A single claim involving the Endangered Species Act remained intact.
By Alan Riquelmy, Courthouse News Service
Three California companies pushing back against state emergency regulations and water curtailment orders saw most of their claims dismissed by a federal judge Tuesday.
Los Molinos Mutual Water Company, Stanford Vina Ranch Irrigation Company and Peyton Pacific Properties LLC challenged the restrictions, which were in response to 2021 and 2022 drought conditions. They named State Water Resources Control Board members and board staff as defendants. Additionally, Stanford Vina brought claims against Charlton Bonham, executive director of the state Department of Fish and Wildlife, over abandoned fish ladders, and against board members for violating the Endangered Species Act.
U.S. District Court Judge Dale Drozd dismissed almost all the claims, in most cases without leave to amend. However, he kept intact the Endangered Species Act claim against water board members and staff while tossing all claims against the Department of Fish and Wildlife.
“Plaintiffs allege that the emergency regulations issued by the board defendants attract salmon and steelhead to dangerous fish screens resulting in their take,” Drozd wrote. “Defendants’ argument that the emergency regulations actually benefit salmon and steelhead does not prevent the court from easily drawing the reasonable inference that the board defendants’ alleged actions violated the (act).”
The claims dismissed by Drozd include unlawful takings and due process violations.
Tuesday’s ruling wasn’t the first time the judge has dismissed some of the companies’ claims. This past October, Drozd dismissed many of the claims, though he gave the companies a chance to amend their complaint.
The suit stems from water rights the companies hold in the area of Mill and Deer creeks in Tehama County, California. Those rights allow them to divert water for some 11,000 acres of land with orchards, pasture and other uses.
In April 2021 Governor Gavin Newsom declared a drought state of emergency, leading state agencies to take action and protect salmon, steelhead and other fish.
Water department and board representatives met the next month with Stanford Vina and Los Molinos and discussed water conditions and fish passage. The companies say they received “an ultimatum” — provide a proposal that ensures fish passage or face reduced water rights. The proposals the companies offered were rejected.
Receiving a notice of proposed emergency regulations for minimum flows, the companies in September 2021 said they would restrict their water rights, essentially eliminating them. The state water board approved the regulations that month, and the companies said the board failed to hold an evidentiary hearing and that they were denied the chance to cross-examine department and board employees.
“The emergency regulations declared that any diversions from Deer Creek and Mill Creek would be deemed an ‘unreasonable use’ if the diversions by water rights holders — no matter the reason or purpose for the diversions — reduced the flow in those two creeks below a minimum threshold set forth in the emergency regulations,” Drozd wrote.
Filing suit that year, the companies, required to curtail their water diversions starting in October 2021, claimed their water rights had been damaged.
They also claimed that Bonham, the state Fish and Wildlife director, violated the Endangered Species Act by improperly maintaining fish ladders and screens. The board members violated that act because its emergency regulations and curtailment orders brought salmon and steelhead into harmful conditions including the badly maintained ladders and screens, they said.
The parties have two weeks to submit a joint status report that includes a summary of the claims and a proposed trial date. A status conference is set for July 2.
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