27 Nov 2008

Sneaky Takings via Public Trust

Stuart L. Somach, a lawyer whose firm has many irrigation districts, a few cities and no environmental groups as clients, attacks [PDF] the stealth methods of taking water in AG Brown's "clarification" of Public Trust.

He begins with a useful fact:
In California, groundwater is generally not regulated through a statewide system of allocation. Common-law concepts govern the allocation of groundwater with some groundwater basins within California operating under management rules established through court adjudications or basin-specific legislation or through groundwater management plans or local ordinances. Moreover, a legal fiction exists that denies the physical connection between surface water and groundwater.
He then points out where the AG oversteps the law:
The basic concepts articulated within the Attorney General’s Reallocation Letter, including the reasonable use doctrine and the public trust doctrine, clearly are part of the law and are without dispute. What is disputable, however, are the leaps in logic that are employed in order to justify ignoring the prior rights to water in the zeal to reallocate that water to environmental purposes without paying for it.


The Reallocation Letter also, with absolutely no authority, states that “it is possible that water users contributing to the harm to trust resources could be assessed a fee, to be used to purchase water or to restore habitat or to take other measures ... where those actions would be effective to offset the harm that they are doing to trust resources, in other words they will contribute money.” (Reallocation Letter at p. 16, emphasis in original.) This gratuitous statement is apparently made in support of the Delta Vision proposal to assess fees against all the diversions of water in California. Apparently there is some thought that these diversion fees obtained from water users, including those who hold senior water rights, could be utilized to purchase the very water upon which the fees are being assessed.
He then concludes with:
Now is not the time to chart new social policy by ignoring private property rights in water in order to address problems in the Delta. Instead, one should fully utilize the existing system of water rights, recognizing property rights, and allow that system along with the water markets engendered by that system to work as intended to address the scarcity of water and the need to reallocate it to meet Delta needs.
Gee, before I read this, I thought that lawyers argued with only truth and evidence. Now I know that they are just like economists (arguing the opinions of their clients with selective use of facts) -- just without the fancy math.

Bottom Line: Protect property rights and facilitate water sales. (Money flows one way, water the other.)

hattip to the Coastal Shark


  1. I had the opposite realization when I started working in economic consulting. I always knew you could pay a lawyer to say pretty much whatever you want. I had no idea it was the same with economists until I got out of school and started working for an economic expert witness.

  2. I agree with you about Somach's argument. AG Brown's letter is pretty middle of the road, the kind you'd expect from someone expecting to run for governor. It is also very thorough. I do not see any large leaps in logic to make the suggestions Somach is aching about. For one, this is analogous to other situations in which someone harms resources held in the public trust. They are assessed a fine, required to mitigate, or pay a fee for the state to take action on their behalf. Second, California Constitution, Article X, section 2, limits water rights to reasonable and beneficial uses including groundwater rights. City of Barstow v. Mojave Water Agency23 Cal.4th 1224, 99 Cal.Rptr.2d 294. It is not a stretch to expect damage to the environment be considered unreasonable. I could go on, but it is not worth my time. :-)

  3. I should note that I doubt AG Brown even read that letter. A junior attorney familiar with water law, perhaps even in SWRCB or DWR, drafted the letter, it was reviewed by a senior attorney who then presented it to Cahill, and perhaps Brown, to skim and sign.


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