water is inconsistent with the Settlement.
Indeed, return flow rights ordinarily attach only to imported water. The
Settlement specifically defined “imported water,” within the intent of the Settlement, to
exclude water purchased via replacement assessments as “imported water.” (See
Settlement, § III., ¶ J. [“Imported Water does not include water purchased by the
Watermaster with Replacement Assessments”].) Thus, it appears the parties to the
Settlement agreed that, while they would retain the right to return flows to the extent they
22The court made specific findings on the allocation of return flow rights, finding that
return flow rights exist with respect to foreign water brought into the basin which augments the
Basin’s groundwater, and concluding “the right to return flows from imported State Water
Project water is properly allocated as set forth in paragraph 5.2 and Exhibit 8 of the Judgment
and Physical Solution.”
63.
imported water into the basin, they would exclude “replacement water” from the type of
water qualifying as “imported water.”
Willis appears to raise additional claims of inconsistency between the Settlement
and the Physical Solution, albeit without developing those claims. For example, they
complain the Physical Solution requires Willis to seek watermaster approval and
“endur[e] a burdensome and expensive discretionary process” before they are entitled to
pump any groundwater. Willis does not identify what part of the Settlement is
inconsistent with the process for watermaster approval specified in the Physical Solution.
To the contrary, the Settlement provided: “The Settling Parties agree that the Basin has
limited water resources and that they should use their best efforts to conserve and
maximize reasonable and beneficial use. The Settling Parties further agree that there is a
need to create a groundwater management plan to ensure that pumping from the Basin
does not exceed the Basin’s Total Safe Yield and that the Court should appoint a
Watermaster to oversee the management of the Basin’s water resources.” Willis does not
explain how the contemplated “groundwater management plan” and appointment of a
“Watermaster to oversee the management” is inconsistent with court-adopted regulatory
provisions that aid the watermaster to monitor, manage and control extractions and
replacements throughout the basin.
Willis’s next asserted “inconsistency” is that the Physical Solution “restricts all
pumping [by Willis] to imported replacement water … for which a replacement
assessment must be paid, perhaps even for simple domestic use.” Although Willis
presumably is referring to the “New Production” procedures of the Physical Solution,
Willis does not articulate how paying a replacement assessment for pumping above their
allotted share of the native safe yield (as is required for every pumper) is inconsistent
with the Settlement.
Willis next argues the Physical Solution is inconsistent with the Settlement insofar
as they are disallowed from using any portion of the unused federal reserved right.
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Again, Willis cites nothing in the appellate record containing any objection at trial that
denial of access to unused federal reserved rights was inconsistent with the Settlement,
and therefore this claim of error is not preserved. (See fn. 16, ante.) Moreover, the
Settlement only preserved to Willis a correlative share of 85 percent of the native safe
yield after deduction of federally reserved rights. The Settlement did not, and indeed
could not, mandate how either the federal government or the court allocated any unused
portion of that right. Thus, the Physical Solution’s allocation of any unused federal
allotment was not inconsistent with the Settlement.
Finally, Willis argues the Physical Solution was inconsistent with the Settlement
because the Physical Solution allocated more to the PWS than contemplated by the
Settlement. Even assuming this claim was preserved below, Willis misreads the
Settlement. The Physical Solution assigned 12,255 afy as the annual allocation of
production rights to the PWS who participated in the settlement.23 Willis agreed these
settling PWS parties would be allocated up to 15 percent of the basin’s adjusted native
safe yield, which the Settlement defined as the annual native safe yield reduced only by
the “actual annual production of the United States during the prior year,” and Willis has
not demonstrated that an assigned production right of 12,255 afy exceeded the
Settlement’s 15 percent limitation.
We conclude the scope and impact of the Settlement was limited. It only
protected Willis’s interest in the native safe yield, which was at that time undetermined,
from being further eroded by the potential that the prescriptive interest in the native safe
yield being asserted by the settling PWS might exceed 15 percent of the native safe yield.
The parties acknowledged it did not and could not constrain the court in determining (as
part of the contours of the Physical Solution) how the remaining 85 percent of the native
23Although the amounts allocated to all public water suppliers as production rights (as
included in exhibit 3 of the Physical Solution) was 12,345 afy, we necessarily exclude the 90 afy
production rights allocated to Boron Community Services District and West Valley County
Water District because they were not among the PWS who were parties to the Settlement.
65.
safe yield might ultimately be equitably apportioned among all correlative rights holders.
Accordingly, and for the foregoing reasons, we reject Willis’s claim that the 2015
judgment and Physical Solution was inconsistent with the Settlement.
