DFG seeks to combine water cases scott shasta 081910

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http://www.siskiyoudaily.com/highlight/x693095224/DFG-seeks-to-combine-water-cases-in-S-F-court

DFG seeks to combine water cases in S.F. court

By David Smith, Siskiyou Daily News August 19, 2010

California — The California Department of Fish and Game (DFG) is looking to have the courts solve two problems in one sitting, with a request to combine both the Farm Bureau v. California Department of Fish and Game and Klamath Riverkeeper v. California Department of Fish and Game cases in the San Francisco Superior Court.

The two cases deal with the Shasta and Scott Valleys, with the petitioning group in each urging the courts to keep the cases separate.

The Farm Bureau case deals with Fish and Game code section 1602, which covers diversions of water, and an allegation by the bureau that DFG has reinterpreted the statute in an over broad manner, requesting that the court clearly define what is meant by a “substantial diversion” in the statute.

In the Klamath Riverkeeper case, it is alleged that the DFG’s watershed-wide permitting program and Incidental Take Program both violate the California Environmental Quality Act (CEQA), with the petitioners seeking to have a statement that the DFG violated CEQA and be permanently enjoined from implementing the programs.

In late July, the DFG went to the courts to request a coordination of the cases with the transfer of the Farm Bureau case from the Siskiyou County Superior Court to the San Francisco Superior Court, where the Riverkeeper case was filed. If the coordination request is denied, the DFG requests in its motion that the Riverkeeper case be stayed until the Farm Bureau’s is resolved.

The DFG argues in its motion that the cases should be considered together because the two permitting programs are meant to bring individuals into compliance with section 1602 and the California Endangered Species Act (CESA).

Because of that interrelationship, the DFG says, it believes that “The Farm Bureau and Klamath Actions Share Common Questions of Fact and Law That Are Predominate and Significant to the Litigation.”

“Although the Farm Bureau’s challenge to the Programs is based on its interpretation of the scope of section 1602, and [Klamath Riverkeeper] challenge the Programs based on CEQA and CESA, both actions address a foundational element of the Programs’ permitting structure, namely the Department’s regulation of surface water diversions under the Programs,” the DFG motion reads.

The motion continues, stating that the DFG believes that the outcome of the 1602 question will directly relate to how it administers the programs brought into question by the Klamath Riverkeeper.

“In a nutshell, whether, and which, agricultural diverters, such as Farm Bureau members, are subject to the requested injunction in the Klamath action depends on the interpretation of the scope of Fish and Game Code section 1602 – the issue presented in the Farm Bureau action,” the DFG motion states.

Also cited in the motion are ways that the DFG feels a transfer would fulfill requirements, including avoidance of duplicative and inconsistent rulings, efficient use of resources and convenience, among other reasons.

Both Klamath Riverkeeper and the Farm Bureau have submitted responses to the DFG’s motion, requesting that the coordination and transfer request be denied.

Each party argues that the outcome of one case does not depend on the outcome of the other, although the Farm Bureau denies the similarities on multiple levels, including stating that the parties, claims, questions of fact and questions of law are different.

Before submitting the notice of related cases, the DFG had submitted a demurrer to the Farm Bureau complaint, which is a plea to dismiss a lawsuit on the grounds that although the statements made might be true, they are insufficient to support the claim.

In the demurrer, the DFG argued that it is enforcing the “plain language” of 1602, using accepted definitions of what it means to divert water from a river or stream. Following that argument, the DFG stated that the Farm Bureau’s interpretation of “divert” in 1602 is too limited.

Despite the demurrer submitted by the DFG, a date is set for a hearing on the transfer and coordination motion on Aug. 27 at 10 a.m. in the San Francisco Superior Court.