In Re: Equity 30 v.

Filing 316

ORDER signed by Senior Judge Lawrence K. Karlton on 4/27/2010 ORDERING that Defendant Barkley's 307 motion to require changes in the practices of the Water Master is DENIED WITHOUT PREJUDICE, as explained above. Barkley and the United States S HALL file briefs not to exceed ten (10) pages addressing the manner in which parties may bring actions seeking to enforce the limits imposed by the Decree. Such briefing SHALL be filed within twenty-eight days of the date of this order. Barkley MAY file a counterclaim for declaratory judgment as to whether parties to the Decree may store Decree water. Barkley MAY file a counterclaim for declaratory judgment as to whether the Decree adjudicates underflow. Such counterclaim SHALL NOT be filed until Barkley's proceedings before the SWRCB in connection with this issue are complete.(Duong, D)

1 2 3 4 5 6 7 8 9 THE UNITED STATES OF AMERICA, 10 NO. CIV. S-80-583 LKK 11 12 13 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 In 1918, the United / States commenced a water rights v. ORDER H.C. ANGLE, et al., Plaintiff, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

adjudication to settle the rights to the flows of Stony Creek and its tributaries in Northern California. Angle Decree of January 13, 1930. This culminated in the

The Angle Decree has since been

overseen by a court appointed Water Master. Michael Barkley is an inheritor of rights adjudicated by this decree and therefore a defendant in this action. Barkley began

actively participating in this litigation in 2008, when he opposed an amendment to the decree and moved to vacate the decree in its entirety. The court ruled against Barkley and denied his

subsequent motion for reconsideration. 1

Orders of February 11 and

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

May 5, 2009.

Barkley now brings a motion under Article XVI of the

Decree, styled a "Motion to Require Changes in Practices of The Water Master." In part, this motion seeks to change or clarify the administration of the Water Master's office. For example, Barkley The bulk of

seeks increased access to the Water Master's records.

the motion, however, seeks to compel the Water Master "to accept the interpretations described in defendant Barkley's Memorandum . . . or else defend his positions to the contrary with specific quotes of the page, paragraph, and exact text from the Decree." Def.'s Proposed Order, at 2. These interpretations pertain to

"underflow," accounting for parties' diversions, and storage of Decree water. The court resolves the motion on the papers and after oral argument. For the reasons stated below, the motion is denied. I. Background A. The Angle Decree The court recently summarized the history of the Angle Decree as follows: The Reclamation Act of 1902, 43 U.S.C. § 391 et seq., empowers the federal government to acquire water rights for the reclamation and irrigation of land. Pursuant to this authority, the United States Bureau of Reclamation sought to . . . acquire water from Stony Creek to serve the Orland Reclamation Project. In an action commenced in 1918, the United States, as plaintiff, brought suit against several hundred defendants within the Stony Creek watershed, seeking an adjudication of all parties' respective water rights. The United States District Court, sitting in 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

equity, issued its decision in 1930, in what is commonly referred to as the Angle Decree. Pursuant to this decree, the Bureau of Reclamation owns specific rights to water which it uses in operating the Orland Project, serving the members of the Orland Unit Water Users Association. The decree sets a variety of limits on how this and other water can be used, including the which lands may be irrigated (the Project Lands Schedule). Order of Feb. 11, 2009, 2009 WL 347749, *1-2, 2009 U.S. Dist. LEXIS 14083, *2-3. See also United States v. Angle, 760 F. Supp. 1366

(E.D. Cal. 1991), rev'd sub nom Wackerman Dairy, Inc. v. Wilson, 7 F.3d 891 (9th Cir. 1993). As the Ninth Circuit has observed, "[t]he Angle Decree is structured compartmentally." Wackerman Dairy, 7 F.3d at 894.

Notably, different Articles pertain to different types of water rights recognized under California law. rights by appropriation, setting forth Article VII concerns the rights of 117

appropriators, specifying their amount and rate of water to be diverted and the land on which the water may be used. Articles XII and XIII determine the rights of riparian owners. Beyond these

general categories, the Decree recognizes the rights of the federal government (Article VIII), the Grindstone Indian Reservation

(Article X), and the Glenn-Colusa Irrigation District (Article XIV). Articles I through VI dispose of the rights of various and Articles XV through XVII set forth general

defendants, provisions. B.