VIII
WILLIS FAILS TO SHOW THE PROVISIONS CONTAINED IN THE PHYSICAL
SOLUTION WERE AN ABUSE OF DISCRETION
As discussed above, when “[a] trial court exercises its equitable powers in
approving a physical solution and entering the judgment, … review of that judgment is
under the abuse of discretion standard of review.” (Hillside Memorial Park & Mortuary
v. Golden State Water Co., supra, 205 Cal.App.4th at p. 549; see Barstow, supra, 23
Cal.4th at p. 1256.) A component part of the Physical Solution here, as elsewhere, can
include allocating water to the competing claimants. (See generally Long Valley, supra,
25 Cal.3d 339; Pasadena, supra, 33 Cal.2d 908; Barstow, supra, at p. 1250 [“a trial court
may impose a physical solution to achieve a practical allocation of water to competing
interests”].) A court is entitled to employ equitable apportionment principles in crafting
how to allocate production rights in the available native safe yield among the competing
correlative rights holders. (Barstow, at pp. 1248, 1249 [“within limits, a trial court may
use its equitable powers to implement a physical solution”].) We therefore examine
whether Willis has shown the structure imposed by the Physical Solution here, including
the allocations of the available native safe yield, was an abuse of the trial court’s
discretion. (Denham v. Superior Court, supra, 2 Cal.3d at p. 566 [“The burden is on the
party complaining to establish an abuse of discretion, and unless a clear case of abuse is
shown … a reviewing court will not substitute its opinion and thereby divest the trial
court of its discretionary power”].)
A. The Court’s Findings
The trial court found (and Willis does not dispute) that a “physical solution … is
required now” to arrest the chronic overdraft conditions that had plagued the basin for
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decades and that threatened continued harm to the basin. It further found the “parties
cannot continue to exercise their overlying rights in an unregulated manner because that
will continue to harm the Basin.” Accordingly, the court found that, because of the
basin’s severe overdraft and remaining undeveloped land, “existing pumping must be
limited and constraints on new pumping are required” to protect the basin and the public
at large and that “water allocations and reasonable conditions on new pumping are
required in the Physical Solution.”
The court’s final allocations of the available native safe yield, and the reasons it
made those allocations, were extensively explained in its judgment. It first articulated
why each of the parties receiving allocations had established their priority basis for
obtaining some allocation of the native safe yield (as holders of federal reserved rights,
prescription rights, or overlying rights), and explained why protection of the long-term
health of the basin required allocation of the native safe yield. The court then found the
overliers who received allocations had historically used water for reasonable and
beneficial uses in a collective amount exceeding the total native safe yield. It also found:
“[T]he amounts allocated to each of these parties under the Judgment and
Physical Solution are reasonable and do not exceed the native safe yield.
[¶] The Court finds that the Landowner Parties and the Public Overliers will
be required to make severe reductions in their current and historical
reasonable and beneficial water use under the physical solution. The
evidence further shows that the Basin’s native safe yield alone is
insufficient to meet the reasonable and beneficial uses of all users, so the
Court must allocate quantities for each party’s present use. The Court
therefore finds that there is substantial evidence that all allocations of
groundwater in the Physical Solution … will effectively protect the Basin
for existing and future users [and] [¶] … make maximum reasonable and
beneficial uses of the native safe yield … as required by the California
Constitution.”
The court further articulated why it concluded the Physical Solution, while
acknowledging Willis’s overlying rights, fairly and justly apportioned the available
native safe yield even though it contained no current or reserved allocation for the
dormant rights held by Willis:
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“[T]he Court has authority to reasonably limit or burden the exercise of
[Willis’s] overlying rights. [¶] … [T]he Court finds multiple grounds to
condition the unexercised overlying rights of the Willis Class. Because the
landowners’ reasonable and beneficial use pumping alone exceeded the
native safe yield while public water supplier pumping was taking place, the
unexercised overlying rights of the Willis Class are not entitled to an
allocation in the Physical Solution. If that were not required under these
circumstances in this Basin, the Court finds that the pumping here by
Landowner Parties, Public Overliers and the Small Pumper Class would
become legally meaningless because all [of Willis’s] unexercised overlying
rights could eliminate long-established overlying production. [¶] … [¶]
[T]he Court [also] finds that the Basin requires badly needed certainty
through quantifying all pumping rights, including overlying rights. The
Court finds that the Willis Class overlying rights cannot be quantified
because they have no present reasonable beneficial use; their future
groundwater needs are speculative; substantial evidence shows that the
Basin’s groundwater supply has been insufficient for decades; and
unexercised overlying rights create an unacceptable measure of uncertainty
and risk of harm to the public including Edwards Air Force Base, existing
overlying pumpers and public water supplier appropriators. This
uncertainty and risk unreasonably inhibits critically-needed, long-range
planning and investment that is necessary to solve the overdraft conditions
in this Basin. [¶] … The Court finds that the unique aspects of this Basin
explained below and its chronic overdraft conditions prevent the Willis
Class from having unrestricted overlying rights to pump Basin
groundwater.”
The court explained why it concluded the Physical Solution, in all its component
parts (including the limits placed on Willis’s dormant rights), met the goals of and
strictures on physical solutions:
“[T]he Court must impose a physical solution that limits
groundwater pumping to the safe yield, protects the Basin long-term, and is
fair and equitable to all parties. The Court’s Physical Solution meets these
requirements. It severely reduces groundwater pumping, provides
management structure that will protect the Basin, balances the long-term
groundwater supply and demand, and limits future pumping by
management rules that are fair, equitable, necessary and equally applied to
all overlying landowners.
“The Court also notes that the Willis Class does not presently pump
any groundwater and thus, has no present reasonable and beneficial use of
water. The Court finds it would be unreasonable to require present users to
further reduce their already severely reduced water use to reserve a supply
68.
of water for non-users’ speculative future use. Here, quantification of
overlying rights is necessary because there is a present need to allocate the
native supply. Accordingly, the Landowner Parties, Public Overliers and
Small Pumper Class are entitled to continue their significantly reduced
production of the native or natural safe yield as set forth in the Physical
Solution. [Citation.]
