A READER WRITES: Abatti and friends knock on the U.S. Supreme Court door

The dispute between Imperial Valley farmer Mike Abatti and the Imperial Irrigation District over water rights entered a new chapter last month. Mr. Abatti filed a petition for certiorari to the U.S. Supreme Court, asking the court to review last year’s California appellate court’s ruling in the IID’s favor.

Our local Imperial County Farm Bureau and the California Farm Bureau, along with some individual valley farmers, then filed amicus briefs at the U.S. Supreme Court supporting Mr. Abatti’s petition for review.

Mr. Abatti and friends claim that last year’s California appellate court ruling has abrogated — cancelled — farmers’ long-held water rights.

It’s interesting, however, that the California appellate court used nearly the same words in its opinion that Mr. Abatti used to support his side. Mr. Abatti’s attorneys quote this sentence from Bryant v. Yellen (1980):

“As beneficiaries of the trust, the landowners have a legally enforceable right (emphasis added), appurtenant to their lands, to continued [water] service by the District.”

Here is what Justice Cynthia G. Aaron wrote in a unanimous, 106-page opinion,

“We conclude that the farmers within the District possess an equitable and beneficial interest in the District’s water rights, which is appurtenant to their lands, and that this interest consists of a right to water service ….”

Does that sound like the court abrogated farmers’ water rights? No, because it didn’t.

The appellate court went on to clarify that farmers do not possess an exclusive right to water service:

“[T]he District retains discretion to modify service consistent with its duties to manage and distribute water equitably for all categories of users served by the District.”

Now, just as before the appellate court decision, farmers still have a right to get water. But farmers are not the sole beneficiaries of the valley’s water rights. So the real, still unanswered question is this: How much water do farmers have rights to?

At the California appellate court, Justice Patricia Benke raised that key issue to Abatti attorney Cheryl Orr. Justice Benke remarked that all of Ms. Orr’s arguments seemed to imply that farmers have a right to a certain quantity of water. Ms. Orr said no, but they do have a right to a “reasonable amount of water to irrigate their crops.”

In both of the legal briefs submitted to the Supreme Court, Mr. Abatti and the Farm Bureaus imply that having a right to water service means getting all they water they want. Does this make sense?

Let’s take a quick look at a simple property right. If you dig a hole in your backyard and find a gold nugget, it’s yours. You can do whatever you want with it, including sell it. Because it was on your property, you have a right to it.

The water that IV farmers receive arrives via a multi-billion-dollar network of dams and water works. The farmers paid for none of it. The federal government built that network and runs it using public funds. Does it make sense that farmers can take as much water as they want from that publicly owned infrastructure and then dispose of it any way they want? Like the lump of gold?

No, it doesn’t make sense.

The IID agrees that farmers have a right to water. But so do all the water users in the Valley. That said, the question that is always between the lines of the lawyers’ arguments is this: If the farmers have a right to water service, how much water do they have a right to? If other water users — like cities, feedlots, geothermal plants, fish farms, parks, and nature preserves — have a right to water, how much water do they have a right to?

The appellate court correctly said that under California state law, the IID board has the authority to decide these things. But IID does not have, as Cheryl Orr rightly claimed, “unfettered authority” to allocate water. They cannot be, to use a phrase in California water law, “arbitrary and capricious.”

We’ll find out soon enough if the US Supreme Court agrees to let Mr. Abatti and friends in its doors. I’m guessing it won’t. Meanwhile, Mr. Abatti and his Farm Bureau friends will probably be saving their money for the next legal challenge as the IID struggles to answer the question that each water user might pose: How much water do I have a right to?

 

Brian McNeece is a retired IVC instructor and administrator. He’s a member of the International Boundary & Water Commission Colorado River Citizens Forum and a longtime observer of local history. He can be reached at bmcneece@gmail.com

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