The Water Master Under Article XVI of the Angle Decree, a Water Master is 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

appointed to carry out and enforce the provisions of the decree. Decree at 176. The Water Master may issue orders, rules and

directions in connection with these duties, and if these are disobeyed, he may cut off the violator's access to Decree water as a sanction, reporting the violation and the sanction to the court. Id. The Decree authorizes the Water Master to hire a support Id. Grievances against the Water Master may be filed with Id.

staff.

this court after service on the Water Master.

Barkley states that he intends this motion to be a complaint against the Water Master under Article XVI of the Decree, and he declares that he served the Water Master prior to filing the instant motion. C. Memo at 4, section I.F-G

Procedural History The recent round of Angle litigation began on September 5,

2008, when the United States filed a motion to amend the decree. Barkley opposed this motion and filed a concurrent "cross-motion" seeking to vacate the entire Decree. Barkley argued "that the

original decree misapplied applicable California law, contained numerous factual errors, was marred by an unjust and coercive process that precluded meaningful participation by many defendants, and was otherwise inequitable." Order of February 11, 2009 at 8.

The court denied Barkley's motion and granted the United States' motion to amend. Barkley filed a motion for reconsideration, which this court denied on May 4, 2009. In the motion for reconsideration, Barkley

requested that the court modify the Decree "by inserting language 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

confirming defendant's riparian rights to certain underflow." Order of May 4, 2009 at 6, 2009 U.S. Dist. LEXIS 41320, *8, 2009 WL 1212240, *3. Without reaching the merits of the underflow

issue, the court held this issue was not raised in the prior motions, and the court therefore declined to address it for the first time in a motion for reconsideration. Barkley's next filing was before the California State Water Resources Control Board ("SWRCB"). On October 1, 2009, Barkley

filed a "protest" to an application for a permit extension filed by the Bureau of Reclamation. Dkt. No. 307-3. See Exhibit filed Dec. 22, 2009,

In this protest, Barkley repeated many of the

arguments he previously made to this court, including his arguments concerning fraud on the court during the initial proceedings. Barkley's protest also argues that SWRCB lacks jurisdiction over surface waters adjudicated by the decree, but that SWRCB retains jurisdiction of subsurface and non-Decree waters. page 15-17. Id. at CM/ECF

The protest then makes several arguments relating to

underflow, including arguing that underflow is outside the scope of the Angle Decree. II. Discussion As noted, Barkley seeks two types of relief: changes in the administration of the Water Master's office and substantive

interpretation of the Decree. changes are argued to be

Because some of the administrative necessary to implement Barkley's

interpretation of the Decree, the court begins with the questions pertaining to interpretation. 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

A.

Barkley's Request to Compel Interpretation of The Decree Barkley asks the court to order the Water Master to adopt or

rebut Barkley's interpretation of the Decree as it pertains to "Interpretation of Underflow," "Coverage of All Parties," and "Storage of Diversion Water." Def.'s Mem., §§ IV, V, and VI.

Although the United States vigorously opposes Barkley's motion, the United States has not addressed the substance of Barkley's

interpretations.

As explained below, at this point, the court can

do no more than attempt to understand the nature of Barkley's claims and identify procedures for their resolution. 1. Underflow

Barkley contends that "the Angle Decree covers surface flows only." The United States and Water Master do not take a position

as to whether this contention is correct. Instead, both argue that the Water Master is not the party who should answer the question. Although the government appears to be correct in this regard, Barkley has a right to an answer from someone. For the reasons

explained below, at this stage, the court will wait for the SWRCB process to be completed. If Barkley wishes to proceed further

here, he may do so through a declaratory judgment action. The government first argues that the court should abstain under the doctrine of primary jurisdiction in order to let the SWRCB take the first crack at interpreting the Decree in this regard. //// //// 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

The primary jurisdiction doctrine provides: When there is a basis for judicial action, independent of agency proceedings, courts may route the threshold decision as to certain issues to the agency charged with primary responsibility for governmental supervision or control of the particular industry or activity involved. Rhoades v. Avon Prods., 504 F.3d 1151, 1162 (9th Cir. 2007) (quoting United States v. Culliton, 328 F.3d 1074, 1081 (9th Cir. 2003)). Before the court may "route" the question to SWRCB, the

court must determine that the SWRCB is better positioned to answer it. Id. at 1164 ("Allowing the district court to decline a

declaratory relief action on a primary jurisdiction rationale is sensible only if the agency is better equipped to handle the action."). The government has not addressed this issue.

The water rights adjudicated by the Decree are created under and governed by California law. Wackerman Dairy, 7 F.3d at 896.

The Decree recognizes riparian, appropriative, and contractual water rights. Id. The Decree does not explicitly discuss rights

to groundwater.

