May 10, 2013

California agency appeals from order barring it from regulating water rights

By Anthony L. Francois Senior Attorney

Last December we reported on Siskiyou County Farm Bureau’s court victory against the California Department of Fish and Wildlife.  The Department was demanding that farmers and ranchers seek a permit under the Fish and Game Code simply to exercise their valid existing water rights, and the Farm Bureau sued to protect its members’ water rights.  The court agreed with the Farm Bureau that the state legislature did not grant the Department of Fish and Wildlife any authority to regulate water rights, and issued an order enjoining the Department from demanding permit applications from water right holders statewide.

The Department has now appealed that order to the California Court of Appeal, where PLF will be supporting the Farm Bureau as amicus curiae.

One interesting question in the case is whether the injunction against the Department’s interference with water rights will remain in effect pending appeal.  Since it is a prohibitory injunction (forbids the agency from doing something), the rule is that it remains in effect pending appeal unless the enjoined party obtains a stay from either the trial court or the court of appeal.  The Department has not yet sought a stay, but we will update if it does.

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