-RBB United States of America v. Fallbrook Public Utility District

Filing 5672

ORDER Granting Joint 5669 Motion to Extend Stay. Case stayed until 7/9/19. Signed by Judge Gonzalo P. Curiel on 1/17/19. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Case No. 51-CV-01247-GPC-RBB

Plaintiff,

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ORDER GRANTING MOTION TO
EXTEND STAY

CAHUILLA BAND OF INDIANS,

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Plaintiff-Intervenor,

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[Dkt. No. 5669]

RAMONA BAND OF CAHUILLA,

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Plaintiff-Intervenor.

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v.

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FALLBROOK PUBLIC UTILTIY
DISTRICT, et al.,

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Defendants.

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A Joint Motion to Extend Stay was filed by Plaintiffs-Intervenors the Cahuilla

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Band of Indians and the Ramona Band of Cahuilla, (Dkt. No. 5669). No opposition to the
motion was filed by any party.1

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Plaintiffs-Intervenors state the United States, State of California, County of Riverside, Riverside
County Flood Control and Water Conservation District, Greenwood Landowners, Hemet Unified School
District and Agri-Empire do not oppose their motion.
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In their motion, Plaintiffs-Intervenors describe the many actions taken by the
parties to achieve a settlement since the last stay was granted in this case by the Court.
Since the last stay extension was granted on July 19, 2018, the settlement parties have
engaged in extensive negotiations to conclude a settlement. The parties have drafted two
settlement agreements. The first agreement requires the Cahuilla Band to pay for the costs
of the water project from the revenues generated by the Cahuilla Band operating
businesses on an economic development parcel that would be taken into trust by the
United States for the Tribe under the terms of the settlement agreement. That agreement
would have to be approved by the Governor. During the course of the negotiations,
former Governor Brown was not provided with the information necessary to fully
evaluate the Cahuilla Band’s proposal regarding the economic development parcel in time
to make a decision before the end of his administration. He did, however, advise the
Cahuilla Band of the policy concerns raised by the proposal. Governor Newsom has not

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yet appointed a senior Tribal Advisor, but it is the parties’ intention that, as soon as one

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is appointed, and after the Cahuilla Band provides the Governor’s Office with the

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information necessary to evaluate the proposal, and after the information is reviewed, the
Attorney General’s Office will consult with and advise the Governor’s Office regarding
the proposal. Following that process, the Cahuilla Band expects to learn Governor
Newsom’s position on a settlement that includes a provision authorizing the United States
to acquire the economic development parcel in trust for the Tribe.
The second proposed settlement agreement does not involve taking the economic
development parcel into trust. Under the terms of the second agreement, the costs of the
construction of the water project would be paid from an appropriation by Congress. The
current draft of the second agreement consists of 59 pages and 15 sections which include,

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but are not limited to, sections covering general provisions, the Cahuilla Band’s water

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rights, the Ramona Band’s water rights, the federal agencies’ water rights, the state

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agencies’ water rights, the water rights of other represented parties, future use rights of

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represented parties, water rights of nonparticipating parties (those not participating in the
settlement discussions), enforcement of the final decree, administration of the settlement
agreement and the final decree in both the Cahuilla Groundwater Basin and Anza
Groundwater Basin, waivers and releases of claims, conditions precedent to
enforceability, the federal legislation necessary to approve the agreement and six
miscellaneous provisions.
Since the last stay was approved by the Court, the parties have had numerous
telephone calls and face to face meetings to reach consensus on a proposed settlement
agreement. The parties have reviewed the latest drafts of the proposed settlement
agreements, have exchanged comments on the drafts, and have exchanged revisions to
the drafts.
The principal provisions for which agreement has not yet been reached concern
management of the groundwater basins in accordance with the goal of safe yield and
sustainable groundwater management principles. Specifically: the outstanding questions
are: (1) when sustainability principles require active groundwater management, who
reduces their water use first and in what amounts; and (2) what is the best means to
measure groundwater use to facilitate sound groundwater management, including whether
meters should be installed on certain groundwater wells. The State of California has
proposed a method for sustainable management that the parties currently have under
review and will take up at their next face to face meeting scheduled for February 13, 2019,
in San Diego. The next meeting with U.S. Magistrate Judge Brooks is a telephone
conference call scheduled for February 20, 2019.
The parties have set April 1, 2019, as the target date for agreeing on a settlement
or agreeing that they have reached an impasse. Within thirty days of the Governor’s
receipt of the necessary information from the Cahuilla Band, the parties expect to know
Governor Newsom’s position on the settlement agreement containing provisions
pertaining to the Cahuilla Band acquiring the economic development parcel. In addition,

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by April 1, 2019, the parties hope to have completed revisions to the latest draft of the
settlement agreement that does not pertain to the acquisition of the economic development
parcel. At that time, if the parties believe that they need Judge Brooks’ assistance in
helping them resolve the remaining outstanding issues, they will request that Judge
Brooks schedule an in-person, in-court settlement hearing.
Since the last request of the parties to extend the stay, the parties have shown
significant progress in reaching an overall settlement of the case. The Cahuilla Band of
Indians have agreed as part of the settlement to cap the amount of water it would
appropriate each year from the basin, purchase the Agi-Empire property and retire its
water right so that there is sufficient water in the basin to meet all the parties’ needs,
purchase and develop the economic development property and use the revenues generated
from the development of the property to pay for the construction and operation of the
water project and operate the water project so that sufficient water will be available in the
Anza/Cahuilla water basins to maintain the basins on a sustained yield basis.
The Cahuilla Tribe has developed a plan for the acquisition and purchase of the
Agi-Empire property and the economic development property, the latter of which would
be developed to generate revenue to pay for the costs of the water project. The settlement
agreement has been revised by the Cahuilla Tribe to provide for this plan and has been
reviewed and commented on by the parties.
The settlement process is moving forward and concrete actions are continuously
being taken and it appears that the settlement negotiations are being conducted in good
faith. As the Court noted in a prior order, “[w]hile nine years is a long period for a stay to
be in place, it must be considered in light of the up to 3000 defendants in this case
involving complicated technical and legal issues to resolve.” (Dkt. No. 5582 at 11); see,
e.g., Central Delta Water Agency v. United States, 306 F.3d 938, 943 (9th Cir. 2002)
(stating that management of water resources is one of the most contentious issues in the
western United States). As Judge Gould recently stated in his concurrence with the Court

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of Appeals for the Ninth Circuit’s recent decision upholding the stay in this case,
“[S]ettlement is salutary and we recognize ‘a clear policy of favoring settlement.’ Marek
v. Chesney, 473 U.S. 1, 10 (1985). . . . . [W]ater rights litigation is often complicated and
protracted, includes here large numbers of water users, and it is encouraging that
settlement talks to date have shown some signs of progress, including a prior water rights
settlement concerning water users in a different part of the watershed.” United States and
Ramona Band of Cahuilla Indians et al. v. Burnett, et al., United States Court of Appeals
for the Ninth Circuit, Case No. 17-55664, Gould, Circuit Judge, concurring, at *1.
Based upon the forgoing, the Court GRANTS the motion to extend the stay by six
months. Accordingly, IT IS HEREBY ORDERED that the motion to extend stay is
granted and the stay is extended until July 9, 2019.
IT IS SO ORDERED.

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Dated: January 17, 2019

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