Antelope Valley Groundwater Cases ( 2021 )

Filed 3/16/21; Certified for Publication 4/14/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ANTELOPE VALLEY GROUNDWATER CASES*
F082492
LOS ANGELES COUNTY WATERWORKS
DISTRICT NO. 40 et al., (JCCP No. 4408)
Cross-complainants and Respondents,
v. OPINION
CHARLES TAPIA, Individually and as Trustee,
etc., et al.,
Cross-defendants and Appellants;
ANTELOPE VALLEY–EAST KERN WATER
AGENCY,
Cross-defendant, Cross-complainant and
Respondent;
U.S. BORAX INC. et al.,
Cross-defendants and Respondents.
*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).
APPEAL from a judgment of the Superior Court of Los Angeles County. Jack
Komar, Judge.†
Law Offices of Robert H. Brumfield and Robert H. Brumfield III for Cross-
defendants and Appellants.
Mary Wickham, County Counsel, Warren R. Wellen, Deputy County Counsel;
Best 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 Cross-complainants 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; Ellison, Schneider, Harris & Donlan,
Christopher M. Sanders; Kuhs & Parker, Robert G. Kuhs, Bernard C. Barmann, Jr.;
Kronick, Moskovitz, Tiedemann & Girard, Eric N. Robinson, Stanley C. Powell;
Michael N. Feuer, Los Angeles City Attorney, Joseph Brajevich, Raymond Ilgunas; Law
Office of LeBeau Thelen, Bob H. Joyce; Zimmer & Melton and Richard Zimmer for
Cross-defendants and Respondents.
-ooOoo-
In 1999, the first lawsuits were filed in what ultimately evolved into this
proceeding known as the Antelope Valley Groundwater Cases (AVGC). The AVGC
proceeding litigated whether the water supply from natural and imported sources, which
replenished an alluvial basin from which numerous parties pumped water, was inadequate
to meet the competing annual demands of those water producers, thereby creating an
†Retired Judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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“overdraft” condition.1 A number of the parties asserted that, without a comprehensive
adjudication of all competing parties’ rights to produce water from the aquifer, and a
physical solution to regulate future pumping to protect the aquifer, this continuing
overdraft would negatively impact the health of the aquifer.
One of the competing parties, appellant Charles Tapia, individually and as trustee
of a trust (jointly, Tapia), claimed he owned land overlying the aquifer. Tapia first
appeared in the late stages of the AVGC litigation to interpose a claim that he was
entitled to draw 534.5 acre-feet per year (afy) from the limited supply of water available
in the aquifer, joining the thousands of entities and people who asserted competing claims
to draw from the limited available water.
Before Tapia’s first appearance, the Judicial Council had ordered all lawsuits
consolidated into this single adjudication proceeding, and the trial court had embarked on
an 11-year process in which it, seriatim, (1) defined the geographical boundaries of the
Antelope Valley Adjudication Area (AVAA) to determine which parties would be
necessary parties to any global adjudication of water rights, (2) concluded the aquifer
encompassed within the AVAA boundaries (the AVAA basin) was functionally a single
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 (San Fernando), 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. (San Fernando, 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 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”].)
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aquifer, and (3) found the AVAA basin was in a state of chronic overdraft because
extractions exceeded the basin-wide annual safe yield by a considerable margin.
The next phase (“Phase 4”), which also occurred before Tapia’s first appearance,
quantified how much water was currently being pumped by the participating competing
water rights claimants. The court ultimately determined the annual “baseline” amounts
actually extracted by the largest of the competing parties with claims to water from the
aquifer. These annual extractions confirmed the amounts annually extracted were
substantially 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.
These discussions ultimately produced an agreement among the vast majority of parties
in which they settled their competing groundwater rights claims and agreed to support the
contours of a proposed plan (the “Physical Solution”) designed to bring the AVAA basin
into hydrological balance. The Physical Solution included limits on pumping that would
bring total annual extractions from the aquifer into balance with the available “native safe
yield” (sometimes, NSY). Accordingly, among the provisions of the proposed Physical
Solution was an agreement by most of those who had demonstrated their extant pumping
from the aquifer during the Phase 4 baseline period, as follows: (1) to substantially
reduce their water extractions to a level that would match their assigned allocation of
water from the NSY, and (2) to pay for imported water for any extractions above their
assigned allocation.
Tapia was not among the settling parties. Accordingly, before considering
whether to approve the Physical Solution (including the proposed global allocation of
water from the NSY) for the AVAA basin, the court conducted a separate trial on Tapia’s
unsettled claims and defenses, including (1) the extent to which various public water
suppliers (sometimes, PWS) had obtained prescriptive rights in the NSY as to Tapia and
others, and (2) whether Tapia had demonstrated his entitlement to an allocation from the
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NSY based on Tapia’s showing of how much he pumped for reasonable and beneficial
uses on his land. The court found the PWS had established prescriptive rights in the NSY
as to Tapia, and that Tapia had not adequately shown a basis for his requested allocation
of water under the Physical Solution.
In addition to resolving Tapia’s unsettled claims, the court held a trial on the
rationale for and efficacy of the proposed Physical Solution. The court found the
proposed Physical Solution was reasonable, fair and beneficial as to all parties, and
served the public interest, and approved the Physical Solution.
Tapia’s claims on appeal are murky, but it appears Tapia interposes three claims:
(1) the Physical Solution violates California water rights priorities because it allocates
portions of the NSY to the public water suppliers while denying Tapia his claimed
allocation of that NSY; (2) the Physical Solution is inequitable because overlying owners
with demonstrable existing pumping were allocated proportionate shares of the remaining
NSY while Tapia, despite similarly showing existing pumping, did not receive a
proportionate share; and (3) the Physical Solution violates the constitutional requirement
that available water be applied to reasonable and beneficial uses. We conclude
substantial evidence supports the judgment as to Tapia, and that the Physical Solution
comports with California law governing water priorities and the constitutional
“reasonable and beneficial use” requirement. Accordingly, we will affirm the judgment
as to Tapia.
I
FACTUAL AND PROCEDURAL HISTORY
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. The aquifer underlying the AVAA was in a state of chronic “overdraft,”
meaning that 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. 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
The PWS are a group of agencies and special districts formed to supply water to
their customers. Los Angeles County Waterworks District No. 40 (District 40), the
largest of these entities, is the largest urban water supplier for the region’s cities, and it
pumps from the aquifer to supply water to over 200,000 people within the AVAA,
primarily for residential uses. 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.
2. The Federal Government
The United States owns approximately 300,000 acres overlying the AVAA basin
and operates Edwards Air Force Base on those lands. The United States claimed federal
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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 AVAA basin’s water.
There are numerous individual persons or entities who own overlying land and
who demonstrated the extent to which they extracted water for use on that land. This
group includes corporate landowners, which extracted water to supply their farming and
mining operations on their owned land, along with numerous other individual landowners
(with varying levels of and purposes for water used on their land) who compete for the
NSY. Tapia owns overlying land (a 137-acre property) and claimed that, during the
baseline period, his well extracted an average of 534.5 afy from the aquifer to irrigate a
farm on that property.
There were also numerous “mutual water companies,” which were formed when
the owners of overlying land incorporated the mutual water company and transferred
their water rights to the company in exchange for stock and the right to receive water
deliveries from the mutual water company. Another large category of overlying
landowners currently pumping from the aquifer for use on their property were the
members of the “Small Pumper (or Wood) Class.” The class, after opt outs, ultimately
represented over 3,000 privately owned parcels that fell within the class definitions. The
class represented the interests of private landowners who had pumped less than 25 afy on
their property during any year from 1946 through 2015. Finally, the overlying
landowners currently pumping from the aquifer for use on their property included several
public entities and agencies.
4. Overlying Landowners Not Presently Using Groundwater (the
“Willis Class”)
The Willis Class was formed to represent the interests of approximately 18,000
private individuals or entities (with certain exceptions) that owned overlying land in the
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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 Litigation Commences
Between late 1999 and early 2001, the first lawsuits (which ultimately evolved
into the AVGC) were filed by Diamond Farming Company 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 actions 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 overdraft conditions in the AVAA and to protect the AVAA
basin. Among other claims, District 40 sought declaratory relief that it had 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 public water suppliers 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. The parties named as cross-
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defendants included numerous specifically named parties, and also included Roe
defendants who owned real property within the boundaries of the AVAA and extracted
water or claimed some right, title, or interest to water located within the AVAA, or who
asserted claims adverse to the PWS’s rights and claims, but whose names were then
unknown to the PWS.
Tapia was ultimately named and added as a party to the PWS cross-complaint as
Roe 568 by a July 2007 amendment to the cross-complaint. In late 2010, the PWS sought
entry of Tapia’s default, and Tapia’s default was entered in 2012.
B. Phase 1: Determining the Geographic Boundaries of 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 in order to ascertain 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. The court established the “basic” jurisdictional boundaries for the
AVAA as largely coextensive with the boundaries of the alluvial basin as defined by the
Department of Water Resources’ bulletin 118.
C. 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, and 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.
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D. The Consolidation Order
In 2009, the PWS moved to transfer and consolidate all pending actions and cross-
actions. The PWS asserted that 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 prescriptive rights, and imposition of a physical
solution required that a single judgment be entered as to all of the actions. The court
granted the motion and entered its order consolidating all but one of the pending actions
and cross-actions, noting that 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.
E. Phase 3: Determining Safe Yield and Overdraft
The Phase 3 trial litigated the safe yield for the AVAA basin and whether the area
encompassed within the AVAA was in overdraft. 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
annual 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
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runoff) provided new water to the AVAA basin ranging between 55,000 to 68,000 afy.