“The Court finds that without reasonable conditions upon the
exercise of overlying right in this overdrafted Basin, the Willis Class
members’ unrestricted right to exercise of the overlying right during
shortage conditions would make it impossible to manage and resolve the
overdraft conditions under the unique facts of this Basin and ‘[t]he law
never requires impossibilities.’ (Civ. Code, § 3531.) The Court therefore
finds that the Willis Class members have an overlying right that is to be
exercised in accordance with the Physical Solution herein.”
B. Analysis
Willis argues the components of the Physical Solution had numerous
“shortcomings” and appears implicitly to argue these elements, viewed either
individually or collectively, show the court abused its discretion in imposing this Physical
Solution.
Willis’s principal claim is that the absence of any present allocation of the native
safe yield to accommodate future exercise of their dormant rights was an abuse of
discretion. We have already concluded a court may employ equitable apportionment
principles when allocating available water among claimants holding correlative rights
(Barstow, supra, 23 Cal.4th at p. 1248), and that restrictions on future unexercised
correlatively held rights are within the range of options available. (Long Valley, supra,
25 Cal.3d at pp. 358–359; cf. Barstow, supra, at p. 1249, fn. 13.) The trial court
explained why resort to that option was necessary here: long-range planning for and
investment in measures to protect the basin would be harmed absent certainty from
quantified pumping rights, and Willis’s speculative needs would frustrate those goals.
Moreover, existing users were already subjected to severe reductions, and the economy of
the region (premised on the existing reduced uses) would be subjected to an unreasonable
measure of uncertainty if existing users’ allotments were subject to the vagaries of
69.
dormant rights claims. We cannot conclude these factors were impermissible
considerations for the trial court when it determined how to equitably apportion the
limited native safe yield. (Cf. Barstow, at p. 1246 [equitable apportionment can consider
many factors when making the “‘“delicate adjustment of interests which must be made”’”
for an overdrafted water source, including the extent to which the economy of the region
may be rooted in existing uses].) We therefore conclude Willis has not shown the
allocations here were an abuse of discretion.
Willis also criticizes other aspects of the Physical Solution to assert the trial court
abused its discretion when imposing the Physical Solution here. For example, the new
production application procedure, which applies to anyone (including Willis) seeking
permission to commence new pumping from the overdrafted basin, requires the
watermaster engineer to determine whether the applicant has “established the
reasonableness [of its proposed extraction and use of the groundwater] in the context of
all other uses of Groundwater in the Basin, at the time of the application, including
whether all of the Native Safe Yield is then currently being used reasonably and
beneficially.” The application procedure includes (1) paying a fee for application review,
investigation, reporting and hearing, and any costs incurred by the engineer; (2) providing
written summaries describing quantity, source, and manner and place of use; (3)
providing maps depicting the location of the new production; (4) providing a copy of well
permits, well log reports, testing results, pump and meter specifications; (5) providing
written confirmation of land use entitlements; (6) providing written confirmation of
California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)
requirements; (7) providing an approved water conservation plan; (8) providing an
economic impact report, a physical impact report, and a “no material injury” statement;
(9) providing an agreement to pay the applicable replacement water assessment; and, (10)
any other information the watermaster engineer may require.
70.
Willis argues that, while they are allowed to apply for permission to pump from
the basin, the new water production application procedure is so costly, onerous, and
uncertain that it could remove any realistic economic possibility for developing their
property. However, we cannot conclude the trial court abused its discretion by requiring
an applicant to provide basic information necessary to promote effective management of
the basin and to guard against future overdraft. (Cf. Tulare, supra, 3 Cal.2d at p. 525
[holding “trial court might well, by appropriate provisions in its judgment, retain
jurisdiction over the cause, so that when a riparian [or overlier] claims the need for water,
… the trial court may determine whether the proposed new use, under all the
circumstances, is a reasonable beneficial use and, if so, the quantity required for such
use”].)
The required information allows the watermaster engineer to determine whether
new production is reasonable “in the context of all other uses of Groundwater in the
Basin at the time of the application, … [c]onsidering common law water rights and
priorities, the mandate of certainty in Article X, section 2, and all other relevant factors.”
The information also allows the watermaster engineer to meet its responsibility to “rely
on and use the best available science, records and data to support the implementation of
this Judgment.” We cannot conclude that imposing requirements on new production
applicants to provide the information needed by the watermaster engineer to effectively
manage the basin’s scarce water, and to enable the watermaster to evaluate proposed new
pumping in order to make informed decisions on all proposed new demands placed on the
basin’s overtaxed groundwater, was an abuse of discretion.
Willis also asserts the watermaster board as constituted creates a board that is
inherently biased against Willis because no class member serves on that board. This
claim is speculative. (See, e.g., Independent Roofing Contractors v. California
Apprenticeship Council (2003) 114 Cal.App.4th 1330, 1340 [“[B]ias in an administrative
adjudicator must be established with concrete facts rather than inferred from mere
71.
appearances”].) Moreover, there are numerous safeguards protecting against the risk of
biased decisionmaking by the watermaster board, including the court’s continuing
jurisdiction and oversight.
