Water Storage Dist. v. State Wat. Resources Cont. Bd.
Filed
4/18/13 North Kern Water Storage Dist.
v. State Wat. Resources Cont. Bd. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
NORTH KERN WATER STORAGE
DISTRICT et al.,
Plaintiffs and
Appellants,
v.
STATE WATER RESOURCES CONTROL
BOARD,
Defendant and
Respondent;
CITY OF BAKERSFIELD,
Real Party in
Interest and Respondent.
F063989
(Super.
Ct. No. S-1500-CV-270613)
APPEAL from
a judgment of the Superior Court of
Law Offices
of Young Wooldridge, Scott K. Kuney, Ernest A. Conant, and Alan F. Doud for
Plaintiff and Appellant North Kern Water Storage District.
Best, Best
& Krieger, Jill N. Willis and Jason Ackerman for Plaintiff and Appellant
City of Shafter.
McMurtrey,
Hartsock & Worth, Gene R. McMurtrey and Daniel N. Raytis for Plaintiff and
Appellant Buena Vista Water Storage District.
Somach
Simmons & Dunn and Nicholas A. Jacobs for Plaintiff and Appellant Kern
County Water Agency.
Kamala D.
Harris, Attorney General, Kathleen A. Kenealy, Assistant Attorney General,
Denise Ferkich Hoffman and Matthew G. Bullock, Deputy Attorneys General, for
Defendant and Respondent.
Virginia
Gennaro, City Attorney; Duane Morris and Colin L. Pearce for Real Party in
Interest and Respondent.
-ooOoo-
This is an
appeal from a judgment denying a petition for
(f).) The trial court concluded
appellants were beneficially interested parties with a right to bring the
petition to review respondent’s administrative decision and, addressing the
merits of the petition, rejected appellants’ challenges to the administrative
decision. We conclude, to the contrary,
that appellants have not demonstrated a beneficial interest, as that term is
defined in the case law, sufficient to challenge respondent’s administrative
orders at issue in this proceeding.
Respondent’s orders do not adversely affect any protected interest of
any appellant. For this reason, we
dismiss the appeal thereby, in net effect, affirming the judgment rejecting
appellants’ challenges to the administrative decision. (See Code Civ. Proc., § 913.)
FACTS AND PROCEDURAL HISTORY
General Background
In general
terms, a person or entity not owning property along a stream or river could,
prior to 1914, establish a right to use available water in the stream or river
by giving notice of a claim and actually using the water. (See Hutchins, The Cal. Law of Water Rights
(1956) p. 86 et seq.) These pre-1914
rights have come to be known as nonstatutory rights of appropriation. (Id.
at p. 86.) (The law governing riparian
use is different (id. at pp. 52-56);
this case does not involve riparian rights, i.e., the rights accruing to
property owners because their property abuts the river (see
In 1914, the Water Commission Act
went into effect. Thereafter, the right
to appropriate water could only be established through a statutory
procedure. (Hutchins, The Cal. Law of
Water Rights, supra, at pp.
94-95.) The Water Commission Act is now
codified in the Water Code at sections 100 to 4407.
to appropriate water is administered by a body now known as the State Water
Resources Control Board, respondent in this appeal (hereafter respondent or the
board). (See § 174; Hutchins, The Cal.
Law of Water Rights, supra, at
pp. 96-97.)
Nonstatutory
appropriative rights are “senior†or “junior†to one another, normally depending
upon the date of appropriation. However,
the owner of a nonstatutory right of appropriation is permitted to change the
purpose and place of use of the water, and to sell or otherwise transfer the
right. (North Kern Water Storage Dist. v. Kern Delta Water Dist. (2007) 147
Cal.App.4th 555, 559 (North Kern).) Thus, changes in ownership of nonstatutory
rights of appropriation do not alter the seniority—that is, the relative
priority—of such rights, but such changes in use or ownership must not injure others
with rights in the watercourse. (
All use of water must be reasonable and beneficial. (Ibid.;
see Cal. Const., art. X, § 2 [rights limited to water “reasonably required
for the beneficial use to be servedâ€].)
Nonstatutory rights of appropriation
have sequential priority. That is, when
the river flow is insufficient to supply all appropriators, the highest
priority appropriator (usually the right established the earliest) is entitled
to its full appropriation before the next highest is entitled to any, and so
forth, throughout the hierarchy of rights holders; there is no mandatory
proration of the available flow of the river.
