By Tony Perry
The Los Angeles Times, August 22, 2000
The California Supreme Court on Monday sided with farmers against cities and water districts in a Mojave River Basin case that could have a major effect on water disputes around the state.
Attorneys for the California Farm Bureau and the Imperial Irrigation District, the nation's largest agricultural water district, hailed the decision as a victory for farmers in their fight to keep rapidly growing cities from taking their water without payment.
But some fear the decision is a setback for rational allocation of the state's most precious resource and that it will lead to increased acrimony, cost and litigation.
Because farmers' water rights are older than those of most cities, the bulk of California's water supply goes to support the state's $28-billion-a-year agricultural industry.
As the state faces the major growth and environmental challenges of the 21st century, state and federal officials are attempting to fashion agreements through which farmers relinquish some of their water for municipal uses or to preserve wildlife.
In the background of complex negotiations such as those to save the Sacramento-San Joaquin River Delta--or to shift water from the Imperial Valley to San Diego--has been the question of whether government can force farmers to give up water.
In the Mojave case, the court said government has no such sweeping power even if it is meant to serve the public interest: in this case, to prevent over-drafting of the ground water in the Mojave River basin, a region of 3,600 square miles that includes the cities of Victorville, Hesperia, Apple Valley, Adelanto and Barstow.
Under a 1996 agreement between the city of Barstow and the Mojave Water Agency, dozens of farmers had agreed to a cap on the amount of ground water they could use for free, and also to pay for any water they use over a set amount. The money would go to buy water from the State Water Project to replenish the ground water.
But a half-dozen dairy ranchers and alfalfa farmers refused to sign the agreement because they felt it violated their water rights. The farmers lost at the trial court level but won at an appeals court; that court's decision was unanimously upheld Monday by the state Supreme Court.
"Although it is clear that a trial court may impose a physical solution to achieve a practical allocation of water to competing interests, the solution's general purpose cannot simply ignore the priority rights of the parties asserting them," wrote Justice Ming W. Chin.
Under Monday's decision, the farmers who sued will not be forced to pay for water. Those who signed the agreement and did not sue must still pay if they exceed their annual allocation.
James Markman, a Los Angeles attorney who represented a water district, said he was pleased that the high court did not go even further and invalidate the agreement signed voluntarily by farmers who did not sue.
But Richard Howitt, water expert and agricultural economics professor at UC Davis, called the decision a "setback for a more rational allocation of water. This will make things more expensive and encourage farmers to stand on their rights and demand litigation."
Robert Dougherty, an Ontario attorney representing the farmers who sued, said the decision "upholds farmers' paramount water rights. Cities have to learn they can only take water when there is surplus."
By urban standards, the amount of water involved in the Mojave dispute is minuscule: approximately 10,000 acre-feet. But because of the potential effect on other disputes, the Farm Bureau and the Imperial Irrigation District submitted briefs in support of the farmers.
"This is great," said Farm Bureau attorney Nancy McDonough. "What this means is that first-in-time, first-in-right will continue to be the controlling tenet of all water allocation discussions in California."