Most watermaster board decisions must be unanimous, thus preventing any one
group from dominating its decisionmaking process. Their meetings are also subject to
the transparency protections provided under the Ralph M. Brown Act (Gov. Code,
§ 54950 et seq.) open meeting provisions. The watermaster is also enjoined to “carry out
its duties, powers and responsibilities in an impartial manner without favor or prejudice
to any Subarea, Producer, Party, or Purpose of Use,” and the court’s continuing
jurisdiction includes the “authority to remove any Watermaster … upon a showing that
the Watermaster has … performed its powers in a biased manner.”
Willis also appears to complain that conferring discretionary authority on the
watermaster to approve or deny applications, even after considering the watermaster
engineer’s recommendation, was an abuse of discretion. However, there would be little
point in having the watermaster engineer’s recommendations be subject to review by the
watermaster if the watermaster lacked discretionary authority to act on such applications
notwithstanding the watermaster engineer’s recommendations. Moreover, because all
watermaster decisions are reviewable by the court under its continuing jurisdiction and
oversight, new production applicants are protected from arbitrary decisionmaking.24
Willis asserts the replacement water fee is “unfair” because the amount of the fee
is not ascertainable from the four corners of the Physical Solution. However, the
Physical Solution defines the replacement water assessment as the “amount charged by
24Willis also argues, for the first time in their reply brief, that the new production
procedures were an abuse of discretion because they transgress Water Code sections 106 and
106.3, which declare that domestic uses have priority and that everyone has the “right to safe,
clean, affordable, and accessible water adequate for [domestic household uses].” (Wat. Code,
§ 106.3.) According to Willis, the costs for and uncertainty of the new production application
procedures frustrate this policy. Even assuming this argument was interposed below, we decline
to consider this claim. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277–278
[court of appeal ordinarily will not consider arguments raised for first time in reply brief].)
72.
the Watermaster to pay for all costs incurred by the Watermaster related to Replacement
Water.” While the “costs incurred by the Watermaster” will undeniably vary over time
(because the charges the watermaster will incur to acquire imported or other replacement
water presumably will not be fixed), Willis cites no basis for concluding that a provision
allowing the watermaster to pass those costs through to the ultimate user was an abuse of
discretion.
Willis also argues, for the first time in its reply brief, that the Physical Solution’s
effort to protect their ability to develop their lands via the new pumping application
procedure is “illusory” because it depends on the availability of imported water from an
“infamously unreliable source,” rendering the “likelihood of available imported water …
very low” and therefore Willis’s members “will not be able to develop their land.” Even
assuming we were to consider this argument (but see fn. 24, ante), Willis’s citations to
the record for the evidence supporting the factual predicates—that imported water is from
an “infamously unreliable source” and the “likelihood of available imported water is very
low”—does not support their argument. Instead, they cite only to a proffered opinion
(from their proposed appraiser) that “there is no guarantee that any imported replacement
water would be available in any given year,” which (in addition to being an “opinion”
well outside the expertise of this proffered expert) does not support the argument that the
likelihood of any available imported water is so low as to render the new production
application procedure “illusory.”
Willis next argues it was an abuse of discretion to allocate to certain PWS’s any
unused amounts that were allocated to the United States for its “federal reserved rights”
but that had not been consumed by the United States during the previous year. However,
the predicate for this contention appears to be that permitting unused federal allotments to
flow to the PWS improperly directs available water away from higher priority overliers to
lower priority appropriators. As previously discussed, there was substantial evidence
supporting the conclusion the PWS had acquired interests in the available native safe
73.
yield of equivalent priority to overliers, and therefore the predicate upon which this claim
by Willis rests is without merit.
Finally, Willis argues the so-called “drought provisions” were an abuse of
discretion.25 Willis claims these provisions improperly elevated the PWS’s rights above
overlying landowners’ rights to available groundwater supplies and further argues this
provision required special scrutiny by the trial court because it was an improperly
collusive agreement representing a quid pro quo for the PWS’s agreement to pay Wood’s
attorney fees. Our examination of the drought provisions convinces us this provision was
within the trial court’s discretion in fashioning the overall Physical Solution.26
Under the Physical Solution, all users (including the PWS) must drastically reduce
groundwater production, even during periods of severe drought. As additional assurance
the PWS could continue to provide a reliable water supply to hundreds of thousands of
urban customers during the rampdown period, the Physical Solution included a drought
program. The drought program, which was in effect only during the seven-year
rampdown period, appears designed to incentivize the funding for purchasing all
available imported water supplies while concomitantly minimizing the incentive for
25Willis also argues on appeal it was an abuse of discretion to treat Willis’s members
disparately from Wood’s members. Willis has not demonstrated this claim was preserved below,
and we therefore deem it waived. (See fn. 16, ante.) Even assuming this claim was preserved,
there was substantial evidence upon which a court could conclude Willis’s members were not
similarly situated with Wood’s members: the latter had commenced pumping and hence were
extant users. Moreover, Wood’s members received an allotment from the native safe yield that
was, on average, only 1.2 afy. To the extent such a de minimus allotment was sufficient only to
support domestic household needs, Willis’s members have not facially received disparate
treatment from Wood’s members because the watermaster can waive replacement assessments
for similar pumping from the native safe yield for similar purposes.
