1

Filed 9/4/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

DIANNE E. YOUNG et al.,

Plaintiffs and Respondents,

v.
STATE WATER RESOURCES CONTROL BOARD, Defendant and Ap pellant ; WOODS IRRIGATION COMPANY et al.,

Real Parties in Interest and Respondents;

SAN LUIS & DELTA

- MENDOTA WATER AUTHORITY,

Real Party in Interest and Appellant

. C068559 (Super. Ct. No. 39201100259191CUWMSTK)

APPEAL from a judgment of the Superior Court of San Joaquin County, Lesley D. Holland, Judge. Reversed.2

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Senior Assistant Attorney General, Sara Russell, Tracy L. Winsor and Matthew G. Bullock, Deputy Attorneys General, for De fendant and Appellant.
Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O‟Hanlon, Rebecca R. Akroyd , Elizabeth L. Leeper ; and Jon D. Rubin for Real Party in Interest and Appellant.

Herum Crabtree, Natalie M. Weber ; Spaletta Law and Jennifer L. Spalett a for Plaintiffs and Respondents. Law Offices of John Herrick and John Herrick for Real Party in Interest and Respondent Woods Irrigation Company.
Harris, Perisho & Ruiz and S. Dean Ruiz for Real Parties in Interest and Respondents Central Delta Water Agency and South Delta Water Agency.
Neumiller & Beardslee, DeeA nne M. Gillick and Elizabeth J. Morrell for Real Parties in Interest and Respondents San Joaquin County and San Joaquin County Flood Control & Water District.

Raising an important issue o f first impression, customers 1 of Woods Irrigation Company (Woods) , a water distribution corporation, contend the State Water Resources Control Board (Water Board) lacks jurisdiction to issue a cease

- and

- desist order (CDO) for an illegal diversion of water if the diverter claims riparian or pre

- 1914 appropriative rights. The C ustomers argue the Water Board must first file a civil lawsuit to adjudicate the diverter‟s water rights before it can execute its statutory mandate to “ take vigorous
action . . . to prevent the unlawful diversion of water.” (Wat

. Code, § 1825.) The trial court granted the C ustomers‟ petition for a writ of mandamus limiting the Water Board‟s jurisdiction and awarding attorney fees under the private attorney general doctrine. ( Code C iv. Proc., § 1021.5

. )

1 The customers include plaintiffs and respondents Dianne E. Young; Ronald and Janet Del Cardo; RDC Farms, Inc.; Eddie Vierra Farms, LLC; and Warren P. Schmi dt, trustee of the Schmidt Family Revocable Trust, hereafter Customers.3

The Water Board granted the C ustomers‟ request for reconsideration , thereby reopening the hearing on Woods‟ diversions to allow the C ustomers the opportunity to
submit evidence and cross

- examine witnesses. We conclude the reconsider ation order moots the due process issue, but the jurisdictional question remains of paramount public interest. We further conclude that pursuant to Water Code section 1831, the Water Board can make a preliminary determination for purposes of enforcement w hether the diverter has either the riparian or pre

- 1914 appropriative rights it claims without filing a lawsuit. The diverter or interested parties can thereafter seek judicial review if warranted. We therefore reverse the judgment , including the award o f attorney fees.

LEGAL AND FACTUAL CONTEXT 2 The resolution of this appeal turns on the meaning of Water Code section 1831, which provides in relevant part: “(a) When the board determines that any person is violating, or threatening to violate, any requir ement described in subdivision (d), the board may issue an order to that person to cease and desist from that violation. [¶]

. . . [¶] “(d) The board may issue a cease and desist order in response to a violation or threatened violation of any of the foll owing: “(1) The prohibition set forth in Section 1052 against the unauthorized diversion or use of water subject to this division.

2 The parties have made separate requests for judicial notice, which we determine as follows: Defendant Water Board‟s September 28, 2012, request for judicial notice of Water Board o rder No. WR

- 2012

- 0012 is granted. The request for judicial notice filed by plaintiffs Diane E. Young et al. on December 11, 2012, is granted as to exhibits B

- 1 through B

- 4 only and is denied as to the remainder of the exhibits attached to that request. T he requests for judicial notice filed by real party in interest San Luis & Delta

Mendota Water Authority on September 19, 2012, and by defendant Water Board on January 9, 2013, are denied.4

