Editorial

OPINION page: City of Ventura in hot water with attorney general over water lawsuit

2 5 21 OP REAL Water

OVN Editorial:

Ventura in hot water

with attorney general

California Attorney General Xavier Becerra has leaped into the water lawsuit adjudication pool with a resounding splash, ripping the proposed "Physical Solution" (a step, not an end, in the water adjudication process) with a letter vigorously admonishing the city of Ventura, on behalf of Fish and Wildlife and the State Water Resources Control Board.

The state Department of Justice outlines the missteps of the Ventura City Council on numerous procedural issues, including the rush to judgement ahead of the Watershed Criteria Report that is to be completed this year and its modeling work in 2022; lack of transparency regarding five phantom experts; neglect to serve all parties in the case; the assumption that surface water rights can be included when they have yet to be ruled upon by the judge; a deficiency of findings to support Ventura’s claims of rights; a failure to meet requirements relevant to California statutes; the unmet burden-of-proof threshold to go forward with the case; a lack of consensus by greater than 50% of the parties involved; and in point five — blatant accountability carve-outs for the city of Ventura that create a Physical Solution document that applies to everyone but the city of Ventura; and, finally, pushing a court calendar that is two years ahead of itself.

Ventura City Council bamboozled by Walnut Creek lawyers

Ventura City Council was scared. Facing a dubious lawsuit by Santa Barbara Channelkeeper— though its suit didn't pass the reasonability test — the council needed a lifeline. Rather than reaching out for a buoy, like a drowning victim, Ventura councilmembers desperately grabbed onto their Ojai neighbor, plunging us both into the abyss. 

To the rescue, the Walnut Creek attorneys of Best Best and Krieger took control. They urged Ventura councilmembers to pass on forcing Channelkeeper’s burden to prove its case, or taking a few lumps for over-pumping Ventura River during the low-flow months. 

BBK even sweetened the deal with the promise of avoiding impending state-imposed flow restrictions, persuading the Ventura City Council to sue every person and pumper (14,400 of us) in the Ojai Valley and Ventura. We looked easy — a small, disconnected rural community with multiple small water fiefdoms and a few larger users. 

The Walnut Creek lawyers of Best Best and Krieger saw the Ventura ratepayers’ pockets opened and saw Ojai as no threat. The gullible Ventura City Council even believed the state of California would “welcome us with open arms." We’ve heard that argument before, and with a similar result. But that was before the council coughed up taxpayer money for 40 shiny new Ferraris for BBK attorneys.

Barely into the water adjudication war, Ventura’s water users are just now hearing about new maximum water rate hikes, perhaps not knowing that this is only the beginning. The Physical Solution creates a five-member unelected board that sets assessments and rolls out parcel taxes to pay for it (page 59 of the Physical Solution). 

This decades-long extortion could cost everyone as much as a billion dollars, without creating a drop of water — no desalination or water reclamation, no state water pipeline hookup, no Three Sisters Plan implemented. How much financial and emotional strain will Ventura constituents take before they start removing their City Council members causing the bleeding?

(Want a crystal ball? See the Maricopa County's Adjudication website — an active case since 1974:

http://www.superiorcourt.maricopa.gov/SuperiorCourt/GeneralStreamAdjudication/faq.asp.)

When will the people tell Ventura City councilmembers to stop? The Ventura City Council MUST drop the cross-complaint. Cut the losses with the bottom feeders. Work together to face Santa Barbara Channelkeeper, conserve, seek other water sources and make some consumption concessions.

Now that four of those Ventura City Council members who voted for this lawsuit have gone, and the attorney general has called out the lawsuit as a mistake, this is the time to stop this onerous, expensive burden on thousands of residents, already struggling in a pandemic. The Ventura City Council must halt this lawsuit.

Ojai Valley and Ventura residents must contact Ventura City councilmembers to demand they right this wrong.

