Chang, Kyle K.

English

University of Denver

Water Law Review Volume 6 Issue 2 Article 33 1-1-2003 N. Kern Water Storage Dist. v. Kern Delta Water Dist., F033370, 2003 Cal. App. Unpub. LEXIS 1130 (Cal. Ct. App. Jan. 31, 2003) Kyle K. Chang Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Kyle K. Chang, Court Report, N. Kern Water Storage Dist. v. Kern Delta Water Dist., F033370, 2003 Cal. App. Unpub. LEXIS 1130 (Cal. Ct. App. Jan. 31, 2003), 6 U. Denv. Water L. Rev. 612 (2003). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAW REVIEWN. Kern Water Storage Dist. v. Kern Delta Water Dist., F033370, 2003Cal. App. Unpub. LEXIS 1130 (Cal. Ct. App. Jan. 31, 2003) (holdingthere is no uniform rule regarding the use or nonuse of waterapplicable to all cases, and therefore the question of whether a holderof water rights forfeited those rights is one of fact, based uponmeasurements taken during a specific period of time and aconsideration of all other relevant factors disclosed by the evidence).North Kern Water Storage District ("North Kern") filed an actionagainst Kern Delta Water District ("Kern Delta") in the Superior Courtof Tulare County. North Kern alleged that Kern Delta forfeited aportion of its rights to Kern River water, and that those rights passed toNorth Kern. Kern Delta filed a cross-complaint seeking a declarationthat it lost none of its rights to Kern River water. In its cross-complaint, Kern Delta named North Kern and the City of Bakersfield("Bakersfield") as cross-defendants. Bakersfield filed a cross-complaintseeking a determination that North Kern and Kern Delta bothforfeited a portion of their Kern River water rights.After a bench trial, the court held Kern Delta forfeited asubstantial portion of its historical Kern River water rights by nonuse.It also held that the forfeited water reverted to unappropriated status,and was therefore subject to jurisdiction of the State Water ResourcesControl Board ("SWRCB"). It rejected all other claims, and the partiesboth appealed to the Court of Appeal of California, Fifth AppellateDistrict. In its appeal, North Kern argued the trial court erred inholding the water Kern Delta forfeited reverted to unappropriatedstatus, while Kern Delta argued the trial court erred in holding KernDelta forfeited its water rights by nonuse.The Kern River is a natural waterway originating in the SierraNevada mountain range and draining into the San Joaquin Valley afew miles northeast of Bakersfield. Since the early 1860s, a series ofcanals diverted Kern River water for agricultural use. Current KernRiver water rights date back to the 1860s. Kern Island Irrigation andCanal Company ("Kern Island") filed a notice of appropriation in1870. Under the Miller-Haggin Agreement ("MHA"), Kern Island hada first priority right to three hundred cubic feet per second ("cfs") ofKern River water daily. The remaining water rights holders couldapportion Kern River water only after Kern Island satisfied its needs. Afew years after MHA execution, insufficient availability of Kern Riverwater caused a dispute among upstream users ("First Point Users"),who sought an injunction against Kern Island's diversions. In theensuing litigation in 1901, Judge Lucien Shaw issued a decree ("ShawDecree") that "reaffirmed the MHA, set a maximum flow available fordiversion an appropriation by each First Point User, and established anorder of priority for diversions among them, including Kern Island."In addition to listing the specific quantity of water entitled to eachright holder, the Shaw Decree awarded Kern Island an additional fifty-six cfs.Volume 6COURT REPORTSSubsequently, Kern Delta administered Kern Island'sappropriations. Per the MHA and the Shaw Decree, Kern Delta, whichheld Kern Island's entitlement, had a first priority right to Kern Riverwater. The amount of Kern River water available to all other waterrights holders depended on Kern Delta's usage.In 1964, the SWRCB declared the waters of the Kern River fullyappropriated. Therefore, the SWRCB refused to consider applicationsfor appropriative rights to Kern River waters, unless a study showingavailable unappropriated waters accompanied the application.Anticipating the trial court would revert water forfeited by Kern Deltato unappropriated status, the parties petitioned the SWRCB "for theappropriation of any such forfeited water." The SWRCB postponedruling on these petitions until completion of litigation.Kern Delta appealed the trial court's finding that it forfeited itsappropriative rights. The appellate court held that use of waterdetermined water rights. No one could hold water rights in perpetuitywithout putting the water to beneficial use. The appellate court foundno language in either the MHA or the Shaw Decree that made KernDelta's right to three hundred cfs daily inviolate, thereby precludingclaims by North Kern and Bakersfield. Even if such language existed,it would