“(2) Any term or condition of a permit, license, certification, or registration issued
under this division. “(3) Any decis ion or order of the board issued under this part, Section 275, or Article 7 (commencing with Section 13550) of Chapter 7 of Division 7, in which decision or order the person to whom the cease and desist order will be issued, or a predecessor in
interest to that person, was named as a party directly affected by the decision or order. “(e) This article shall not authorize the board to regulate in any manner , the diversion or use of water not otherwise subject to regulation of the board under this part.”
On February 18, 2009, the Water Board requested Woods to complete a s tatement of d iversion and u se of water from the Middle River in the Sacramento

- San Joaquin River Delta and to provide evidence to verify the basis of the asserted water right upon
which it was diverting water. Following an investigation, the Water Board issued a draft CDO against Woods for the alleged unauthorized diversion of water. On January 10, 2010, Woods requested a hearing. Four months later, the
C ustomers , owners of land on Robert s Island, sought to intervene in the hearing and requested a continuance. The hearing officer declined to continue the CDO hearing or to allow late intervention. He wrote: “The Woods CDO hearing will not bind non

- parties to the hearing. Whether landown ers who receive water through Woods would be otherwise impacted by the proceeding will depend upon the terms of an order either issuing or not issuing a CDO against Woods. The H earing Officers may, if appropriate or necessary, hold open the hearing to all ow for submission of additional evidence or to allow for participation of additional parties.” At the hearing, Woods provided evidence supporting riparian or pre

- 1914 appropriative water rights to divert no more than 77.7 cubic feet per second ( cfs ) . Aft er several revisions, the Board voted in February 2011 to approve the draft CDO . Woods was ordered to submit monthly diversion records annually , and before diverting any

water at a rate in excess of 77.7 cfs, it was required to submit additional evidence5

regarding water rights and other information to the d eputy d irector of the Water Board

. The CDO allows Woods to seek a diversion rate increase “based on additional evidence regarding the water rights of landowners not addressed in this order.” The order expressly provides: “Notwithstanding paragraphs 3 and 4 , above, if a water user or water right holder within the Woods service area provides information, and such information demonstrates an additional basis of right for deliveries of water acceptable to the Deputy Director, after issuance of this order, Woods may deliver water to the user upon the Deputy Director‟s approval.” The Customers sought both administrative and judicial review. To obtain administrative review, the Customers petitioned the Water Board for reconsideration of
the o rder , and to obtain judicial review, the Customers petitioned for a writ of mandate , claiming that the Water Board does not have jurisdiction to issue a CDO against diverters who claim riparian or pre

- 1914 appropriative r ights and that the Water Board violated their right to due process. Before the Water Board acted on the request for reconsideration, the superior court issued a peremptory writ of mandate ordering the Water Board to set aside the CDO, Water Board o rder No

. WR 2011

- 0005

. The Customers presented no evidence in the mandamus proceedings regarding the extent of the riparian and pre

- 1914 appropriative rights claimed by Woods and the Customers , and the court made no findings on this issue.
Thereafter the Water Board partially granted the Customers‟ petition for reconsideration and rescinded the due process findings adopted by o rder No. WR 2011

- 0005. The o rder also concludes the Water Board has jurisdiction under Water Code
section 1831 to determine the extent an d validity of the Customer‟s riparian and pre

- 1914 water rights. Any additional evidence produced would “be used for the purpose of considering whether to adopt an order revising Order WR 2011

- 0 005.” The Customers filed a second petition for a writ of ma ndate to set aside the r econsideration o rder, but the6

parties thereafter stipulated to a stay of the writ proceedings challenging the o rder pending resolution of the present appeal.
DISCUSSION
I
Mootness The Water Board raises the threshold question of mo otness. The Water Board contends that when it granted the Customers‟ petition for reconsideration and issued a
new order , this appeal became moot. We reject the Water Board‟s argument for two simple reasons. First, the r econsideration o rder is narrow in scope. It did not reverse the Water Board‟s resolution of the fundamental question raised in this appeal

— whether the Water Board has jurisdiction to issue a CDO in an enforcement action when the diverter asserts riparian or pre

- 1914 rights. Rather , in r escinding only three pages of the 63

- page o rder, it merely allows the Customers to participate in the CDO proceedings against Woods. While the due process challenge was a narrow one pertaining to the individual rights of
the C ustomers to participate, the broad jurisdictional question has major implications for the Water Board‟s ability to prevent the unlawful diversion of water. Thus the issues presented on appeal are not moot. Second, the jurisdictional question posed is of continuing public interest an d importance. Therefore, even if the r econsideration o rder had reversed the Water Board‟s assertion of jurisdiction, we would invoke the public interest exception to mootness. The
Water Board‟s position on mootness is at odds with its assertion that the appeal raises important issues that would have far reaching effects on California water law.
II
Jurisdiction
The Customers contend that the Water Code does not provide the authority to the Water Board to adjudicate the validity, the extent, or the forfeit ure of riparian or pre