 

Email the Ventura councilmembers today to let them know how you feel about them suing thousands of Ojai Valley and Ventura residents at:

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Letter from California Attorney General Xavier Becerra to lawyers involved in the Ventura water lawsuit, dated Jan. 26,2021:

To: Christopher M. Pisano Best: Best & Krieger LLP

Shawn Hagerty: Best, Best & Krieger LLP

Scott Slater: Brownstein Hyatt Farber Schreck LLP 

Neal P. Maguire: Ferguson Case Orr Patterson LLP 

Jeanne Zolezzi: Herum Crabtree Suntag

From: Marc N. Melnick and Noah Golden-Krasner, deputy attorneys general for California Attorney General Xavier Becerra

Re: Santa Barbara Channelkeeper v. State Water Resources Control Board

Superior Court of California, County of Los Angeles, Case No. 19STCP01176

 

Dear Counsel:

On behalf of the California Department of Fish and Wildlife (the “Department”) and the State Water Resources Control Board (the “State Water Board”), we are writing to ask that your clients reconsider requesting, in the upcoming case management conference statement to be filed on February 2, 2021, that the Court set a schedule for holding an evidentiary hearing to decide whether the Court should enter your proposed physical solution as a judgment in this action. We realize that you just received our settlement letter of January 21, 2021, laying out our concerns with the stipulated physical solution and judgment you proposed in September 2020, but we hope that we will be able to discuss those concerns and work towards a negotiated solution acceptable to all parties and stakeholders. We believe continuing dialogue on a settlement negotiation path rather than activating the litigation path is in all parties' best interest.

In addition, as we discussed briefly by phone today, your proposed schedule raises numerous procedural issues that we should discuss before any scheduling request is made.

First, as you know, the Department and the State Water Board have been engaged for several years in scientific investigations, respectively, of the flow needs of species in this watershed and the interconnectedness of groundwater and surface water in this watershed. From the beginning of this case being assigned to Judge Highberger, those two investigations have been brought to the Court's attention in numerous joint filings with the Court, and the parties have all understood that these investigations are essential to a complete understanding of flow requirements for this watershed and developing an appropriate and defensible physical solution. As you know, the Department has completed some of its work, including the Watershed Criteria Report; and has tentatively scheduled a public meeting for February 26, 2021, just a few weeks from now, to present its draft flow recommendations for the lower Ventura River and two technical reports. The Department's remaining work is scheduled to be finished this year.  A draft of the State Board's modeling work is scheduled to be released later this year, and the State Board is scheduled to finish its modeling next year.

The Department and State Board cannot support a rushed judgment in this case that would come before this essential work has been completed, reviewed by the parties, and discussed. We urge you to wait until that important work is complete, and can be digested by all concerned, before the stay is lifted and we start litigating anything in this case.

Second, the City has not completed its service of all named parties in this action. That is clear from the City's December 30, 2020 ex parte application for extension of time to serve pleading and order extending time to serve, which explained that the City has over four hundred cross-defendants left to serve and successfully requested that the time to serve them be extended to April 1, 2021. While it may be likely that none of those to-be-served parties will have a material effect on the nature of this litigation,  we cannot be certain of that at this time.  The  Court should not start moving down the path towards entering your proposed physical solution as a judgment as you have proposed without first ensuring all those parties have been served, and are able to express their views on this process. To move forward as you have proposed risks depriving those parties of due process. Judge Highberger himself has been particularly attentive to those concerns during our various case management conferences.

Third, as you know, this case is proceeding under the streamlined comprehensive groundwater adjudication statutes (Code of Civil Procedure sections 830 to 852). But the case as pled by the City comprises much more than that. It also includes claims seeking to adjudicate surface water rights, and the proposed physical solution proposes to resolve those surface water rights. The streamlined comprehensive groundwater adjudication statutes provide, in part: "If the Court finds that including an interconnected surface water body . . . is necessary for the fair and effective determination of the groundwater rights in a basin, the court may require the joinder of persons who claim rights to divert and use water from the surface water body . . . in a comprehensive adjudication conducted pursuant to this chapter." (Code Civ. Proc., § 833, subd. (c), emphasis added.) But no one has asked the Court to make such a finding. That finding must be made before the Court asserts jurisdiction over the surface water rights holders in this case, and should be made before the Court sets a schedule on resolving your proposed physical solution.