violate public policy, as water is too precious a commodity towaste, and effectively voided both the MHA and the Shaw Decree.Kern Delta argued the trial court incorrectly rejected its lachesdefense; specifically that North Kern and Bakersfield filed theirforfeiture actions after unreasonably waiting "more than one hundredyears after Kern Delta commenced" releasing surplus Kern River water.The appellate court held that North Kern and Bakersfield did not haveclaims prior to 1976, as water use by junior appropriators waspermissive and contingent upon surplus released by Kern Delta. KernDelta's water usage did not threaten North Kern or Bakersfield "until1976, at the earliest, when Kern Delta sought to increase its own usebeyond historical amounts." Thus, the court found that North Kern'sand Bakersfield's claims originated approximately thirty years prior tolitigation.Kern Delta also argued that releasing its own unused water tojunior appropriators constituted a beneficial use that precludedforfeiture. With respect to this claim, the appellate court held that theterms of the MHA and the Shaw Decree merely acknowledged thepractice of releasing water as customary among the parties. Thecustom itself did not establish independent rights or duties.Furthermore, because the doctrine of beneficial use required therelease of excess water to junior appropriators, Kern River water usersretained only enough water to meet their own needs, and no more. Assuch, Kern Delta's practice of releasing its own unused water wasrequired pursuant to the beneficial use doctrine, and therefore wasnot a "beneficial use."The appellate court disagreed with the trial court in two respects.First, the trial court failed to consider the statutorily imposed five-yearperiod for measuring statutory forfeiture. The appellate court heldIssue 2WATER LA W REVIEWthat due process required the trial court to identify a specific five-yearperiod over which to measure whether forfeiture actually occurred.Second, the appellate court held that the trial court incorrectlypremised its holding upon Kern Delta's use of water rather than itsnonuse. Because water rights were contingent upon beneficial usageof the water, an assessment of nonuse rather than use shoulddetermine forfeiture. The appellate court held that the measurementneeded to include the quantity of water not used over the statutorilyimposed period of time because both time and quantity help governthe "law of the river." The appellate court declared that becausemeasuring water usage for irrigation purposes "involves factors notsubject to precise human control," there was not a uniform rule withrespect to use or nonuse applicable to all cases. The facts of theindividual case determine whether a water right holder forfeited thoserights through nonuse.As such, the appellate court reversed the judgment of the trialcourt, and remanded for retrial the issue of whether Kern Deltaforfeited any of its MHA entitlement by nonuse, based upon ameasurement taken over a specific time period imposed by statute.The appellate court also remanded for retrial the parties' other issuesnot specifically resolved on appeal, waived, or abandoned.Kyle K ChangLong v. Great Spring Waters of Am., Inc., No. E030817, 2002 Cal.App. Unpub. LEXIS 11584 (Cal. Ct. App. Dec. 16, 2002) (holdingviolating the terms of a United States Forest Service special use permitis "unlawful" conduct under California's unfair competition law; andtaxpayer suits against state officials under Civil Procedure Code section526(a) are not permissible means of compelling discretionary actionsof the State Water Resources Control Board).Under a United States Forest Service special use permit, GreatSpring Waters of America, Inc. ("Great Spring") extracted water fromwithin the San Bernardino National Forest for public sale. In February2000, Russell Long ("Long") filed suit in the Superior Court of SanBernardino County, alleging Great Spring violated California's unfaircompetition law (Section 17200 of the Business and Professions Code).Long also sued the State Water Resources Control Board ("SWRCB"),claiming it breached its duty to prevent waste or unreasonable use ofwater by allowing Great Spring's extraction. The trial court sustained,without leave to amend, Great Spring's and the SWRCB's demurrers toall of Long's seven claims for relief. Long appealed to the CaliforniaCourt of Appeal, Fourth District, Division Two, seeking to overturndemurrers to one claim for relief against Great Spring and two claimsagainst the SWCRB.Volume 6

N. Kern Water Storage Dist. v. Kern Delta Water Dist., F033370, 2003 Cal. App. Unpub. LEXIS 1130 (Cal. Ct. App. Jan. 31, 2003)

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N. Kern Water Storage Dist. v. Kern Delta Water Dist., F033370, 2003 Cal. App. Unpub. LEXIS 1130 (Cal. Ct. App. Jan. 31, 2003)

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