(North Kern, supra, 147
Cal.App.4th at p. 561.) Further,
pre-1914 nonstatutory rights have priority over statutory rights granted in
Water Code proceedings. (
Appellants
North Kern Water Storage District (North Kern), Kern County Water Agency, and
Buena Vista Water Storage District own nonstatutory rights to appropriate water
from the Kern River.
name="_ftnref2" title="">[2] Appellant City of Shafter apparently does not
own rights directly, but uses water supplied through North Kern’s rights.
Although there have been sales and
consolidations of ownership of Kern River appropriative rights, there have been
no new appropriative rights in well over a century. For example, in a 1964 adjudicative decision
of respondent’s predecessor agency, which rejected appropriation applications
from some of the present appellants, the board found there was no
unappropriated water available in the Kern River system. (Cal. Water Rights Bd., Decision D 1196 (Oct.
29, 1964), p. 5, at
[ as of Mar. 20, 2013] (D 1196).) When
there is no water available for new appropriations on a river system, the river
is described as “fully appropriated.â€
Respondent most recently affirmed its order that the Kern River was
fully appropriated in 1998.
After the river became fully
appropriated, there were periodic disputes among the numerous rights holders,
which resulted in a court decree and a contractual agreement that, together,
governed operation of the river for most of the 20th Century. (D 1196, supra, at p. 3.) In 1976,
however, one of the rights holders, Kern Delta Water District (Kern Delta),
announced plans to increase usage of water over the historical usage of its
predecessors in interest. North Kern
objected and sued to establish that the right to greater usage had been
forfeited by Kern Delta’s predecessors.
(See North Kern, supra, 147
Cal.App.4th at p. 567.) The case
resulted in two long trials and two appeals, at the end of which it was
determined that Kern Delta’s rights had been reduced through nonuse. (Id.
at pp. 581-582.)
The published appellate opinion in
rights holders, junior in priority to the forfeited Kern Delta rights, had the
right to the water freed up by the forfeiture judgment to the extent and in the
order of seniority of their appropriative rights. (North
Kern, supra, 147 Cal.App.4th at p. 583.)
If the forfeiture of rights resulted, however, in water that exceeded
the claims of those junior appropriators, such water would be “unappropriatedâ€
and would be subject to appropriation through respondent’s statutory permitting
process. (Id. at pp. 583-584; see also § 1206.) The North
Kern opinion concluded that the determination whether a forfeiture resulted
in unallocated water—that is, whether the forfeited water exceeded the claims
of existing rights holders—was a matter within respondent’s administrative
jurisdiction and would not be determined in the first instance by the courts in
the forfeiture proceedings. (147
Cal.App.4th at p. 583.)
The
determination whether forfeited water rights results in unappropriated water is
governed by the statutory procedure established in the Water Code. Prior to the 1987 enactment of sections 1205
through 1207 (see Stats. 1987, ch. 788), respondent was required to “consider
and act upon all applications for permits to appropriate water and to do all
things required or proper relating to those applications.†(Legis. Counsel’s Dig., Sen. Bill No. 1485, 4
Stats. 1987 (1987-1988 Reg. Sess.) Summary Dig., p. 244.) The 1987 legislation permitted respondent to
adopt a declaration that a river was fully appropriated when, based upon
previous water rights decisions, respondent determined “that no water remains
available for appropriation.â€
(§ 1205, subd. (b).) Once a
river system has been designated by respondent as “fully appropriated,†the
governing statutes prohibit respondent from accepting and processing
applications for new permits to appropriate water from the river (with certain
exceptions not relevant here). That was
the case concerning the Kern River at the time of the published appellate
opinion in North Kern. (See North
Kern, supra, 147 Cal.App.4th at p. 583.)
As a result, the first step in determining whether the adjudicated
forfeiture of Kern Delta’s rights resulted in unappropriated water involves
invocation of the statutory process by which respondent reevaluates the fully
appropriated status of a river system.
While the Water Code prohibits respondent from accepting applications
for permits to appropriate water from fully appropriated rivers, the code
permits respondent to accept petitions to revoke
or revise the “fully appropriated†designation of a river system, or to
make such a determination on its own motion, after notice and hearing. (§ 1205, subd. (c).)
