by Monserrat Solis, SJV Water
The Fifth District Court of Appeal agreed to hear one of two challenges by the state in a Kings County Superior Court case that paused groundwater sanctions set to be imposed on area farmers.
The pause on groundwater sanctions is still in effect but further court proceedings in the case are now on hold until the Fifth District reviews one of the state’s appeals.
“We aren’t surprised by the appeals,” Dusty Ference, executive director of the Kings County Farm Bureau. The Farm Bureau sued the Water Resources Control Board over groundwater measures imposed by the state that would require farmers to meter and register wells at $300 each and pay $20-per-acre-foot pumped.
“I guess in the water world, it’s becoming more common to see the state board react that way, so we weren’t completely surprised by that.”
Groundwater sanctions were imposed after the Tulare Lake subbasin, which covers most of Kings County, was placed on probation by the Water Board in April for not being able to come up with an adequate groundwater plan per the Sustainable Groundwater Management Act.
The Farm Bureau sued the Water Board over those sanctions.
Kings County Judge Kathy Ciuffini agreed the state had overstepped its authority and issued a preliminary injunction against imposition of the sanctions on Sept. 12.
The Water Board appealed that injunction on Sept. 30. That appeal is still in process at the Fifth District and no hearing dates or schedule for briefs have been issued.
The Water Board then filed a second appeal on Nov. 7, challenging Ciuffini’s rejection of an earlier demurrer (request for dismissal) by the state that had sought to nullify a number of causes of action brought by the Farm Bureau.
Such appeals aren’t often granted but on Nov. 21, the Fifth District agreed to review the Nov. 7 demurrer appeal and put all further court proceedings in the main case on hold.
“Rare things are happening at the Court of Appeal,” said Valerie Kincaid, attorney for the Farm Bureau, during the Dec. 10 Mid-Kaweah Groundwater Sustainability Agency board meeting where she also serves as counsel. Mid-Kaweah GSA is in a neighboring subbasin, but interest in the case is high throughout the San Joaquin Valley.
Demurrer appeals are typically denied 98% to 99% of the time, Kincaid said.
“Interestingly, this Fifth District Court of Appeal has taken this demurrer up, which means that this case is in the 1% to 2% exception that the court would like to hear more about that demurrer,” Kincaid told the Mid-Kaweah GSA board.
Opposition papers to the demurrer appeal are due Dec. 23. The Fifth District will then decide whether the state’s original demurrer should have been granted, Kincaid said.
“This isn’t slowing us down or changing our minds,” Ference said of the Fifth District’s actions. “We’re fully committed to this, and we’re full steam ahead to see this through.”
For it’s part the Water Board was pleased with the Fifth District’s actions: “The appellate court’s action is a positive development for the Board in its efforts to ensure that litigation does not improperly interfere with its legislative directive to implement the Sustainable Groundwater Management Act and help safeguard sustainable groundwater management across the state,” wrote a spokesman in an email.
The Tulare Lake subbasin was the first of six of San Joaquin Valley subbasins to come under Water Board scrutiny.
The Tule subbasin, which covers the southern half of Tulare County’s flatlands, was put on probation Sept. 17.
Water Board staff have recommended placing the Kern subbasin on probation, with its hearing scheduled for Feb. 20, 2025. The Delta-Mendota and Chowchilla subbasins are expected to have hearings later in 2025.
The Kaweah subbasin’s hearing was canceled by the Water Board in order for the board’s staff to review a new groundwater plan submitted in June.
