Los Angeles Times
July 10, 2015

A Superior Court order issued Friday raises questions about the state’s process of curtailing water rights during the drought.

The West Side Irrigation District, which has junior rights to some flows in the Sacramento-San Joaquin Delta, challenged notices in which state regulators ordered the agency to stop drawing supplies from the delta’s Old River.

Sacramento County Superior Court Judge ShelleyAnne Chang issued a temporary restraining order, barring the state from enforcing the curtailment on the grounds that the state had violated the district’s constitutional right of due process.

“The Curtailment Letters … result in a taking of Petitioners’ property rights without a pre-deprivation hearing, in violation of Petitioners’ Due Process Rights,” Chang wrote.

The State Water Resources Control Board has issued thousands of curtailment letters this year, telling junior and some senior rights holders that they had to stop diverting supplies from drought-starved rivers and streams because there wasn’t enough water to meet all their demands.

Some irrigators have responded with lawsuits, contending, among other things, that before the state board can halt diversions, it must first hold hearings in which the rights holders can contest the need for curtailments.

The state board has argued that the curtailment letters are technically notices, not orders: Only if the districts continued to withdraw water would the board issue enforcement orders, subjecting violators to steep fines or possible court prosecution.

In a five-page order, Chang rejected the state board position, concluding that the curtailment letters amounted to a command. The board’s “argument is not only misguided, it is also inaccurate,” the judge wrote.
The ruling applies only to this particular case. But attorney Steve Herum, whose firm filed the lawsuit, said it could nonetheless have a ripple effect.

“I’m not suggesting that it has a binding effect on every other letter that was issued,” Herum said. “But it should cause the state agency to pause at least. And I would not be surprised if one or more recipients may rely on this opinion to say that the letter has an unconstitutional impediment in it. “

In a statement, the state board noted that Chang’s order was limited to the case. The board also cited language in which Chang said the board was free to exercise its authority to enforce the state Water Code.

On July 30, the judge will hear arguments on whether she should issue a preliminary injunction “requiring the board to issue a revised letter/notice that is informational in nature.”