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 additional 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.
F. Phase 4: Determining Actual Groundwater Production by Claimants
In the next phase, the court ultimately concluded it would limit trial to
individualized determinations of how much water various claimants actually pumped
from the AVAA basin during the years 2011 and 2012. Based on the stipulations and
evidence presented by numerous parties about the amounts pumped during the relevant
time frames, the court determined how much water the various major stakeholders
actually pumped from the AVAA basin in the relevant years. The amounts actually
pumped during those sample years exceeded the previously determined safe yield. 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 the Small Pumper
Class, and apparently without consideration of the amount that would be subject to any
federal reserved right.
G. 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 proposed global
settlement included agreement on the contours of a basin-wide groundwater management
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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 competing for
that native safe yield.
The parties to the proposed settlement, recognizing that several appearing parties
and nonparticipating parties had not agreed to the settlement, proposed a case
management schedule for resolving all remaining unsettled claims and to approve the
proposed settlement. Shortly thereafter, Tapia sought and obtained an order setting aside
his default and permitting him to file an answer to the public water suppliers’ cross-
complaint.
H. The Final Phase: Trial on the Unresolved Claims and Proposed
Physical Solution
Because several parties with potential claims to groundwater (including Tapia) had
not joined in the proposed global settlement and physical solution, the court scheduled
hearings for the fall of 2015 (1) to litigate the unresolved claims by parties who did not
join in the settlement,2 and (2) to consider whether to adopt the proposed Physical
Solution. Tapia’s claim was among the remaining claims to be resolved before any final
judgment could be entered, and the claim required trial on whether the public water
suppliers had obtained prescriptive rights as against all nonsettling parties (including
2In the spring of 2015, the settling parties and a number of the nonsettling parties,
including Tapia, agreed on a process by which any nonsettling parties would “prove up” their
claims to a portion of the NSY. The parties ultimately participating in this prove-up process
submitted briefs and supporting evidence to demonstrate the basis for their claim to an allocation
of production rights from the NSY. For example, a mobilehome park submitted evidence (based
on well logs, meter readings and annual reports to the State Water Resources Board) that their
average annual production for the sample period was approximately 148 afy. Based on that
evidence, the court ultimately found the mobilehome park had demonstrated the extent to which
it reasonably and beneficially used water and granted the mobilehome park a production right of
64 afy. The court similarly found other of these claimants had shown through this prove-up
process that they (1) owned overlying land, (2) had demonstrated the amounts of water they
pumped for reasonable and beneficial uses on their land, and (3) were entitled to certain
“production rights” under the Physical Solution.
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Tapia), and whether Tapia and any other nonsettling party had established the amounts of
water they pumped for reasonable and beneficial uses for their overlying property.
1. Evidence on Tapia’s Water Usage
Tapia asserted during the prove-up proceedings he was entitled to production
rights from the native safe yield of 534.5 afy because that was the amount he averaged
during the 2011 and 2012 “baseline” years for use on his overlying property. At trial,
Tapia testified he grew corn and pumpkins on roughly 100 acres of his Rosamond farm
during 2011 and 2012, which he irrigated with pumped water using a sprinkler system.
He had used imported water (purchased from the Antelope Valley—East Kern Water
Agency) prior to 2009, but thereafter installed a pump that began operating in 2009.
Tapia estimated his water usage for 2011 and 2012 by extrapolation from his electrical
bills from 2011 and 2012. Tapia cited to a “well test,” which showed it required 581
kilowatt hours to produce one acre-foot of water from his well. He also submitted his
electrical bills from Southern California Edison for the years 2011 and 2012 showing
total electrical consumption for those years, from which he extrapolated he had used
517.4 acre-feet in 2011 and 551.6 acre-feet in 2012.
However, at trial, Tapia did not testify as to what portion of the water he pumped
during the baseline years was used to irrigate his owned lands, and admitted that some of
the water he pumped was used to irrigate adjoining land. He also admitted he did not
submit records from the water meter on his well to support his claimed amounts. Instead,
he relied solely on electricity billings to estimate how much water he pumped for those
years, but the evidence showed the electrical meter was not a dedicated meter solely for
the well, but instead was also measuring electricity he consumed for uses on his farm
other than for operating the well.
The court also heard expert testimony from Robert Beeby, an agricultural engineer
with expertise in “crop duties.” A “crop duty” is the amount of water required to produce
a particular crop under prevailing climate and other conditions (wind, temperature, soil
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conditions, etc.) and the requisite growing season. Beeby explained 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 analyzed Tapia’s claimed water use and opined it was “overstated” and “far
in excess of what they can use based on the crops they reportedly grew.” Beeby’s
opinions were based on (1) his knowledge of crop duties for the sweet corn and pumpkins
that Tapia said he grew on the farmed acres, (2) his review of satellite imaging showing
what portions of Tapia’s farm were actually being irrigated during certain years, and (3)
his review of Tapia’s pesticide permit applications showing substantially less acreage
was being farmed by Tapia.
2. Evidence on the PWS Prescriptive Rights
The PWS introduced extensive evidence supporting their claim to prescriptively
acquired water rights. The PWS submitted records showing historical pumping and
water use during the time the aquifer was in a state of chronic overdraft, along with
extensive testimony on the decades-long public notoriety of the overdraft conditions and
their negative 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.
3. Evidence on the Physical Solution
The court also heard evidence from numerous experts concerning the efficacy of
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
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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 NSY under the proposed Physical Solution, were reasonably
using the water they extracted and devoting it to beneficial purposes. 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. He opined the historical amounts pumped by most
overlying landowners did not appear to exceed 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.
A second expert also reviewed the materials documenting the amounts of water
historically used by the various parties and types of uses to which they devoted that
water, and compared their historical use to the post-rampdown production rights under
the proposed Physical Solution. He also 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, the expert opined
the historical uses by the parties to the Physical Solution were recognized beneficial uses
under applicable California law, and that the amount of water used for those beneficial
purposes fell within the appropriate parameters.
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I. 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 were
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 prescriptive right to pump approximately 32,000 afy as against those parties
who had not joined in the stipulated judgment, including Tapia.
The court further found the Physical Solution properly allocated production rights
from the NSY to various overlying landowners and public overliers because those
receiving production rights had established (1) they possessed overlying rights to the
basin’s NSY by producing evidence of their ownership of overlying lands and the
amounts of the basin groundwater they actually used, (2) the water they had used were
reasonable and beneficial uses of such water, (3) the total amounts they had historically
used exceeded the total NSY, and (4) the amounts they were allocated under the Physical
Solution represented a severe reduction of their historical reasonable and beneficial uses
and would be applied reasonably and beneficially.
However, the court found Tapia had not proved his groundwater use because the
evidence and testimony presented by Tapia was not credible, and accordingly, “the Court
cannot make a finding as to what amount of water was used on the Tapia Parties’ land for
reasonable and beneficial use. Therefore, the Tapia parties failed to establish rights to
groundwater pumping based on the evidence and there is no statutory or equitable basis
to give them an allocation of water under the physical solution. The Tapia Parties will be
subject to the provisions of the Physical Solution.”
The court found that, because the NSY was well below the amounts used for
reasonable and beneficial purposes by those with overlying, prescriptive or reserved
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rights, it was necessary to allocate and limit production in the NSY 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 use of the
NSY in a manner that would protect the AVAA basin for existing and future users while
preserving the ability of existing rights holders to continue using the available NSY.
The Physical Solution allocated annual overlying production rights in the NSY
among the United States, the competing overlying landholders currently extracting water,
and the PWS.3 The Physical Solution did not allocate any specific amount of the NSY to
Tapia. Instead, it specified any future pumping by Tapia would be governed by the terms
of the Physical Solution.
The court issued its judgment and adopted the Physical Solution, and issued a
statement of decision explaining the basis for its judgment and Physical Solution. Tapia
timely appealed.
III
SUMMARY OF CONTENTIONS ON APPEAL
Tapia appears to raise three claims of error. First, Tapia contends the Physical
Solution violates California water law principles because it (1) transgressed California’s
established water rights priorities by assigning production rights to lower priority
3For 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 afy and as a percentage of the production from the adjusted native safe yield). 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.
17.
claimants (the PWS) while denying production rights to Tapia as a higher priority
claimant, and (2) it permanently eliminated Tapia’s vested rights to future uses of the
NSY. Second, Tapia argues the Physical Solution violates a cardinal constitutional
requirement—that water be put to reasonable and beneficial uses to the fullest extent
possible—because various elements of the Physical Solution or judgment are
incompatible with that requirement. Finally, Tapia asserts it was error to deny him the
right to produce 534.5 afy of water because the court erroneously deemed his evidence
insufficient to show the extent and reasonableness of his water use.
IV
OVERVIEW OF APPLICABLE CALIFORNIA LAW
A. Sources of Water Rights
California has been described as having a “dual system of water rights” 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
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.[4] Under certain circumstances,
an appropriator may gain ‘prescriptive rights’ by using groundwater to
4While water rights in an underground basin are typically categorized as overlying,
appropriative or prescriptive, an additional priority claim to such water, known as “federally
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.)
18.
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.)
The priority rights held by 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
cabined by the interests of all other correlative right holders: “‘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 water is insufficient
to meet the needs of all.’” (Central & West Basin 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 (1903) 141 Cal. 116, 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.)
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
19.
shortage, unless the appropriator has gained prescriptive rights through the [adverse,
open and hostile] taking of nonsurplus waters.’” (Barstow, at p. 1241, 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 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.’” (Santa Maria,
supra, at p. 279, quoting California Water Service Co. v. Edward
Sidebotham & Son (1964) 224 Cal.App.2d 715, 726.)