Underflow, the subject of Barkley's motion, is

subsurface water flowing in association with a surface stream. Verdugo Canon Water Co. v. Verdugo, 152 Cal. 655, 663 (1908) (underflow includes the water flowing through the "soil, sand, and gravel, composing the bed" of the surface channel); Vineland Irrigation Dist. v. Azusa Irrigating Co., 126 Cal. 486, 494-95 (1899) ("underflow . . . . is the broad and deep subterranean volume of water which slowly flows through the sand and gravel underlying" surface streams) (quotation omitted), see also San 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Bernardino v. Riverside, 186 Cal. 7, 14 (1921).

Such water is

generally subject to the same rules as surface flows, and as such, it is subject to SWRCB's jurisdiction. Water Co., 152 Cal. at 663. See, e.g., Verdugo Canon

Insofar as Barkley's question is

whether the types of surface water rights recognized by the Decree carry with them a right to underflow, the SWRCB is "better equipped" than this court to interpret the scope of California water rights. Barkley's argument extends beyond the mere scope of California water rights, because he argues that with one exception "[t]he Angle Decree specifically excludes any coverage of underflow or supporting flow of underground streams." Protest at 11. The

court, rather than SWRCB, is better equipped to interpret the Decree in this regard. The "threshold decision" to such

interpretation will, however, be the ordinary scope of California water rights. Accordingly, it is appropriate to allow SWRCB to

answer that preliminary question first. Pragmatically, although the government asks this court to decline jurisdiction pending completion of SWRCB proceedings, it appears that those proceedings are drawing to a close. The SWRCB

has already denied Barkley's protest, but Barkley has filed a petition for reconsideration. The state administrative process is therefore nearly exhausted. would be more appropriate Thus, a stay rather than a dismissal in these circumstances. Davel

Communications, Inc. v. Qwest Corp., 460 F.3d 1075 (9th Cir. 2006) (court may stay or a dismiss a case under the primary jurisdiction 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

doctrine). Barkley's motion faces a further defect, however, in that it seeks relief from the wrong party. The instant motion seeks to

compel the Water Master to adopt or defend an interpretation of the Decree. The government argues, without citation to authority, that the Water Master's duties do not extend to such interpretation. Accord Wilson Decl. ¶ 8. Insofar as the Water Master has authority to "carry out and enforce" the Decree and to issue "orders, rules [and] directions," this authority must carry with it some power to interpret the Decree. Decree Article XVI. Nonetheless, the court

agrees that the primary responsibility for interpretation of the Decree rests in the court. Barkley's request would therefore be

better treated as a claim for a declaratory judgment. The combined effect of these two concerns is that the court denies the present motion insofar as it pertains to underflow, but denial is without prejudice to renewal as a declaratory judgment action once the SWRCB process is complete. Two of the government's arguments remain. incorrectly Barkley's asserts underflow that the court has The government rejected for

previously

arguments.

Barkley's

motion

reconsideration did ask the court to hold that the Decree did not include underflow. The court held that the issue was not properly

before the court because the underlying motion made no mention of underflow. The court therefore has not addressed the merits of

this argument. In a separate argument, the government implies that after the SWRCB proceedings, Barkley should turn to state court. 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

If the court has properly understood Barkley's argument, that argument should be presented here.1 2. Excess Diversions

Barkley's second request is that the court order the Water Master to interpret the Decree as "cover[ing] all parties,"

specifically the United States and the Orland Unit Water Users Association. This request is a red herring, because Barkley, the

government, the Water Master, and this court all agree that the government and OUWUA are subject to the Decree. Barkley's actual argument is that the United States and OUWUA have violated the Decree by diverting water in excess of the Bureau's allotment and by using water in ways not permitted. From

this premise, Barkley concludes that the Water Master is aware of these actions, but that the Water Master has permitted them because he has somehow concluded that the United States and OUWUA are not subject to the Decree. Barkley requests that the Water Master be "excess" diversions throughout the

ordered to tabulate these history of the decree

Putting aside this strange posture, it is clear that parties must be able to bring actions to enforce the terms of the Decree. Although Barkley's briefing is difficult to follow, it appears that The court notes that it is not clear whether there is any dispute as to whether the Decree covers underflow. As noted above, the government and Water Master have explicitly avoided stating a position on the matter. Both assert, however, that neither the United States nor the Orland Unit Water Users Association are diverting underflow. Wilson Decl. ¶ 8, Pl.'s Opp'n at 6. Although SWRCB denied Barkley's protest, no party has indicated whether SWRCB took a position on the underflow issue. 10
1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

he intends to bring such an action.2

Insofar as the federally

appointed Water Master has authority and responsibility to enforce the Decree, it is unclear what role, if any, SWRCB plays in this enforcement. Accordingly, the government's primary jurisdiction

argument is inapplicable here. Enforcement of the decree requires a determination of what the Decree permits parties to do and a determination of what the parties are actually doing. Both issues appear to be in dispute.