26Willis also appears to assert that granting the PWS up to 40,000 acre-feet over a seven-
year period, as partial consideration for the PWS agreement to pay Wood’s attorney fees and
costs, was “clearly excessive” under class action settlement principles. (Cellphone Termination
Fee Cases (2009) 180 Cal.App.4th 1110, 1117–1118 [court must carefully examine settlement of
class action to ensure it is fair, reasonable and adequate].) However, Willis does not demonstrate
that the drought program/fee award was so disproportionate as to be “clearly excessive,” and we
do not further address this aspect of Willis’s claim.
74.
excess groundwater production. Before the participants can claim the program benefits
(i.e., excess groundwater production without replacement assessments), the program
imposed requirements: first, in each year of the seven-year rampdown, District 40 must
purchase 70 percent of District 40’s total annual demand (up to 50,000 afy) or as much as
is available up to that amount; second, all program participants must first exhaust all
other available water supplies (including all water made available by Antelope Valley–
East Kern Water Agency, plus all their respective production rights in the native safe
yield, their return flow rights, any unused production allocation of the federal reserved
water rights, and production rights previously transferred from another party). Only if
and after these conditions are satisfied and there were still insufficient surface water
supplies available to meet the needs of the public users may the participants pump
additional water (to a maximum total of 40,000 acre-feet over the seven-year period)
without paying the replacement assessment.
Willis’s claim that this program was an abuse of discretion focuses solely on the
potential availability of 40,000 acre-feet of additional production, while ignoring the
significant limitations and offsetting costs and responsibilities.27 Because the court could
conclude the drought program was a creative component of the overall solution to the
problems of groundwater management—by incentivizing and maximizing the
importation and use of surface water when available while limiting additional
groundwater production unless absolutely vital to meet public water demands—the court
acted within its sound discretion in providing a temporary program that allows some
production free of replacement water in dry years and purchase of additional imported
water to supplement the basin’s native supply in other years.
27Willis also asserts this program was an abuse of discretion because it gave 40,000 acre-
feet to lower priority rights holders and thus necessarily deprived overliers of their right to those
40,000 acre-feet. However, the judgment recognized the PWS had water rights of equal priority
with overliers, and hence did not circumvent water rights priorities. Moreover, even to the
extent the PWS did pump under the drought program, nothing in the Physical Solution offsets
such pumping by diminishing the production rights of any other overlier.
75.
We conclude the terms and provisions of the Physical Solution were well within
the equitable discretion accorded to trial courts when fashioning a physical solution, and
therefore reject Willis’s claims it represented an abuse of that discretion.
IX
WILLIS WAS ACCORDED DUE PROCESS
Willis finally asserts the trial court violated their due process rights by entering
any judgment adversely affecting their correlative rights, and by the limits it placed on
their participation in the post-Settlement proceedings. We will address Willis’s claims
seriatim.
A. Willis Received Adequate Notice and Opportunity to Appear and
Defend Their Interests
Willis first asserts they were deprived of property without due process.
Specifically, they argue that because no party filed an adversarial pleading against them
giving them notice that their correlative overlying rights in the native safe yield would be
litigated and resolved as part of this proceeding, any judgment apportioning pumping
rights in the native safe yield among correlative overliers denied due process to Willis.
Certainly, due process requires that a party be given notice and an opportunity to defend
his interests (Britz, Inc. v. Dow Chemical Co. (1999) 73 Cal.App.4th 177, 181), but the
“primary purpose of procedural due process is to provide affected parties with the right to
be heard at a meaningful time and in a meaningful manner. Consequently, due process is
a flexible concept, as the characteristic of elasticity is required in order to tailor the
process to the particular need. [Citations.] … ‘What due process does require is notice
reasonably calculated to apprise interested parties of the pendency of the action affecting
their property interest and an opportunity to present their objections.’” (Ryan v.
California Interscholastic Federation–San Diego Section (2001) 94 Cal.App.4th 1048,
1072, quoting Bergeron v. Department of Health Services (1999) 71 Cal.App.4th 17, 24.)
Willis’s argument on appeal also mistakenly suggests no action was ever filed
against its members, and that the only pleading involving its members was filed by Willis
76.
and against the PWS. While no separate complaint was filed against the class after its
certification, the Settlement acknowledged District 40 had brought an action “against
Overlying Owners (more specifically defined in III.M) in the Basin … seeking, inter alia,
an adjudication of their respective rights to produce groundwater from the Basin.”
Because section III.M of the Settlement defined “Overlying Owners” to mean “owners of
land overlying the Basin who hold an Overlying right” that (presumably) included all
members of the Willis class, there was an adversarial action against class members
seeking an adjudication of their respective rights to produce groundwater.
Indeed, the lack of a pleading by every party against every other party in a
groundwater adjudication is not unique. Thus, in Pasadena, supra, 33 Cal.2d 908, the
court rejected an appellate claim analogous to the one Willis now raises: that the trial
court improperly enlarged the scope of the proceedings beyond the strict boundaries of
the appellant’s pleading to encompass not merely the appellant’s pleaded rights as against
the named defendants but to also include “‘an adjudication of rights of the defendants
inter se and the rights of each and every party as against each and every other party.’”
(Id. at p. 919.)
“Although the answers of the respective defendants did not present claims
against the other defendants and were not served on them, the action was
tried on the theory that these matters were at issue, and the ensuing
judgment limiting the amount of water that each could pump was also
based on this theory. … It was within the discretion of the trial court to
determine whether it was necessary to adjudicate inter se the amount of
water to which each party was entitled, and the record indicates that it
would have been impracticable to decide the matter solely between plaintiff
and each defendant. Moreover, appellant had ample time to prepare its case
after notice of the scope of the proceedings, and there is no basis for any
claim that it was misled to its prejudice or that it was denied due process of
law.” (Ibid.)