The Present Case
On the same
day the Supreme Court denied review of the North
Kern decision, April 25, 2007, appellants North Kern and City of Shafter
filed a petition with respondent to consider the propriety of revoking or
revising the declaration that the Kern River was fully appropriated. In the following weeks and months, City of
Bakersfield (Bakersfield), Kern Water Bank Authority, and the remaining
appellants filed similar petitions.
Appellants’ petitions were based on similar theories: They contended the Kern River probably
remained fully appropriated but the North
Kern forfeitures presented a reasonable basis for respondent to examine in
a formal hearing whether the forfeitures freed additional water for
appropriation. Appellants sought to
appropriate such water if it was found to exist, but they urged respondent to
limit its inquiry to the availability of forfeited water. Bakersfield’s petition contended, as the city
has throughout these proceedings, that all water rights forfeited through the
as unappropriated waters notwithstanding any claims by entities with junior
water rights.
title="">[3] In addition, Bakersfield alleged that water
was being taken in excess of various appropriators’ rights, requiring
respondent’s intervention in the allocation of water from the river.
contended that the North Kern
decision constituted a change in circumstances that justified revocation or
revision of the “fully appropriated†designation. In addition, the petition contended that
“[s]ince at least 1986†the Kern River Watermaster
divert from the river any abnormally high water flow that otherwise would be
diverted into the California Aqueduct pursuant to the formal policy and
agreement among all the holders of appropriative rights to the Kern River, with
the implication that such water is in excess of the rights of all such rights
holders.
water from the Kern River is diverted into the California Aqueduct is a federal
flood control project known as the Intertie.
The purpose of diversion of water into the Intertie is to prevent
flooding in the Kern River basin. The
water is transported for use in Southern California; at times of such diversion
from the Kern River, the operator of the California Aqueduct reduces the flow
of water into the aqueduct from rivers further north in California, in order to
create capacity to receive Kern River flood waters. In our discussion of this flood water, we
will refer to it as “Intertie water.â€
After
review of materials submitted by the various petitioners, respondent’s Chief,
Division of Water Rights, determined there was reasonable cause to conduct a
hearing on the question of whether the Kern River remained a fully appropriated
stream system. (See Cal. Code Regs.,
tit. 23, § 871, subd. (c)(1), (4).
cause determination stated the forfeiture decision in North Kern “can be considered a change in circumstances†since the
previous designation of the river as fully appropriated. However, the primary basis for recommending a
hearing was that the diversion of Intertie water “on numerous occasions since
its construction in 1977 confirms that there has been a change in circumstances
since D1196,†the 1964 declaration of fully appropriated status.
The hearing on the petition
occurred on October 26 and 27, 2009, before a member of the state water board,
appointed as hearing officer for the proceeding. Respondent’s Order No. WR-2010-0010, removing
the designation of the Kern River as fully appropriated, was adopted by
respondent on February 16, 2010. The
various parties’ petitions for rehearing were denied in Order No. WR-2010-0016,
adopted on May 4, 2010.
Order No. WR-2010-0010 reached two
conclusions: First, “the evidence
presented by the parties did not clearly resolve whether the partial forfeiture
of Kern Delta’s rights itself created any additional unappropriated
water.†Second, the evidence showed that
“in nine separate years since 1978†water in excess of water claimed by Kern
River rights holders had been diverted into the Intertie as a flood control
measure. Because of the evidence that
“whenever water has been released into the Intertie in the past, all Kern River
water right claims had already been satisfied,†“[t]his water is, by
definition, unappropriated water.â€
Respondent therefore amended the Declaration of Fully Appropriated
Streams “to allow for processing the applications to appropriate water from the
Kern River in accordance with the provisions of the Water Code and other
applicable law.†Order No. WR-2010-0010
expressly recognized that respondent had not determined “the specific amounts
of water available for appropriation under the applications, the season of
water availability, the public interest in approval or denial of the
applications, and any conditions to be included in any permits that may be
issued on the applications.†The order
stated the focus of the board’s inquiry “was on the relatively narrow task of
determining if the evidentiary record supports revising the fully appropriated
status of the Kern River.â€
The petitions for reconsideration
contended that, if there was insufficient evidence to demonstrate that the
unappropriated water beyond the claims of existing rights holders, then the
petitions to revoke the fully appropriated designation should have been
denied. In the alternative, the reconsideration
petitions requested that respondent reopen the hearing to receive further
evidence concerning the effects of the North
Kern decision on the fully appropriated status of the Kern River. Finally, with respect to the Intertie water,
the petitioners requested that respondent amend the order to “‘clearly state
that occasional flood flows are not the basis for amending the [fully
appropriated stream] declaration absent an application’ to place such waters to
beneficial use ….â€
Respondent denied the petitions for
reconsideration by Order No. WR-2010-0016.