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
of an appropriator to a right equivalent in priority to that of a landowner.” (Santa Maria,
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
20.
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:
“[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. [Citations.] 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.”
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
21.
resources in a particular area” (California American Water v. City of Seaside (2010) 183
Cal.App.4th 471, 480) and requires 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 be put to beneficial use to the fullest extent possible” (id. at p. 250).
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, all
intendments and presumptions are indulged in its favor, and ambiguities are resolved in
22.
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] its equitable powers
in approving the proposed physical solution …, [court] properly review[s] the judgment
under the abuse of discretion standard of review”].)
The familiar 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.)
“‘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.)
Tapia appears to argue we should accord no deference to our review of the court’s
adopted Physical Solution and judgment because it was premised on stipulations among
various parties, and stipulated judgments present questions of law subject to de novo
review. (Crosby v. HLC Properties, Ltd. (2014) 223 Cal.App.4th 597, 602–604; In re
Marriage of Smith (2007) 148 Cal.App.4th 1115, 1120.) 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 only after
23.
contested proceedings were held—at which evidence was introduced and challenges were
considered—and after the court made extensive factual findings and concluded 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.”
Some of Tapia’s claims appear to rest on express or implied challenges to the
factual determinations underpinning the judgment and Physical Solution. As to those
challenges, our review is constrained by the substantial evidence standard of review.
(Santa Maria, supra, 211 Cal.App.4th at p. 286, citing Reichardt v. Hoffman (1997) 52
Cal.App.4th 754, 766–767 [“Where appellants challenge the sufficiency of the evidence
we defer to the trial court”].)
“When a trial court’s factual determination is attacked on the ground that
there is no substantial evidence to sustain it, the power of an appellate court
begins and ends with the determination as to whether, on the entire record,
there is substantial evidence, contradicted or uncontradicted, which will
support the determination, and when two or more inferences can reasonably
be deduced from the facts, a reviewing court is without power to substitute
its deductions for those of the trial court. If such substantial evidence be
found, it is of no consequence that the trial court believing other evidence,
or drawing other reasonable inferences, might have reached a contrary
conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.)
VI
ANALYSIS
A. The Physical Solution’s Allocation of the NSY Does Not Violate
California’s Water Priorities
Tapia contends the Physical Solution violates California’s established water rights
priorities to water in a groundwater basin because the allocation of the available NSY 5
offended two principles: (1) it allocated production rights to the PWS despite the PWS
holding a lower priority than Tapia and (2) it allocated production rights in the NSY to
5The NSY was 82,300 afy for the AVAA basin as a whole, but after deducting the United
States’ allotted federal reserved rights, the remaining available NSY was 74,700 afy.
24.
other overlying landowners while depriving Tapia of any equivalent production right in
disregard of Tapia’s correlative rights with other overliers.
1. The Allocations to the PWS Accords with California Law
Tapia correctly notes overlying landowners have rights to a basin’s groundwater
that 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 NSY 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’s water use was
transformed from an appropriative use into rights entitled to equivalent priority with the
rights of overliers.6 (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”].) Accordingly, we reject Tapia’s claim that
allocating production rights to the PWS offends California’s structure for prioritizing
water rights. (See, e.g., 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
6This aspect of Tapia’s argument appears predicated on the claim that the PWS hold only
appropriative groundwater rights, and in cases of overdraft, Tapia’s overlying rights supersede
appropriative claims to groundwater. While cases such as Corona Foothill Lemon Co. v.
Lillibridge, supra, 8 Cal.2d 522 support the general proposition that overlying rights supersede
appropriative rights (id. at pp. 530–531), Tapia ignores that the court found the PWS had
perfected certain prescriptive rights, thereby elevating the PWS’s rights to equal priority with
overlying rights. Because Tapia makes no claim on appeal that the evidence is insufficient to
support the court’s finding that the PWS had perfected their prescriptive rights as against Tapia,
Tapia has waived any claim that the court erred in finding the PWS had obtained prescriptive
rights. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.) Accordingly, Tapia’s
legal argument falters on its false predicate—the Physical Solution did not allocate production
rights to holders of appropriative rights, but instead allocated production rights to holders of
prescriptive rights.
25.
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.)
2. The Allocations to Correlative Rights Holders Accords with
California Law
Tapia alternatively asserts the Physical Solution violates California law regarding
water rights priorities because it allocates the remaining NSY to overlying owners who
are currently pumping while denying him the correlative share to which he was entitled
by virtue of owning overlying land.7 Tapia argues this allocation violates correlative
rights principles, contending these principles confer on Tapia the right to be treated
equally with all fellow correlative rights holders based solely on his ownership of land,
regardless of whether Tapia demonstrated he was currently pumping for reasonable and
beneficial uses for his overlying lands.
Tapia correctly notes that, under California law, protection of an overlier’s rights
include protection for prospective uses as against the claims of lower priority users
(Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489, 525 (Tulare); Hillside
Memorial Park & Mortuary v. Golden State Water Co., supra, 205 Cal.App.4th at p.