The court is not capable of resolving the dispute at this juncture and on the briefing presently submitted. Barkley requests that the Water Master be ordered to tabulate "a schedule of excess

diversions year by year by" the United States, OUWUA, Glen-Colusa Irrigation District, and downstream underflow pumpers, together with a list of the uses to which the diverted water has been put. The court declines to so order at this time. directs the parties to submit briefing Instead, the court the proper

regarding

procedure for use in an action to enforce the Decree. 3. Storage of Water

Finally, Barkley seeks an order stating that parties to the Decree may store their diverted water. This question appears to

turn entirely on interpretation of the Decree and the limits to water use specified therein, rather than on general principles of The government argues that the instant motion is merely a further attempt to "reopen and relitigate elements of the Angle Decree that have been fully adjudicated." Pl.'s Opp'n, 6:11-12. Although the SWRCB protest repeats many of the challenges to the Decree, these portions of the protest are generally not incorporated into the instant motion. 11
2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

California water law.

Accordingly, the court need not wait for

SWRCB to consider the issue. As with the other issues, while the Water Master implicitly has some power and responsibility to interpret the Decree in this regard, interpretation of the Decree is ultimately a matter for the court. The United States has not weighed in on the substance of

the storage question, instead challenging the propriety of this claim as it is brought against the Water Master. Rather than

attempting to answer the question in its current posture, the court directs Barkley to file a cross-complaint for a declaratory

judgment in this regard.

If the United States has an opinion on

the substance of the question, the government can present it then. B. Administration of The Office of The Water Master The remainder of Barkley's motion concerns administration of the Water Master's office. Among the contentions raised on this

subject, the most serious is that Barkley has been denied access to the Water Master's records. Barkley has not, however, made a

sufficient showing of such a denial. Apparently, Barkley's brother Dennis Barkley stopped by the Water Master's office on March 27, 2009 in an attempt to access records, and the Water Master was out. See Decl. of George G. Wilson, ¶ 6. Dennis Barkley left a message

stating "that he would return and pick up the material in one to three weeks. He has never returned." Id. Defendant Michael

Barkley claims that the Water Master's failure to affirmatively contact Barkley to confirm a convenient time to meet has denied Barkley access to the records. 12 In light of Barkley's limited

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

efforts the court declines to order the Water Master to take additional steps. It appears that Barkley and the Water Master can resolve this issue without the court's aid. Barkley predicts that when he receives access to the records he will nonetheless be prevented from copying them. The Water

Master's office is located within the OUWUA office, and makes use of some OUWUA facilities, although the Water Master is a distinct entity. Barkley fears that OUWUA, out of hostility to Barkley,

will not permit Barkley to use the shared facilities to make copies of Water Master records. Barkley has not tested this theory.

Again, Barkley has not shown an injury sufficient to warrant judicial intervention. Barkley's remaining contentions concern the Water Master's salary, staff, and office space. these must be increased. Barkley contends that all of

Because Barkley has not shown that the

Water Master is performing his duties inadequately, the court declines to order any increase. While Barkley contends that

increases are necessary to allow the Water Master to perform the tabulations Barkley requests, the court does not order the Water Master to perform any such additional work at this time. III. Conclusion For the reasons stated above, the court ORDERS as follows: 1. Defendant Barkley's motion to require changes in the practices of the Water Master, Dkt. No. 307, is DENIED WITHOUT PREJUDICE, as explained above. //// 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

2.

Barkley and the United States SHALL file briefs not to exceed ten (10) pages addressing the manner in which parties may bring actions seeking to enforce the limits imposed by the Decree. Such briefing SHALL be filed

within twenty-eight days of the date of this order. 3. Barkley MAY file a counterclaim for declaratory judgment as to whether parties to the Decree may store Decree water. 4. Barkley MAY file a counterclaim for declaratory judgment as to whether the Decree adjudicates underflow. counterclaim SHALL NOT be filed until Such

Barkley's

proceedings before the SWRCB in connection with this issue are complete. IT IS SO ORDERED. DATED: April 27, 2010.

14