Respondent determined it was under no statutory mandate to determine the
availability of unappropriated water based on the North Kern decision “at this stage.†All that was required to justify revocation
of the fully appropriated designation was a “change in circumstance†that
“demonstrates that there is unappropriated water on the Kern River.†“[T]he determination whether sufficient
unappropriated water is available for the diversion and use proposed under an
application can best be decided in proceedings to issue or deny a permit on
that application.â€
Appellants filed a petition for
writ of administrative mandate on June 2, 2010.
The petition contended respondent acted in excess of its jurisdiction
because the water that was the basis for revocation of the fully appropriated
designation was flood water lawfully diverted under other laws, and was not
unappropriated water over which respondent has jurisdiction. In addition it contended respondent lacked
jurisdiction because it had not properly acted on respondent’s own motion and
it had not actually granted any party’s petition for revocation of the
declaration. (§ 1205, subd.
(c).) The petition asserted that
respondent abused its discretion by adopting findings that were not supported
by substantial evidence. Finally, the
petition claimed that respondent abused its discretion by failing to declare
the Kern River continued to be fully appropriated, arguing there was no
evidence presented that the North Kern
decision resulted in any unappropriated water in excess of the rights of junior
appropriators.
After receiving points and
authorities and holding a hearing on the petition, the trial court denied the
petition for writ of administrative mandate.
The court rejected Bakersfield’s contention that appellants lacked
standing to bring the writ petition. It
determined any person or entity permitted by section 1205 to file a petition to
revoke or revise a fully appropriated declaration retains that statutory
standing in any proceeding “to test before a court of law the legality of
[respondent’s] final decision.†The
trial court determined respondent was not required under the terms of the
present proceeding whether the decision resulted in unappropriated water. The court determined respondent had
jurisdiction to conduct the hearing under section 1205, subdivision
(c). The trial court concluded
substantial evidence supported respondent’s determination that the water
diverted into the Intertie was unappropriated and that this determination
supported further proceedings on applications for new appropriations of that
water. After receiving written
objections to the ruling, the trial court issued a final judgment on
July 21, 2011, adopting the court’s June 14, 2011, statement of decision
and denying the petition for writ of administrative mandate.
DISCUSSION
At the
trial court hearing, respondent and Bakersfield contended appellants had not
demonstrated any manner in which they were adversely affected by respondent’s
Order Nos. WR-2010-0010 and -0016. In
their initial briefs on appeal, no party renewed this contention. Pursuant to Government Code section 68081,
this court requested appellants address this issue by supplemental brief. (See Walton
v. City of Red Bluff (1991) 2 Cal.App.4th 117, 129 [appellate court may
raise issues on its own motion if it complies with Gov. Code, § 68081].)
Code of
Civil Procedure section 1086 provides that a writ of mandate “must be issued
upon the verified petition of the party beneficially interested†when an
administrative board has denied the petitioner “use and enjoyment of a right or
office to which the party is entitled …†(id.,
§ 1085). (See also
issuance of properly filed writ after final administrative order or decision];
Sacramento County Assessment Appeals Bd. (1999) 75 Cal.App.4th 327, 331
[“beneficial interest†requirement applies both to ordinary mandate and
administrative mandate proceedings].) A
party is “‘beneficially interested’†for these purposes if the party has “‘some
special interest to be served or some particular right to be preserved or
protected over and above the interest held in common with the public at
large.’†(People ex rel. Dept. of Conservation v. El Dorado County (2005) 36
Cal.4th 971, 986.) This standard, the
Supreme Court has stated, “‘is equivalent to the federal “injury in fact†test,
which requires a party to prove by a preponderance of the evidence that it has
suffered “an invasion of a legally protected interest that is [both] ‘(a)
concrete and particularized, and (b) actual or imminent ….’â€â€™ [Citation.]â€
(Ibid.; see also
Manhattan Beach (2011) 52 Cal.4th 155, 165.)
of Health Services (2007) 146 Cal.App.4th 1457, provides an example of the
“beneficial interest†requirement.