Fourth, the groundwater adjudication statutes address the Court's adoption of a proposed stipulated judgment such as yours. (See Code Civ. Proc.,§ 850, subd. (b).) Such a judgment must meet the requirements for any judgment under the streamlined comprehensive groundwater adjudication statutes, including consistency with section 2 of article X of the California Constitution (whlch requires reasonable use of water). (Code Civ. Proc., § 850.) But by the explicit terms of the statutes, a stipulated judgment may only be proposed if it "is supported by more than 50 percent of all parties who are groundwater extractors in the basin or use the basin for groundwater storage and is supported by groundwater extractors responsible for at least 75 percent of the groundwater extracted in the basin during the five calendar years before the filing of the complaint." (Id,§ 850, subd. (b).) While the Court would have to decide how to apply that standard here, where there are four groundwater basins and surface water as well, we do not believe you can meet that standard for even one of the four groundwater basins at issue in this adjudication. You certainly have not explained that to us, or even addressed this issue as far as we know. Since these percentage thresholds in Code of Civil Procedure section 850 are part of the prima facie case that you need to make, we believe you should make such a showing before starting down the process of seeking the Court's consideration of any proposed physical solution.

Fifth, without getting into the substance of your proposal, we have concerns about the uncertainty inherent in your proposed physical solution.  We raised some of these issues with you in our recent settlement letter, dated January 21, 2021. As some examples: (1) the term "good condition" — the stated goal of the proposed physical solution — is vaguely defined in the proposed physical solution and there are few constraints on how the management plan would define that term; (2) there are no standards for how much gravel enhancement, boulder and large woody debris augmentation, Arundo removal, and predator removal will occur; (3) the Foster Park flow protocols contain an exception to minimum instream flow protocols for situations where there exists "the inability of the City to obtain sufficient usable replacement water from Casitas or other sources to serve its customers," which would seem to leave implementation of those flow protocols to depend largely on the circumstances and/or the discretion of the City ; and (4) after the first ten year period, there appears to be complete discretion by the management committee as to the components of the management plan. Given this uncertainty, it is difficult to understand how the Court would be able to find — as it must (Code Civ. Proc., § 850 , subd. (a)(l))-that your proposed physical solution  will be consistent  with the reasonable  use standard of section 2 of article X of the California Constitution. There is simply no assurance that your proposed physical solution will meet this standard based on information provided to date, particularly since it lacks minimum instream flow requirements for most of the watershed and vaguely defines the desired ecological outcome and how progress towards this outcome will be evaluated, among other concerns raised in our January 21, 2021 settlement letter. Thus, it is hard to see how you can even make a prima facie case for entering this proposed physical solution as a judgment.

Sixth, even if you could resolve the preceding five issues, your schedule still needs to reflect a reasonable schedule while the parties are still managing challenges associated with the COVID-19 pandemic. Given that we have not yet reached consensus on critical aspects of any discovery before an evidentiary hearing on any proposed physical solution occurs. To date, you have not yet disclosed your comprehensive expert report, and you apparently have at least five experts for this case. In addition, there is the added complication that we do not know how the thousands of cross-defendants will engage with the evidentiary hearing process. While we reiterate that no dates should be set at this time, if any dates are to be set, we believe that a schedule consistent with our August 3, 2020 proposal, leading to an evidentiary hearing in the November 2022 to January 2023 timeframe, is a more appropriate starting point. That would still give us three to six months to negotiate before we started with motion practice and discovery. Those few months might not be enough time to reach a settlement, but we could at least try to make progress.

Please consider these concerns, and let us know your thoughts. We would like to hear back from you within the next few days, and in advance of February 2, 2021, when our case management conference reports are due. If you wish to discuss them, please let us know.