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Agreement On Limiting Water
Use Takes Blow
Court Says Farmers Have Priority Rights

By David Kravets
The San Diego Union Tribune, August 22, 2000

SAN FRANCISCO -- The state Supreme Court yesterday sided with a group of farmers that challenged an agreement between farmers and cities to limit water use in the parched Mojave River Basin.

In its ruling, which is sure to make it more difficult for California's booming cities to get the water they need to grow, the court upheld a ruling that invalidated part of the carefully negotiated 1993 water pact.

The court said agreements between cities and farmers cannot automatically supersede the state's 150-year-old water policy, which favors landowners with the oldest water rights. In California, the farms were generally there first, and they depend on irrigation to grow crops on 8 million acres of otherwise arid land.

"This preserves the farmers' position at basically the top of the water chain," said Robert E. Dougherty, who represented the seven alfalfa and dairy farmers who refused to join in the Mojave water pact. "Cities do take a back seat."

The court's decision could make it nearly impossible for farmers and municipalities to agree on wide-reaching water-restriction measures during a drought, said Frederick A. Fudacz, a lawyer for the Apple Valley Ranches Water Co. who argued for the cities.

"I think it's going to make it much more difficult to solve these water-right lawsuits," Fudacz said.

The dissident farmers argued that they should be entitled to keep using the amount of water they've enjoyed for decades on and under their land as long as it's not sold or wasted. The high court agreed, saying the pact's restrictions failed to take into account the farmers' legal water rights.

The Mojave River, which flows mostly underground, is the only natural source of water for Barstow and most high desert communities in San Bernardino County. But the water has been pumped out faster than rainfall can replenish it in recent years, causing the water table downstream to plunge.

Water officials in the growing desert communities of Adelanto, Apple Valley, Barstow, Hesperia, Victorville and other outlying areas say the basin might dry up altogether without use restrictions, so they came up with a broad plan.

Litigation between several Mojave-area cities and about 1,000 farmers and other landowners was put on hold. Two years later, in 1993, they reached an accord that required each city and farmer to reduce usage a certain amount in accordance with water availability.

A Superior Court judge signed off on the deal in 1996, saying that allocating water based on legal priorities would be "extremely difficult, if not impossible."

But seven of the farmers objected and kept litigating.

An appellate court reversed the lower court judge and the California Supreme Court agreed with that ruling.

"The impacts for California are enormous," Scott Slater, a Santa Barbara lawyer and water expert. "This case suggests that farmers cannot automatically lose their rights."