539), and that overliers have a shared or common (correlative) right among each other 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). While overliers have equal
7Tapia also appears to assert the judgment and Physical Solution improperly deprived
him of his allocation because it rested on the erroneous disregard of his proof of the extent of his
pumping for reasonable and beneficial uses. However, as we conclude below, this aspect of
Tapia’s challenge fails because there was substantial evidence upon which the court could have
found Tapia failed to show the extent of his pumping for reasonable and beneficial uses, and
hence failed to show a basis for an allocation of production rights.
26.
priority, such “equal right, in cases where the supply is insufficient for all, [is] to be
settled by giving to each a fair and just proportion.” (Ibid.) Thus, where (as here) the
native supply is insufficient to meet the needs of all overliers, each overlier can be
“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.)
The case law, therefore, appears only to require that, as among correlative rights
holders, the division of an inadequate supply is tested by whether such allocation is
equitable. (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, 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.” (Barstow, supra, 23 Cal.4th at pp. 1247–1248; accord, City of Pasadena v.
City of Alhambra, 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 may employ equitable apportionment principles to the
extent necessary to reach a practical apportionment of the available water among parties
holding equivalent priorities. (Cf. San Fernando, supra, 14 Cal.3d at p. 265 [allocating
27.
water based on prescriptive rights “does not necessarily result in the most equitable
apportionment of water according to need. A true 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. … 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 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 Barstow, at p. 1248
[“Case law … does not support applying an equitable apportionment to water use claims
unless all claimants have correlative rights” (italics added)].)
Tapia appears to assert the Physical Solution’s equitable apportionment of the
remaining NSY among overliers wholly disregarded his correlative rights, in violation of
28.
Barstow’s admonition, because it extinguishes all future access by Tapia to any part of
the NSY for his future use in contravention of California law. Certainly, California seeks
to protect both actual uses and prospective reasonable beneficial uses by overliers. (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 that
acknowledges the rights held by overliers such as Tapia, but subordinates any future use
by Tapia to his fellow correlative rights holders who (unlike Tapia) demonstrated they
presently use the available supply for reasonable and beneficial purposes.
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 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, 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 riparian right merely to ensure water would remain
available for other existing interests competing for the same inadequate supply. (Long
29.
Valley, supra, at pp. 353-354.) Rejecting that argument in part,8 the Long Valley court
held that article X, section 2 of the California Constitution authorized the board to
determine that an undemonstrated or speculative riparian claim “loses its 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.” (Ibid.) “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.” (Id. at p. 359.)
Long Valley makes clear that, when there is a comprehensive adjudication in
which a court is called upon to divide and allocate a limited supply among competing
equal priority users whose demonstrated cumulative demands exceed the capacity of that
resource, California law (although precluding any solution purporting to entirely
extinguish correlative rights to future uses) permits the court to determine “the scope,
nature and priority of the 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
8The board’s order in Long Valley purported to entirely “extinguish” any unexercised
riparian rights appurtenant to the owner’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 held 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 [the owner’s] 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].” (Id. at p. 357, italics added.) Thus, while Long
Valley bars an adjudication that entirely extinguishes future overlying rights, it does not bar an
adjudication that preserves those rights but subordinates them to present and future actual
reasonable beneficial uses that arose prior to a dormant right holder’s attempt to use the supply.
30.
judgment and Physical Solution here comports with that approach: the court found that
Tapia had not shown the extent or reasonableness of his claimed beneficial uses, and
therefore had not demonstrated any statutory or equitable basis for an allocation of the
NSY under the Physical Solution, and that Tapia would be “subject to the provisions of
the Physical Solution.” The judgment thus recognized Tapia’s overlying future rights but
required any future exercise of that preserved right be exercised “subject to the provisions
of the Physical Solution.” The Physical Solution, by allocating the remaining available
NSY to holders of priority rights who demonstrated actual and reasonable beneficial uses
of their correlative interests, effectively subordinated Tapia’s future exercise of his
correlative rights to the present exercise by correlative rights holders who demonstrated
their existing reasonable domestic and nondomestic uses. We conclude the Physical
Solution, by preserving but subordinating Tapia’s access to the NSY, comports with
California law as construed and applied in Long Valley.
B. The Physical Solution’s Allocation of the NSY Does Not Violate
California’s Principles Promoting the Reasonable and Beneficial Use of
Water
Tapia argues the Physical Solution violates a cardinal constitutional requirement—
that water be put to reasonable and beneficial uses to the fullest extent possible and its
waste be prevented—because various elements of the Physical Solution or judgment are
incompatible with that requirement.
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 the requirement of this constitutional imperative:
“‘[T]he trial court … determine[s] whether [overlying rights holding]
owners, 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
31.
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. (1967) 67
Cal.2d 132, 140, fn. omitted.)” (Barstow, at p. 1242.)
