Siskiyou County Wins Lawsuit

Press Release from Siskiyou County Farm Bureau

Download a PDF copy of the decision.

In an important decision that protects private water rights while maintaining environmental protections, a Siskiyou County Superior Court judge ruled that a state agency had overstepped its authority in trying to regulate farmers’ water use.

The ruling by Judge Karen L. Dixon determined that the California Department of Fish and Game had exceeded its authority by requiring farmers and ranchers to obtain a permit from DFG before they irrigate their crops. The Siskiyou County Farm Bureau filed suit against DFG last year, on behalf of members who farm along the Scott and Shasta rivers.

“This ruling establishes an important, statewide precedent,” Siskiyou County Farm Bureau President Jeff Fowle said. “There is no doubt that if DFG had been able to expand its authority here, it would have tried to regulate water rights elsewhere in the state. This decision reaffirms that water rights are administered by the courts and State Water Resources Control Board. Now, we can turn our attention to finding collaborative ways to improve conditions for fish while maintaining the sustainability of our farms and ranches.”

The case centered on Section 1602 of the Fish and Game Code, which requires individuals to notify DFG and potentially obtain a Lake and Streambed Alteration Agreement before conducting certain activities that alter a streambed. Permits have been required under the section for gravel mining, construction of push-up dams and other projects that physically alter streambeds—but DFG began notifying landowners along the Scott and Shasta that they would need to obtain permits simply to open an existing headgate or activate an existing pump in order to irrigate their crops.

In its lawsuit, the county Farm Bureau said the requirement would have been a “fundamental change” in the application of the code that would have jeopardized both water rights and property rights for farmers and ranchers.

“We understand that DFG wants to protect salmon in the rivers, but it has many other ways to do that already,” said Rex Houghton, the immediate past president of the county Farm Bureau. “Farmers will continue to work collaboratively with the agency to improve conditions for fish. The outcome does not change the notification requirement for activity that physically alters a streambed, but it is important to establish that DFG can’t require a permit for farmers simply to exercise their water rights.”

Because of the statewide implications of the case, the Siskiyou County Farm Bureau received support for the lawsuit from the California Farm Bureau Federation and county Farm Bureaus throughout the state. Attorney Darrin Mercier of Yreka argued the case on behalf of the county Farm Bureau.

The Siskiyou County Farm Bureau is a voluntary membership organization that works to protect and promote agricultural interests throughout Siskiyou County and to protect and improve the availability of food and fiber through responsible stewardship of natural resources.

Good News

Potentially Good News, As reported by Dave McCracken [and corrected by PLP]:

You guys will be interested to know that the dredging moratorium is now being challenged in Plumas County Superior Court. There may be a fast track possibility of overturning the existing moratoriums in this case.

This case began with a criminal complaint against Brandon Renehart for possessing and using a suction dredge without a permit in violation of Section 5653 of the Fish & Game Code.

In response,[Public Lands for the People, Inc and] our attorney, James Buchal (representing Brandon in this case), challenged the criminal complaint on its face (called a “Demurrer” in California law) based upon federal supremacy laws. James makes a compeling legal arguement that controlling case law in America prevents any State from enacting a prohibition against mining on the public lands — which is clearly what the State of California has done through a moratorium which prevents permits from being issued until an impossible set of circumstances have been met.

In turn, the State has filed a vigerous response alleging that the current moratorium is just temporary; something we all know is blatantly false. But it is clear the State is fighting very hard to overcome the Demurrer. James’ Reply to the State sets the record straight.

So now we will find out if the judge will dismiss the case or it will proceed to trial. My guess is that if the case is not dismissed here, since I believe there are no factual issues in dispute, and the resolution will be a matter of interpreting the law, this case could be rather quickly resolved in Summary Judgment. That could happen before the coming dredging season.

The above linked arguments make for interesting reading, because to a large extent, they mirror some of the main arguments that we [and PLP] are making in San Bernardino, a consolidation of civil cases [brought about by PLP,] that will perhaps take quite a bit longer to resolve.

In the event that the judge dismisses Brandon’s case based upon the argument that California’s present scheme of denying suction dredge permits to anyone is preempted by the supremacy clause, it would seem that suction dredging will immediately resume in California perhaps without any permits whatsoever. That would certainly be a reversal!