By Lisa McEwen, SJV Water
The ongoing case against a Tulare County groundwater agency for allegedly not paying its fair share to fix the sinking Friant-Kern Canal will continue, according to a recent ruling.
A trial date is set for Dec. 22 in Tulare County Superior Court.
A judge recently shut down an attempt by the Eastern Tule Groundwater Sustainability Agency (GSA) to dismiss the lawsuit by the Friant Water Authority, which alleges Eastern Tule breached a 2021 agreement to pay up to $200 million toward fixing the canal.
But Tulare County Superior Court Judge Brett Hillman’s Sept. 23 ruling also indicated that, should Friant win the case, it could be a hollow victory.
In fact, Friant may have to go after individual landowners for the money it says Eastern Tule reneged on, according to some interpretations of Hillman’s ruling.
It “indicates that even if FWA could prove its disputed claims at trial, FWA might not be entitled to any of the payments it wants from ETGSA,” wrote Eastern Tule attorney Gina Nicholls in a statement.
In a phone interview, she added that, “The potential result here is that we litigate this thing through trial and beyond. Whether Friant wins or loses, it doesn’t get anything.”
She also said it is unclear if the 2021 agreement at the core of the lawsuit protects individual landowners.
“A fair read of the court’s (Sept. 23) ruling is that the ETGSA settlement agreement won’t protect landowners going forward,” she said. “I’m not sure if it ever really did.”
Attorney Alex Peltzer wondered the same thing.
He said the Sept. 23 ruling underscores a concern he’s had all along, which is the uncertainty over whether Friant will be able to collect the $200 million from Eastern Tule even if Friant proves the GSA breached the 2021 agreement.
He said the most likely remedy in the case, if a breach is proved, is that Friant could then choose to sue individual landowners, pumpers or water districts that served on Eastern Tule’s board and approved policies that facilitated over pumping and underpaying for damage to the canal.
“The hopeful outcome is that districts will come up with a replacement to this (2021) agreement,” Peltzer said.
Peltzer represents Tea Pot Dome Irrigation District, which along with Vandalia Water District, paid Friant for $1.4 million of their share to fix the canal.
In August, Hillman heard arguments on Eastern Tule’s request to dismiss the case, which centered on Eastern Tule’s contention that the 2021 settlement agreement to pay Friant $200 million toward canal repairs was illegal and unenforceable.
It was the latest turn of events in the suit, which began in 2024 when Friant and Arvin-Edison sued Eastern Tule for breach of contract, claiming the GSA was not collecting pumping fees from landowners meant to dissuade excessive pumping as outlined in the 2021 agreement between the two entities.
Instead, landowners continued to pump so much that land beneath the canal continued sinking.
Because of what Friant says were overly permissive groundwater credits, pumping fees meant to raise $200 million to help with the $325 million repair costs never materialized. Instead, Friant only received $23 million in the four years since the 2021 agreement was signed with Eastern Tule.
Eastern Tule has said the 2021 agreement didn’t obligate it to pay Friant $200 million.
As the lawsuit against Eastern Tule has progressed, the GSA has fractured, with water districts leaving to form their own groundwater agencies.
Friant is going after three of those districts, which had board seats on Eastern Tule, in an effort to recoup the shortfall. That action against Terra Bella, Saucelito and Porterville irrigation districts is also tied up in court.
Some are questioning whether the time and effort Friant has spent to get a court order for Eastern Tule to pay its share to fix the canal would have been better spent going after individual pumpers directly, or seeking the intervention of the state Water Resources Control Board.
As for landowners who farm near the canal, grower and Tea Pot Dome board member Matt Leider said most are not concerned or aware of the possibility that Friant could sue them individually.
“Most growers have been simply trying to abide by the rules of the (Eastern Tule) GSA, to the extent that they could be understood at all. But for those who gamed the system, they should be worried, whether it’s in Superior Court, or the court of public opinion,” he said.
He referred to how groundwater credits under Eastern Tule’s policies were moved, traded and sold.
“For those landowners who engaged in the absolutely reckless, egregious, and greedy behavior of manipulating the transitional pumping program for their own personal gain, yeah, I’d be worried,” Leider said. “Perhaps if they had a fraction of the interest in protecting the Friant-Kern Canal, as they do for lining their own pockets, we wouldn’t be in the mess we’re in today.”