We are convinced Willis was not deprived of procedural due process. The
consolidated actions included District 40’s action which sought, among other relief, a
physical solution and “a judicial determination as to the Basin’s safe yield, the quantity of
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surplus water available, if any, the correlative overlying rights of each cross-defendant to
the safe yield and an inter se determination of the rights of persons an[d]/or entities with
overlying, appropriative and prescriptive rights to pump water from the Basin.”
Moreover, the parties specifically contemplated their Settlement would become
part of the Physical Solution entered by the court to manage the basin, and Willis agreed
to be part of that Physical Solution “to the extent it is consistent with [the Settlement],”
including that a settling party’s production rights would be subject to the Physical
Solution. The parties also acknowledged the court might subsequently determine Willis
did not have overlying rights, or that other overlying users may have the right to pump
correlatively with Willis, and that the Settlement provided for the court to retain
jurisdiction over Willis’s members for further proceedings, “including the entry of a
Physical Solution if appropriate.”
Finally, the court’s consolidation order specified (1) it would not “preclude any
parties from settling any or all claims between or among them, as long as any such
settlement expressly provides for the Court to retain jurisdiction over the settling parties
for purposes of entering a judgment resolving all claims to the rights to withdraw
groundwater from the Antelope Valley Groundwater Basin as well as the creation of a
physical solution if such is required upon a proper finding by the Court,” and (2) an
approved settlement would be “incorporat[ed] and merg[ed] … into a comprehensive
single judgment containing such a declaration of water rights and a physical solution.”
(Italics added.) Under these circumstances, we conclude Willis’s claim that the absence
of a formal pleading against them deprived the court of jurisdiction to adjudicate their
correlative rights as against other overliers is meritless.
When the court issued its consolidation order in 2010, it gave notice to all parties
(including Willis) that “the only cause of action that would affect all parties to the
consolidation are the declaratory relief causes of action which seek a declaration of water
rights (by definition, correlative rights). If the basin is in overdraft (a fact still to be
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established), the Court in each declaratory relief proceeding would of necessity have to
look at the totality of pumping by all parties, evaluate the rights of all parties who are
producing water from the aquifer, determine whether injunctive relief was required, and
determine what solution equity and statutory law required (including a potential physical
solution).” Here, as in other cases (see Pasadena, supra, 33 Cal.2d 908), the court had
the discretion to consolidate all actions and conduct a comprehensive adjudication, it
gave notice to Willis that later proceedings could encompass an adjudication of the inter
se amounts of water to which each party was entitled, and the Settlement was entered into
cognizant of the inter se nature of the judgment into which the Settlement would
ultimately be merged.
Willis correctly notes that in rem or inter se adjudications are still subject to due
process protections. (See generally Mullane v. Central Hanover Tr. Co. (1950) 339 U.S.
306, 312–313; Robinson v. Hanrahan (1972) 409 U.S. 38, 39–40 [in rem nature of
proceeding does not obviate due process requirements that party be given notice
“‘reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections’”].)
However, none of the cases cited by Willis involved actions in which the aggrieved party
had actually appeared or had settled the claims against him by consenting to entry of a
subsequent judgment consistent with his settlement, and hence provide no assistance to
Willis’s procedural due process attack on the present judgment. For example, Willis
relies on Griffin v. Griffin (1946) 327 U.S. 220, where the state court had entered an
interlocutory judgment requiring alimony to be paid (id. at p. 223), and the wife later
sought and received a monetary judgment for unpaid alimony without actual notice to (or
appearance by) the husband in the later proceedings at which he was entitled to present
any defense he might have had to the later judgment. (Id. at p. 228.) The Supreme Court
held that due process required notice of the proceeding even though the decree indicated
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that “further proceedings might be taken to docket in judgment form the obligation to pay
installments accruing under the decree.” (Id. at p. 229.)
Here, Willis was given notice and the opportunity to appear and raise their
defenses to the final judgment, and in fact did so: Willis deposed expert witnesses, filed
pretrial motions and oppositions, offered witness testimony and cross-examined
witnesses at the Phase 6 trial, and interposed numerous objections to the statement of
decision and to the Physical Solution. Accordingly, Griffin has no application, and the
court did not violate Willis’s procedural due process rights.
B The Evidentiary Rulings Did Not Deprive Willis of Due Process
Willis argues they were denied due process because the court’s evidentiary rulings
denied them any meaningful opportunity to participate in the Phase 6 proceedings. Willis
correctly notes that, under certain circumstances, a lower court’s erroneous rulings
excluding evidence can deny a party a fair trial and require per se reversal. (See, e.g.,
Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677.) However, the Kelly
court reached that conclusion because it held the evidentiary rulings (1) were erroneous
and (2) completely foreclosed the plaintiffs from pursuing the only factual theory of
liability supported by the evidence. (Id. at pp. 677–678.) Willis has not shown that either
prong of Kelly is satisfied here.