Savient was the manufacturer of a drug used in certain instances to
treat a condition related to HIV. The
Department of Health Services (the department) had a program under which
certain HIV drugs were provided to persons not eligible for Medi-Cal. At various times, due to the cost of
Savient’s drug and the budgetary restrictions on the program, the drug was
listed and delisted for use on certain male patients. (Id.
at pp. 1461-1463.) The program was
administered by Ramsell Corporation under a contract with the department. The department, however, was the only entity
involved in the decision to delist Savient’s drug. (Id.
at p. 1463.) After the department
delisted Savient’s drug, Savient filed a petition for writ of mandate in which
it sought “to invalidate the delisting and to nullify the Department’s contract
with Ramsell.†(Id. at p. 1461.) The trial
court, among other rulings, concluded Savient lacked standing to challenge the
contract between the department and Ramsell.
The Court of Appeal affirmed this ruling. (Id.
at p. 1465.) After setting forth the
requirements for “beneficial interest†established in prior Supreme Court
cases, the Savient court concluded
that “[n]othing done by virtue of the Ramsell contract hurt Savient. Because the contract did not specially
aggrieve Savient, it lacks standing to attack the contract.†(Ibid.)
The Water
Code provides a similar standard specifically applicable in the present
case: “Any party aggrieved by any
decision or order may, not later than 30 days from the date of final action by
the board, file a petition for a writ of mandate for review of the decision or
order.†(§ 1126, subd. (b).) In State
Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, the Court of
Appeal concluded the language of section 1126 incorporated the same
requirements of a direct and immediate injury that is encompassed in the
“beneficial interest†standard of the general mandamus statute. (136 Cal.App.4th at pp. 829-830.) In addition, the court concluded the
“‘aggrieved’†requirement of section 1126 adopted the same standards of direct
and immediate injury encompassed in the statutory requirement that only an
“‘aggrieved’†party is permitted to appeal from a civil judgment. (136 Cal.App.4th at p. 829.)
In the
relevant portion of State Water Resources
Control Bd. Cases, supra, 136
Cal.App.4th, owners of land outside the designated geographic area for use of
irrigation water supplied by certain appropriators (id. at p. 821, fn. 60), contended on appeal that the board had
erred in imposing environmental impact measures when it expanded the
geographical service area to include the owners’ land in an expanded-use
area. (Id. at p. 828.) The
Court of Appeal noted the mitigation measures were applicable only to the
original appropriator, the United States Bureau of Reclamation (Bureau), as
operator of the Central Valley Project.
(Id. at pp. 829-830; see
not imposed any mitigation measures on the land owners and “there [was not] any
evidence in the record the Bureau intended to pass on the cost of mitigationâ€
to the land owners, they were not aggrieved by the board’s order. (Id.
at p. 830.) The owners also
contended they were aggrieved by the uncertainty created by the possibility the
Bureau would impose fees for mitigation in the future, and the prospect of
“‘the expense, delay and risk of going through another prolonged and expensive
administrative proceeding’†to prove their lands were not subject to the
mitigation requirements. (
The court concluded this speculative injury did not constitute an
“immediate, pecuniary, and substantial injury†that supported standing to
pursue the appeal. (Id. at p. 831.)
In the
present case, respondent has not even purported to adjudicate water
rights. Instead, Order No. WR-2010-0010
specifically provides that no determination has been made concerning the amount
of water that will be taken by existing rights holders, and that this will be
an issue only in future proceedings in which applicants for new water permits
will be required to prove “when and how much available water there is for
appropriation.†Further, no permit for
new appropriation of water will affect the holders of nonstatutory
appropriative rights. (
pp. 583-584; see Allen v. California
Water & Tel. Co. (1946) 29 Cal.2d 466, 489.)
The trial
court ruled that any party with standing to initiate administrative proceedings as an “‘interested person’†under
section 1205 must also be entitled to initiate judicial proceedings to review “the legality†of any resulting
administrative decision. In the cases
cited for that proposition, however, the party who sought judicial review was
in fact aggrieved by the outcome of the administrative hearing. Thus, in Bodinson
Mfg. Co. v. California Emp. Com. (1941) 17 Cal.2d 321, an employer sought
review of an administrative order awarding unemployment benefits to its former
employee. (Id. at p. 324.) First, the
court noted that an employer was specifically permitted by the statute to
intervene in an unemployment compensation hearing as an “interested
party.†Second, although the court did
state that, “it seems to us that elemental principles of justice require that
parties to the administrative proceeding be permitted to retain their status as
such throughout the final judicial review by a court of law, for the
fundamental issues in litigation remain essentially the same,†this statement
was dicta. (Id. at p. 330.) The issue
before the court was not whether a party which had not been adversely affected
by the administrative order could petition for mandamus review. Instead, the court noted that the employer’s
reserve account—its required contribution to the unemployment compensation
fund—would be affected by the compensation award; accordingly, “it seems
apparent that the employer whose reserve account is affected is the only person
having sufficient incentive to challenge a decision awarding benefits. Action by this employer provides the only
procedural guarantee that the commission can be held by legal process to comply
with the requirements of the statute under which it operates.†(Ibid.) Thus, in Bodinson,
the party which sought judicial review was aggrieved by the administrative
order.
In
Works (1955) 44 Cal.2d 90, the board issued a water appropriation permit to
a conservation district allowing it to take water from a creek. The appellants were appropriators with
existing rights; they filed a petition for writ of mandate to challenge the
administrative order. Judgment for the
board was granted after its demurrer to the petition was sustained. (Id.
at p. 93.) The primary issue in the case
was the appellants’ claim that the board was not entitled to determine, in the
course of considering an application for a new appropriation permit, that there
was unappropriated water in a stream, in other words, that the determination of
unappropriated water was a judicial function in the first instance, not a
matter for administrative order. (
that the board was permitted to determine whether unappropriated water exists
as part of its consideration of an application for a new permit. (Id.
at p. 106.) “If the [board] erroneously
concludes that unappropriated water is available to supply an applicant when
there is no reasonable expectation of such a supply, the error may be corrected
upon a review of the determination. But
a holding that such a danger is so imminent as to justify an independent
judicial proceeding to determine the availability of unappropriated water
before the [board] considers an application, would deprive the administrative
proceeding of all of its proper functions in the issuance of a permit.†(Ibid.) After concluding the issue was properly
addressed in the administrative proceedings, the court briefly addressed the
board’s claim that the appellants were not interested parties in the
administrative hearing nor parties with a beneficial interest sufficient to
support mandamus relief. (
petition to allege they had appeared in the administrative hearing and had
objected to the application for a new permit, the court stated: “[S]tatutory authority allows them to present
a protest to the application before the [board] … and, if upon amendment to
their petition they show their participation as interested parties in that
proceeding, they may establish
proceeding to review the [board’s] determination.†(Ibid.,
italics added.) The clear implication of
the quoted passage, which cites to Bodinson
Mfg. Co. v. California Emp. Com., supra, 17 Cal.2d at page 330, as its sole
supporting authority, is that the appellants might, upon filing an amended
complaint, be able to allege a beneficial interest that was adversely affected
by the order granting the new permit; the court did not hold that, merely by
participating in the administrative hearing, the appellants automatically were
entitled to maintain a petition for writ of mandamus.
The mere
fact that a party has standing to participate in a proceeding in the original
tribunal does not mean the party is entitled to appeal from that proceeding no
matter what the result in the proceeding.
There is an additional requirement that the party be “aggrieved,†in a
civil proceeding or under section 1126, subdivision (b) of the Water Code, or a
party be “beneficially interested†under Code of Civil Procedure section
1086. A party who has received
essentially the relief it sought in the trial court is not permitted to appeal
from the resulting order, even though the order, in the abstract, is an
appealable order. (Hensley v. Hensley (1987) 190 Cal.App.3d 895, 898.) There is no logical reason the same rule
should not apply to review of administrative orders. (See Save
the Plastic Bag Coalition v. City of Manhattan Beach, supra, 52 Cal.4th at
p. 165.) Unlike Consolidated Irrigation Dist. v. City of Selma (2012) 204
Cal.App.4th 187, 206, there is no potential that respondent’s administrative
order will reduce, directly or indirectly, the water available to appellants
under existing appropriative rights.
