For the second time during the course of the case Environmental Law Foundation v. State Water Resources Control Board, parties on opposite sides of the litigation have disagreed with Siskiyou County, one of the defendants.
In Environmental Law Foundation, ELF and the Pacific Coast Federation of Fishermen’s Associations have alleged that Siskiyou County and the State Water Resources Control Board (SWRCB) have authority under the Public Trust Doctrine to manage groundwater in the Scott River basin, in particular to protect fisheries in that river.
Originally slated to be heard in the Superior Court for the County of Sacramento, Siskiyou County filed for a motion to transfer to Siskiyou’s courts, a motion that was denied by the Sacramento court.
Now, Siskiyou County has appealed that decision, and the SWRCB and the petitioners in the case have filed responses to that appeal.
The conclusion of the ELF brief states, “In order to move this case to its home county on venue grounds, the County invites this Court to overrule 150 years of law regarding the nature of water, real property and ownership of water.
“To invoke jurisdiction, the County asks the Court to misread and misinterpret both the Siskiyou Superior Court’s 1980 Decree. ... For all the foregoing reasons, this Court should decline the invitation.”
Both ELF and the SWRCB argue that Siskiyou County failed in its arguments for transfer, stating that ELF’s petition is not intended to affect currently adjudicated water rights in the Scott Basin and that either water is not “real property” or in the case of the water board, water rights are not real property as defined by certain statutes.
ELF argues in its brief, “Water in its natural state, whether flowing in rivers or in underground aquifers, is not property because it is not subject to ownership,” instead stating that courts have held that there is only a right to use water. “The right in water has been identified by numerous courts as a usufructuary right, and not one of proprietary possession.”
In a similar vein, the SWRCB argues, “Water is owned and controlled by the people of the State of California. ... While a water right holder has the right to take and use the water, they do not own the water and cannot waste it.”
Siskiyou County has argued that if the courts rule in favor of the petitioners that the ruling will affect the adjudicated water rights in the Scott Basin, but both the SWRCB and ELF argue that the case pertains only to water outside the adjudicated area and that the court should not move the case to Siskiyou County on the concern that transferring Public Trust authority to the state may lead to a reopening of the adjudication in the future.
“This litigation involves only the authority of the County and of the State Water Board,” the SWRCB brief concludes. “If ELF prevails, either of these entities may someday exercise that authority in a way that affects water rights in Siskiyou County.
“This litigation itself implicates neither any right to real property nor any right adjudicated in the 1980 Scott River Adjudication.”
Both parties’ briefs were filed on March 21 with the California appeals court for the Third Appellate District.
– David Smith
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