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Barstow, City of v. Mojave Water Agency

ELR Citation: 31 ELR 20023
Nos. No. S071728, 5 P. 853/(Cal., 08/21/2000)

The court holds that a trial court erred in resolving water right priorities in an overdrafted basin with a "physical solution" that relies on the equitable apportionment doctrine but does not consider the affected owners' legal rights in the basin. Landowners who had overlying water rights in the Mojave River Basin in California appealed the decision claiming that the physical solution amounted to a taking because it did not recognize their preexisting and paramount legal water rights. The appellate court reversed the trial court's ruling with respect to these landowners.

The court first holds that the appellate court properly reversed the trial court's ruling. No appellate court has endorsed an equitable apportionment solution that disregards overlying owners' existing rights. Although a trial court may use its equitable powers to implement a physical solution, in ordering a physical solution, a court may neither change priorities among the water rights holders nor eliminate vested rights in applying the solution without first considering them in relation to the reasonable use doctrine. Here, the landowners retained their overlying rights by pumping water from the ground underneath their land, and no claim of prescription had been asserted to reduce those retained overlying rights. Moreover, in the event of water supply shortage, overlying users have priority over appropriative users. Thus, by not attempting to determine the priority of rights and by merely allocating pumping rights based on prior production, the trial court erroneously elevated the rights of appropriators to the same status as the rights of the overlying owners.

The court next holds, however, that the appellate court erred in concluding that the trial court abused its discretion in apportioning a smaller amount of water to a water producer, who wanted to stipulate to the physical solution, than was offered to other producers. The water producer recirculated its water, and it seems reasonable to differentiate water producers who recirculate water from others who do not recirculate water but instead put their full gross production amount to use.

[No counsel available at this printing.]

With George, Mosk, Kennard, Baxter, Brown, and Johnson,* JJ., concurring