In rare
instances, courts may grant “public interest†standing to a party who seeks
review of an administrative decision. (
Manhattan Beach, supra, 52 Cal.4th at p. 166.) Such standing is permitted when the issue
involves a “‘public right’†and the mandate petition seeks enforcement of a
“‘public duty.’†(Ibid.) “No party … may
proceed with a mandamus petition as a matter of right under the public interest
exception,†however, and permitting a party to proceed on that basis is an
exception to the usual “beneficial interest†requirement. (Id.
at p. 170, fn. 5.) Even when the
requirements for public interest standing are met, “‘[t]he policy underlying
the exception may be outweighed by competing considerations of a more urgent
nature.’†(Ibid.) In the present case,
respondent generally recognizes the requirement that any permits it grants for appropriation
of water will be subordinate to the existing interests of pre-1914
appropriators. Accordingly, there is no
significant need for judicial intervention at this time to restrain the acts of
an administrative agency that will, or is poised to, overstep its statutory
authority. In the unlikely event
respondent does issue permits that somehow impinge upon existing nonstatutory
rights of appropriation, the injured parties at that point will have ample
opportunity to obtain judicial review of respondent’s actions. (See Sacramento
County Fire Protection Dist. v. Sacramento County Assessment Appeals Bd.,
supra, 75 Cal.App.4th at p. 334 [“This is not a situation where the issue
raised by the District will be removed from judicial review if standing is denied.â€].) Accordingly, we conclude the present case, at
this preliminary stage of the administrative proceeding, is not an appropriate
case in which to confer public interest standing upon these appellants.
We wish to
emphasize one further point. Throughout
these proceedings, the parties and the board have used the words “appropriatedâ€
and “unappropriated†in two different senses, producing some confusion. In water law, “appropriated†refers to water
to which a nonriparian owner asserts an enforceable right to take or use
water. “Unappropriated†water is that
water flowing in the streambed in excess of the rights claimed by appropriative
and riparian users. (See §§ 1202,
1205, subd. (b).) In other words,
“appropriated†and “unappropriated†refer only to the right to take or make use
of water for a beneficial purpose. In
common usage outside the realm of water law, “appropriated†means actual
possession of or use of, whether with or without claim of right. (See American Heritage Dict. (3d college ed.
2000) p. 67, col. 1 [second meaning of “appropriateâ€].) Similarly, in common usage, something that is
“unappropriated†has not actually been taken by anyone. Actual usage, rather than the right to use,
is at the core of this common meaning of the terms.
Both of
these meanings of “appropriated†and “unappropriated†have been used in the
present case.
title="">[8] The evidence was clear, and essentially
uncontroverted, that during occasional flood years water that is
unappropriated—not physically claimed by any entity with a right to the
water—has been diverted into the California Aqueduct and has been used, without
claim of right, by Southern California water interests. Nevertheless, there was no evidence, and
respondent’s administrative orders do not conclude, that the nonuse of flood
water has resulted in the loss of the enforceable right to take or use. Forfeiture of the right to appropriate water
occurs only upon the failure of a rights holder to beneficially use water in
five consecutive years (§ 1241; North
Kern, supra, 147 Cal.App.4th at p. 560).
There is no evidence of this, and respondent has not determined there is
unappropriated water resulting from such continued lack of beneficial use.
Respondent has neither asserted nor
exercised the power to reduce the appropriative rights pursuant to which
appellants now receive water.
Accordingly, appellants are not aggrieved parties with a beneficial
interest to support their petition for writ of administrative mandate, nor are
they aggrieved parties entitled to maintain an appeal from the judgment denying
their petition.
DISPOSITION
The appeal
is dismissed. As a result, the judgment
affirming the administrative decision is affirmed. Respondents are awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
_____________________
DETJEN,
J.
WE CONCUR:
_____________________
CORNELL, Acting P.J.
_____________________
PEÑA, J.
name="_ftn1" title="">[1] All
further statutory references are to the Water Code unless otherwise
indicated.
name="_ftn2" title="">[2] The
nature of North Kern’s right to water from the Kern River is disputed by the
City of Bakersfield. For purposes of
this appeal, as we will discuss below, it does not matter whether North Kern
owns nonstatutory appropriative rights or, instead, receives water pursuant to
an agreement with the owner of such rights.
In either case, the water is taken pursuant to a pre-1914
appropriation. The present proceeding
does not involve an adjudication of North Kern’s rights.