Tapia contends the Physical Solution violates these principles in several ways,
including that it allocates the available NSY on a permanent basis, and it was not based
on an adequate evaluation of the reasonableness of each individual’s existing use.9
Tapia first asserts allocating the NSY on a “permanent” basis could violate the
reasonable and beneficial use requirement at some point in the future. Specifically, he
argues a particular user who received an allocation might change the user’s 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,10 the courts have recognized that physical solutions are
9Tapia’s opening brief also asserts the reasonable and beneficial use mandate was
violated because the Physical Solution (1) awarded a small water right as an incentive award to
the Wood Class representative, (2) granted certain of the parties the ability to transfer and/or
carryover any allocated amount, and (3) deprived Tapia of any share of the NSY based on the
assumption any future pumping by him would be unreasonable. However, these assertions are
interposed peremptorily, and are entirely undeveloped (by either citation to the record or by legal
argument) in Tapia’s opening brief. Because these assertions are unsupported by citations either
to the record or to pertinent legal authority, we do not further consider them. (Badie v. Bank of
America, supra, 67 Cal.App.4th at pp. 784–785 [“When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and citations to authority, we treat the
point as waived”]; San Diego Navy Broadway Complex Coalition v. California Coastal Com.
(2019) 40 Cal.App.5th 563, 588 [where contentions are unaccompanied by substantive
arguments or citation to pertinent evidence, courts deem the arguments waived].)
10It 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), and Tapia has not directed our attention to that part of the record in which there was
any objection below that the absence of a monitoring and adjustment system rendered the
Physical Solution incompatible with California’s reasonable and beneficial use requirement,
32.
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), and Tapia’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.11 (See generally Long Valley, supra, 25 Cal.3d 339; In re
Water of Hallett Creek Stream System (1988) 44 Cal.3d 448; City of Pasadena v. City of
Alhambra, supra, 33 Cal.2d 908.) Moreover, Tapia’s suggestion the Physical Solution
violates the reasonable and beneficial use mandate 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 to “further[] …
the State Constitution mandate and the State water policy” and to “establish[] a legal and
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
Tapia 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.
11Tapia’s contrary suggestion—that allocations must be subject to revisitation and
relitigation at unspecified periodic intervals—is unsupported by any relevant legal authority.
Although Tapia cites 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 did not address the requirements of a valid physical solution, nor does it contain language
suggesting a court must constantly revisit water rights adjudications.
33.
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 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 water use,” 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 that might transgress the reasonable and beneficial use mandates.12
Tapia also asserts the court adopted the Physical Solution without an “adequate”
examination of whether the allotted production rights were being devoted to “reasonable
and beneficial” purposes. (Tulare, supra, 3 Cal.2d at p. 535.) We disagree. The court
heard extensive evidence from two experts, Robert Beeby and Robert Wagner, who
opined the parties who were presently using water (and who received allocated
production rights) were reasonably using the amounts of water they extracted and were
devoting it to beneficial purposes.13 Tapia does not appear to assert the inquiry was
12For these reasons, we also reject Tapia’s argument that Santa Maria, supra, 211
Cal.App.4th 266 undercuts the validity of the Physical Solution adopted here. Santa Maria
stated: “‘[I]f a physical solution be ascertainable, the court has the power to make and should
make reasonable regulations for the use of the water by the respective parties, provided they be
adequate to protect the one having the paramount right in the substantial enjoyment thereof and
to prevent its ultimate destruction, and in this connection the court has the power to and should
reserve unto itself the right to change and modify its orders and decree as occasion may demand,
either on its own motion or on motion of any party.’ ([Peabody v. City of Vallejo, supra, 2
Cal.2d] at pp. 383–384.)” (Id. at p. 288, italics added.) That is precisely the ability reserved by
the Physical Solution as described above.
13Beeby’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
beneficial uses to which such water was devoted. This data provided the basis for his conclusion
that, with limited exceptions, the amounts drawn were being reasonably used for beneficial
34.
inadequate as to other landowners, but instead asserts the inquiry was inadequate as to
Tapia because he also presented evidence of the amounts he used and the purposes for
such use that the trial court erroneously rejected. As we conclude below, we do not
review this aspect of Tapia’s claim de novo but must instead affirm the finding if there is
substantial evidence to support the ruling as to Tapia. Because we conclude the court’s
inquiry into the reasonable and beneficial uses of the water by those receiving production
rights was adequate, and the evidence supports the trial court’s findings thereon, we
reject Tapia’s argument that the court inadequately assessed whether the Physical
Solution satisfied the reasonable and beneficial use requirement.
C. Substantial Evidence Supports the Judgment as to Tapia
Tapia argues the trial court erred in denying him production rights to “continue to
use water at their current levels” (capitalization omitted) because he established—through
his testimony as well as two declarations allegedly admitted at trial—his baseline
groundwater use and the reasonable and beneficial use for that water.14 Tapia, although
recognizing a trial court may fashion a remedy through a Physical Solution to preserve a
water basin, argues it may “neither change priorities among the water rights holder 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), and asserts the
trial court’s Physical Solution violated Barstow’s equitable apportionment mandate by
eliminating Tapia’s vested rights without considering the evidence he presented at trial.