First, although Willis lists the trial court’s evidentiary rulings with which they
disagree, they make no effort on appeal to demonstrate those rulings were an abuse of
discretion. (See Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446–447 [trial court’s
exercise of discretion in admitting or excluding evidence is reviewable for abuse of
discretion]; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928 [appellate court may
not disturb trial court’s ruling on admissibility of opinion evidence absent an abuse of
discretion].) For example, Willis complains the trial court excluded the testimony of
Dr. Smith on grounds that it was irrelevant. Willis’s proffer was that Dr. Smith would
provide expert testimony on, among other things, three alternative models for physical
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solutions that would include allocations for Willis, and on alleged inconsistencies
between the Settlement and the Physical Solution from an economic perspective. The
parties objected that his testimony sought to improperly opine on legal questions, and on
relevancy and Evidence Code section 352 grounds. The court sustained the objections to
Dr. Smith’s testimony and precluded him from testifying.
To the extent Willis asserts on appeal that excluding Smith from discussing
alternative models for physical solutions was error, we have already rejected the premise
that a trial court is obligated to consider alternative physical solutions and therefore we
necessarily reject Willis’s claim that excluding the expert from discussing those
alternatives was an abuse of discretion. To the extent Willis asserts on appeal that
excluding Smith from discussing “inconsistencies” between the Settlement and the
Physical Solution was error, Willis makes no appellate argument that such testimony was
exempted from the ordinary rule that experts may not opine on the legal impact of
agreements. (See generally Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155,
1179–1185.) We conclude Willis has not shown the ruling as to Dr. Smith was error.
Willis also argues they were prejudiced because the court erroneously limited the
testimony from a witness (Stephen Roach) proffered by Willis as an expert appraiser.
Prior to his testimony, several parties objected to the testimony based on relevance and
undue prejudice pursuant to Evidence Code section 352. In response to the court’s
request for an offer of proof, Willis stated Roach would opine on “what happens to the
value of property if this proposed physical solution is entered and why.” (Capitalization
omitted.) The court, after noting that “everybody acknowledges” that imposing
conditions and restrictions has a “negative impact on the property,” struggled “to
understand why it’s necessary for us to go into detail as to what those economic impacts
might be since it cannot impact the court’s decision.” (Capitalization omitted.) The court
nevertheless allowed limited testimony from Roach, who opined the Physical Solution
would negatively impact property values and expressed his reasons for that opinion.
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Willis does not identify what relevant evidence was erroneously excluded by the time
limits placed on Roach’s testimony, much less that it is reasonably probable a more
favorable result would have occurred had this missing evidence been admitted. (Cassim
v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) Because the court already expressed its
awareness that physical solutions have economic impacts, we cannot conclude Willis has
carried its appellate burden to show either error or prejudice.
Willis also asserts they were improperly constrained in cross-examining witnesses.
Certainly, “‘[a]ll parties must be … given [an] opportunity to cross-examine witnesses …
and to offer evidence in explanation or rebuttal’” (Massachusetts etc. Ins. Co. v. Ind. Acc.
Com. (1946) 74 Cal.App.2d 911, 914), and where “a party is completely denied the
fundamental right to cross-examine the adverse party, there has not been a fair hearing.”
(Ogden Entertainment Services v. Workers’ Comp. Appeals Bd. (2014) 233 Cal.App.4th
970, 984.) However, Willis was not completely denied the opportunity to cross-examine
witnesses. Although Willis complains it was not permitted to cross-examine an expert
witness (Charles Binder), the record shows they did extensively cross-examine him.
Willis, apparently conceding they were not “completely denied the fundamental right to
cross-examine [Binder]” (ibid.), contends instead that the trial court erred in sustaining
objections to many of the questions Willis put to Binder. However, Willis does not
mention either the questions or the objections, much less carry its appellate burden of
showing the rulings on the objections were an abuse of discretion. Because we must
presume the objections were properly sustained (see generally In re Marriage of
Davenport (2011) 194 Cal.App.4th 1507, 1526), we presume the court correctly ruled on
the objections made during Willis’s cross-examination of Binder.
Willis also complains of the inability to cross-examine the basis upon which two
experts opined that the present uses of water by those receiving allocations were
reasonable and beneficial uses of the available water. Willis argues that “[b]y precluding
[Willis] from cross-examining information presented during Phase [4] of trial, … the
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court denied [Willis] a fair trial.” We reject this argument because it conflates what was
and was not determined in the Phase 4 and 6 trials. During the Phase 4 trial, parties
presented evidence of their current groundwater pumping (for the years 2011 and 2012),
and the court made findings of facts of the amounts of groundwater pumped by each
party who participated in that phase of the trial. The court made clear its findings were
limited to the amount of groundwater production and did not determine water rights or
the reasonableness of any party’s water use. In Phase 6, two experts then testified (based
on those established pumping numbers) that the amounts pumped and the ostensible
purposes for which those amounts were used were reasonable and beneficial.
Willis, apparently objecting to the experts’ reliance on the declarations and Phase
4 findings to reach their opinion on whether the pumping parties were reasonably and
beneficially using the pumped amounts, argued they needed to review over a hundred
declarations in order to challenge the underlying evidence, “includ[ing] not only [the
amount of ] pumping but the use by the parties.” (Capitalization omitted.) The court
stated it would not require every party who submitted declarations to come in and
undergo cross-examination “unless you’ve reviewed the declarations and determined that
there’s a basis for challenging the use of their water on the land that they’re using.”
