Ninth Circuit Revives Farmer’s 15-Year Fight Over a Ditch

SAN FRANCISCO (CN) – The Ninth Circuit on Wednesday revived and remanded a decades-old water rights beef between a cattle rancher and a rural Northern California county over an irrigation canal.

In a win for Irvine Leen, who has been defending his rights to a seasonal irrigation ditch in rural Butte County since 2003, a Ninth Circuit panel ordered a federal judge in Sacramento to reexamine Leen’s due process and equal protection claims.

The spat over agricultural runoff that dries up each summer has resulted in over 70 court appearances for Leen. His lawsuit stems from a failed criminal case brought against him by Butte County for clearing debris from an irrigation ditch that ran through his property.

Authorities charged Leen in 2003 with obstructing the stream and of depositing silt in a manner that could harm fish and birds.

The case, which was suspended when Leen accepted a pretrial motion and agreed to restore the waterway, was spun upside down in 2006 when the state water board revealed Leen held water rights to the ditch. Nonetheless, Butte County prosecutors persisted, eventually bringing the case to trial more than seven years after filing charges.

In a matter of hours, a jury acquitted Leen of all criminal charges in 2011.

Leen responded with a federal lawsuit against a batch of parties and departments that investigated his property in Oroville, approximately 90 miles northwest of Sacramento.

He claims during and after the criminal investigation, former California Department of Fish & Wildlife investigators Harold Thomas and John Lane lied to the water board in hopes of swaying its decision on a change to Leen’s water license. Thomas and Lane simultaneously worked for Butte County District Attorney Michael Ramsey, and all three are named in their individual capacities.

Leen settled with Fish and Wildlife and the water board in 2013 and 2014, respectively.

His attorneys with Cannata, O’Toole, Fickes & Almazan in San Francisco say the defendants were relentless and kept pushing even after criminal case was completed.

“The district attorney continued to push and we had no choice but to bring this action,” Therese Cannata said of the lawsuit filed in 2012. “I’ve never seen such pursuit after a criminal trial; we really expected it to be over at that point.”

Cannata said the defendants made several low-flying helicopter flights over the Leen property, circling and taking pictures of the ditch just weeks after the trial ended. Thomas then sent the pictures to the water board, hoping to convince it to start a new criminal investigation or delay a new decision on Leen’s water license, the complaint states.

The lawsuit cites emails between Thomas and the water board in which Thomas accused Leen of “rebuilding a dam” and wished the water board luck in “this endeavor to go after Mr. Leen.”

The Leens’ struggle to secure their water rights finally ended in 2013, when the water board approved their petition to fix a mistake on the water license.

But the Leens’ quest for civil retribution stalled in 2015, when U.S. District Judge Troy Nunley ruled their claims were barred by a statute of limitations and they didn’t prove their water license was federally protected. Nunley added the defendants’ prosecution of Leen appeared “unnecessarily vigorous.”

The three-judge Ninth Circuit panel gave the matter new life on Wednesday, ordering Nunley to explain why he dismissed Leen’s equal protection claim. The panel also vacated Nunley’s dismissal of procedural and substantive due process claims relating to the Leens’ amended water license.

“On remand, the district court may wish to consider whether the Leens’ application for change of point of diversion is different for due process purposes from the water license underlying it,” the order states.

The Butte County District Attorney’s Office declined to comment on the Ninth Circuit decision.

The 15-year court battle depleted the Leens’ finances, and they resorted to selling the Oroville ranch. Cannata says the family has likely spent over $600,000 in legal fees and have since moved to Idaho.

“They had to spend their retirement and money put aside for their kids’ college to fight this battle,” Cannata said. “I’m confident we will prevail, Nunley is a good judge.”


%d bloggers like this: