California Fish and Wildlife director still on the hook in water rights suit | Courthouse News Service
Thursday, November 30, 2023
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California Fish and Wildlife director still on the hook in water rights suit

Three claims remain against Charlton Bonham, executive director of the U.S. Department of Fish and Wildlife, and certain others can be amended.

SACRAMENTO, Calif. (CN) — A federal judge handed a mixed-bag ruling to three North State companies seeking to stop what they deemed an improper taking of their water rights by the California Department of Fish and Wildlife and State Water Resources Control Board.

U.S. District Court Judge Dale Drozd granted most of what the department and board members had asked for, dismissing many of the claims filed against them by the Los Molinos Mutual Water Company, Stanford Vina Ranch Irrigation Company and Peyton Pacific Properties LLC, in an order released on Friday.

However, three claims remain against Charlton Bonham, executive director of the Department of Fish and Wildlife, and the three companies that filed the 2021 suit can amend some of their other claims — but not claims against the department itself, which has been removed from the suit.

The suit challenges emergency regulations and water curtailment orders, which themselves were a response to significant drought conditions in 2021. Additionally, plaintiff Stanford Vina in the suit claimed Bonham and Fish and Wildlife abandoned fish ladders and screens meant to protect threatened Central Valley Spring Run Chinook salmon and California Central Valley steelhead — a violation of the Endangered Species Act.

The companies and their shareholders have land in the Mill Creek and Deer Creek areas of Tehama County, along with water rights that let them divert water for agricultural use.

Governor Gavin Newsom in 2021 issued two drought-related proclamations, around the time Fish and Wildlife, the state water board and the National Marine Fisheries Service asked Stanford Vina and Los Molinos to talk about water conditions and fish passage, the companies said in their suit.

It was at this meeting, the companies said, that they were given an ultimatum: Create a plan to ensure fish passage or face emergency regulations that would stifle the companies’ water rights. The plans Stanford Vina and Los Molinos offered were rejected, however, as the state and federal agencies said they had no authority to approve the measures the companies proposed.

Los Molinos and Stanford Vina then worked with Fish and Wildlife and the Fisheries Service, to voluntarily implement pulse flows while reducing impacts to agricultural use.

But in September 2021 the companies say a notice of proposed emergency rule-making was issued, which would create minimum in-stream flows to protect fish — a move they claimed essentially eliminated their water rights. The change amounted to a "taking" of their rights, the companies wrote.

No evidentiary hearing was held at a board meeting about the emergency rules, despite the companies' request for one. The rule was adopted and became effective in October 2021.

Stanford Vina made additional claims that targeted Fish and Wildlife-maintained fish ladders and screens on its main diversion dam on Deer Creek. The company claimed the department said it wouldn’t continue the operation until it had a memorandum of agreement about each party’s responsibilities over their maintenance.

Debris then collected, blocking a fish ladder, the companies wrote.

“Plaintiffs allege that this ‘caused harm and a "take" to salmon and steelhead’ and that the ‘imminent risk of mortality continues through the present so long as the [Department defendants] refuse to fulfill repairs and maintenance obligations,’” Stanford Vina wrote.

The companies’ claims against the board members describe the taking of real property without compensation; failure to hold an evidentiary hearing; a claim under Article X of the California Constitution, which deals with water; and a violation of the public trust doctrine.

Stanford Vina’s claims invoke the taking of real property as well, but also the Endangered Species Act. The judge granted Fish and Wildlife's motion to dismiss on that claim, but kept intact the claim against Bonham, the department’s director.

“Specifically, plaintiff Stanford Vina alleges that a ‘fish counter camera apparatus’ installed by the department at the fish ladder located at its dam has ‘caused debris to fill up and block the fish ladder, leaving present fish unable to utilize the ladder for passage purposes,’” the judge wrote.

The companies have three weeks from Friday to file an amended complaint or continue on their remaining claims.

Categories / Environment, Law

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