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 the
parties receiving production rights under the Physical Solution had historically applied their
water to beneficial uses in amounts that were appropriate for such beneficial purposes.
14The evidence established, and on appeal Tapia does not claim to the contrary, that the
PWS had obtained prescriptive rights as against Tapia. Instead, Tapia also appears to assert on
appeal the Physical Solution unreasonably burdens Tapia, in violation of Barstow, supra, 23
Cal.4th 1224, by stripping him of all economic benefits of the land. While the Physical Solution
certainly limits Tapia’s use of free groundwater, Tapia apparently farmed the property using
imported water through at least 2009, which belies his appellate claim that the limits imposed on
Tapia deprived him of any economically viable use of his farm.
35.
The record is clear that the trial court carefully listened to Tapia’s evidence15
(asserting he had used an average of 534.5 afy during the “baseline” period for use on his
overlying property), but ultimately rejected Tapia’s evidence as lacking credibility. Our
role on appeal is not to determine whether Tapia presented sufficient evidence that could
have supported a contrary finding, but whether there is substantial evidence to support the
trial court’s finding that Tapia “failed to prove their groundwater use.” “As the trier of
fact, the trial court is the sole judge of the credibility and weight of the evidence; we do
not judge credibility on appeal.” (In re Marriage of Brewster & Clevenger (2020) 45
Cal.App.5th 481, 500.) Instead, we examine only whether there was substantial evidence
to support the trial court’s finding that Tapia’s claimed use of 534.5 afy of water lacked
credibility.16 (See Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873–874 [“If such
substantial evidence be found, it is of no consequence that the trial court believing other
evidence, or drawing other reasonable inferences, might have reached a contrary
conclusion”].)
Here, Tapia’s claimed use of an average of 534.5 afy to irrigate his farmland for
the production of sweet corn and pumpkins was rebutted by numerous aspects of the
evidence. Tapia estimated his water use based on his total electrical bills for the baseline
period, but he admitted (and the evidence showed) that the electrical bills upon which this
extrapolation was based measured electrical use for other applications (not merely the
15The record shows the trial court interposed an occasional question to Tapia to help
clarify his testimony, and also asked its own additional questions before Tapia finished his
testimony.
16We note Tapia’s opening brief cites only to his own evidence and does not mention any
evidence or testimony contradicting his testimony. “An appellant challenging the sufficiency of
the evidence to support the judgment must cite the evidence in the record supporting the
judgment and explain why such evidence is insufficient as a matter of law.” (Rayii v. Gatica
(2013) 218 Cal.App.4th 1402, 1408.) Failure to discuss contrary evidence waives any argument
the judgment is not supported by substantial evidence. (Ibid.; Mendoza v. City of West Covina
(2012) 206 Cal.App.4th 702, 713–714 [“completely one-sided presentation of the facts” waives
the challenge to sufficiency of evidence].) Accordingly, while we could deem this claim waived,
we have elected to examine this claim.
36.
well), which rendered unreliable Tapia’s sole metric for estimating water use during 2011
and 2012. Moreover, even assuming some portion of the electricity was measuring
pumped water, Tapia admitted the well had a split in the main line that ultimately left his
property and irrigated land he did not own, and he had “no idea” what part of the water
pumped was used on land owned by others. There was also satellite imagery showing
that (in 2012) nearly 75 percent of Tapia’s farm was “fallowed” so that his claimed water
use was far in excess of the level of water necessary to grow pumpkins and corn on the
land actually under cultivation. Beeby also extensively testified that, based on his
expertise as to the amount of water needed to cultivate pumpkins and corn, Tapia’s
claimed history of water consumption for farming those crops on the amount of land
actually farmed was “far [in] excess of anything that did make sense.”
On this record, there was ample basis for the trier of fact to conclude Tapia’s
claimed water use was not credible. Accordingly, we conclude Tapia has not
demonstrated the evidence was insufficient to support the judgment as to Tapia.
We conclude substantial evidence supports the judgment as to Tapia, and the
Physical Solution is consistent with California law governing water priorities and the
constitutional reasonable and beneficial use requirement.
DISPOSITION
The judgment is affirmed as to Tapia. Each party is responsible for its costs on
appeal.
PEÑA, Acting P.J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
37.
Filed 4/14/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ANTELOPE VALLEY GROUNDWATER CASES*
F082492
LOS ANGELES COUNTY WATERWORKS
DISTRICT NO. 40 et al., (JCCP No. 4408)
Cross-complainants and Respondents,
v.
CHARLES TAPIA, Individually and as Trustee,
etc., et al.,
Cross-defendants and Appellants;
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.
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.