(Capitalization omitted.) While it made no determination in Phase 4 beyond the amounts
historically pumped, the court noted it had reviewed all of the declarations as part of
making that determination and there are “very few that indicate any usage of water other
than for crops, household use, the type of water usage that is on the land and is
reasonable and beneficial to the land” and therefore “the court has a sense that you’re not
talking about hundreds, you’re talking about very few that you’re probably going to have
to cross-examine.” (Capitalization omitted.)
Willis cites nothing in the record suggesting that, after the court invited them to
examine and determine whether there were any declarations warranting cross-
examination as to the stated uses for the water pumped by the various parties, Willis
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found (but was subsequently denied the opportunity to present) relevant cross-
examination that would undermine the information ultimately relied on by the experts.
Indeed, Willis did cross-examine one party who was involved in the Phase 4
determinations and declined the opportunity to cross-examine testimony on pumping
amounts and uses that had not been previously presented and admitted in prior trial
phases.
Beeby and Wagner ultimately opined most parties who proved their historical
pumping from the basin (1) had identified uses served by that pumping which were
recognized beneficial uses and (2) employed amounts of water for such uses that were
within reasonable parameters. The court found, based on this testimony, the parties’
historical pumping (as found in Phase 4) was being applied to reasonable and beneficial
uses. Willis was not denied the opportunity to cross-examine the experts’ opinion
(expressed during the Phase 6 trial) that the parties’ stated uses were beneficial uses, nor
was Willis denied the opportunity to cross-examine the experts on whether the amounts
historically pumped for such stated uses were outside of recognized and reasonable
parameters for such uses.28 We conclude Willis was not denied a meaningful opportunity
to cross-examine the testimony critical to the court’s assessment of whether the overliers’
allotments satisfied the constitutional mandate that available water be used reasonably
and beneficially. We therefore reject Willis’s claims the court’s evidentiary rulings
denied them their due process rights.
28Willis does assert it was constricted in cross-examining Beeby because, when Willis’s
counsel asked whether Beeby did “any evaluation of one party’s use relative to another party’s
use and determine whether or not it’s reasonable to have that particular use” (capitalization
omitted), the court sustained an objection to that inquiry. However, Willis does not explain on
appeal why this question was proper or how the ruling was error, and we therefore presume the
ruling sustaining the objection was proper. (In re Marriage of Davenport, supra, 194
Cal.App.4th at p. 1526.) Willis also complains the court sustained an objection to a question,
posed to Binder, whether it was “important to [his] expert opinion whether a groundwater right is
given on a permanent or a non-permanent basis in the given physical solution.” (Capitalization
omitted.) Again, Willis does not explain on appeal why this question was proper or why the
court’s ruling on the objection was error.
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X
CONCLUSION
The trial court was required to find a Physical Solution that balanced the needs of
thousands of existing users, all of whom competed for the scarce water that replenished
the aquifer underlying the AVAA, and to craft its provisions to protect the long-term
health of the aquifer and the region’s residents. The court determined that severely
reduced water usage was required of existing users, and that severely curtailed access was
required for future users. We conclude the measures selected in the final Physical
Solution did not violate California’s water law principles, were consistent with the
Settlement, were not an abuse of the trial court’s discretion to construct a fair and just
allocation of the available water, and Willis was afforded an adequate notice and
opportunity to present its contentions as part of the lengthy process of crafting the final
Physical Solution. Accordingly, we affirm the judgment as to Willis.
All parties are to bear their own costs on appeal.
PEÑA, Acting P.J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
85.
Filed 4/6/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
F082469
ANTELOPE VALLEY GROUNDWATER CASES*
REBECCA LEE WILLIS et al.,
(JCCP No. 4408)
Plaintiffs and Appellants,
v.
LOS ANGELES COUNTY WATERWORKS
DISTRICT NO. 40 et al.,
Defendants, Cross-complainants and
Respondents;
CITY OF LOS ANGELES et al.,
Defendants, Cross-defendants and
Respondents;
ANTELOPE VALLEY–EAST KERN WATER
AGENCY,
Cross-defendant, Cross-complainant and
Respondent;
*Los Angeles County Waterworks District No. 40 v. Diamond Farming Co. (Super. Ct.
Los Angeles County, No. BC325201); Los Angeles County Waterworks District No. 40 v.
Diamond Farming Co. (Super. Ct. Kern County, No. S-1500-CV254348); Wm. Bolthouse
Farms, Inc. v. City of Lancaster (Super. Ct. Riverside County, No. RIC353840); Diamond
Farming Co. v. City of Lancaster (Super. Ct. Riverside County, No. RIC344436); Diamond
Farming Co. v. Palmdale Water Dist. (Super. Ct. Riverside County, No. RIC344668); Willis v.
Los Angeles County Waterworks District No. 40 (Super. Ct. Los Angeles County,
No. BC364553); Wood v. Los Angeles County Waterworks District No. 40 (Super. Ct. Los
Angeles County, No. BC391869).
U. S. BORAX INC. et al.,
Cross-defendants and Respondents.
Appellants’ petition for rehearing filed in the above-entitled case on April 2, 2021,
is hereby denied.
As the nonpublished opinion filed on March 16, 2021, in the above matter meets
the standards for publication specified in the California Rules of Court, rule 8.1105(c), it
is ordered that the opinion be certified for publication in the Official Reports.
PEÑA, Acting P.J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
2.