May 30, 2014

PLF files amicus brief in support of water rights

By Anthony L. Francois Senior Attorney

Last year we reported that the Siskiyou County Farm Bureau successfully sued the California Department of Fish and Wildlife over whether the Department has the authority to limit the use of water rights.  The Department subsequently appealed the decision, and today PLF filed this amicus brief, along with the California Cattlemen’s Association, in support of the Farm Bureau.

The Department has authority under state law to issue permits for actions that alter lake or stream beds, such as gravel mining, dam construction or maintenance, road and bridge building, and the like.  In an Orwellian flourish, the Fish and Game Code styles these permits as “Agreements.”  In a recent departure from 40 years of administrative interpretation, the Department has claimed that it also has the authority to limit use of water rights in Siskiyou County despite the fact that removal of water from a stream does not alter the bed or bank of the water body.

The trial court agreed with Farm Bureau that the Department has no such authority, and the appellate court should as well.  PLF’s amicus brief argues that the purported authority claimed by the Department is legally vested in other officials and the local courts under final adjudications of water rights in Siskiyou County. The brief also points out the significant practical problems that would result from requiring these additional permits for farmers and ranchers to exercise their water rights, as well as the special status of pre-1914 appropriative water rights.

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Strawberries being irrigated in Siskiyou County

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