- 19147

appropriative rights. They argue the Water Board had no jurisdiction to do so before the
enactment of Water Code section 1831 , and section 1831 , subdivision (e) exempts “water not otherwise subject to regulation of the board un der this part.” We turn to the plain language of the statutory scheme enacted by the Legislature to manage the limited water resources in California. Resolution of the straightforward statutory question before us does not require a long narrative on the complicated evolution of water rights in this state. Suffice it to say, 1914 is the pivotal year when the Legislature established a permitting system intend ed to vest in the Water Board or its predecessor state entities “expansive powers to safeguard the scarce water resources of
the state.” ( People v. Shirokow (1980) 26 Cal.3d 301, 309.) No one disputes that the Water Board does not have jurisdiction to regulate riparian and pre

- 1914 appropriative rights. ( California Farm Bureau Federation v. State
Wat er Resources Control Bd. (2011) 51 Cal. 4th 421, 429.) Nevertheless, the Water Board “does have authority to prevent illegal diversions and to prevent waste or unreasonable use of water, regardless of the basis under which the right is held.” ( Ibid .)
The question thus posed is whether the Water Code gives the Water Board jurisdiction in enforcement proceedings to determine initially whether a diverter has either the riparian
or pre

- 1914 appropriative rights it claims. Several statutes provide the answer. The Water Board has permitting authority over all water not otherwise properly diverted or used under a riparian or pre

- 1914 right. Water Code section 1201 states: “All water flowing in any natural channel, excepting so far as it has been or is being a pplied to useful and beneficial purposes upon, or in so far as it is or may be reasonably needed for useful and beneficial purposes upon lands riparian thereto, or otherwise appropriated, is hereby declared to be public water of the State and subject to ap propriation in accordance with the provision s of this code.” Unappropriated water includes water that has never been appropriated (Wat. Code, § 1202, subd. (a)), water subject to a pre

- 1914 right but that was not perfected by putting the water to8

benefici al use with due diligence (Wat. Code, § 1202, subd. (b), and water for which a right had been perfected by putting the water to use under a pre

- 1914 right but where the use later ceased ( Wat. Code, § 1240)

. In Temescal Water Co. v. Dept. of Public Works ( 1955) 44 Cal.2d 90 ( Temescal ) , a water company and water district raised essentially the same jurisdictional argument the
Customers raise here : that is, that a court, and not the Water Board, must determine the threshold question, the answer to which will determine whether the Water Board has jurisdiction or not. In Temescal , that question was whether there was unappropriated water available as a prerequisite to the Water Board‟s jurisdiction to issue a permit. The water company and water district argued that the availability of water must be determined de novo in an independent judicial proceeding. Similarly, the Customers insist that the Water Board must initiate civil proceedings to have a court determine whether the diverter has either riparian or pr e

- 1914 appropriative rights. The Customers, like the water company and water district in Temescal , reject the notion that their remedy is to seek review of the Water Board‟s determination in mandamus proceedings under
section 1094.5 of the Code of Civil P rocedure. The California Supreme Court rejected a cribbed reading of the Water Board‟s authority under the statutory scheme. The c ourt held that the Water Board, and not a court, was authorized to make the preliminary determination. The c ourt explained: “Under the present procedure, the department‟s determination as to the availability of unappropriated water concludes no right to a permit to appropriate water but merely decides a fact upon which the department bases the exercise of its discretion

. . . in the issuance of a permit. [¶] . . . There appears to be little reason to conclude that the requirement that unappropriated water exist is more „jurisdictional‟ than any other fact necessary to be established as a condition for obtaining a permit.” ( Temescal , supra , 44 Cal.2d at p p

. 103

- 104.)9

The Legislature has granted the Water Board power to investigate water use and to ascertain whether water is being diverted other than as authorized in the code. Water
Code section 1052 states , in part : “The d iversion or use of water subject to this division other than as authorized in this division is a trespass . . . [¶] . . . [¶] [ and the Water Board]
shall institute in the superior court in and for any county wherein the diversion or use is threatened, is o ccurring, or has occurred appropriate action ” to have such trespass enjoined. (Wat. Code, § 1052, subd s . (a), (c).)
In Meridian, Ltd. v . San Francisco (1939) 13 Cal.2d 424, the California Supreme Court also held that the Water Board had the power to inve stigate whether the water use in streams, including the use of water “made under appropriations or attempted appropriations acquired or asserted prior to [1914] , ” is in conformity with the water appropriation laws of the state. ( Meridian , at p. 450.) Whi le it is true that both Temescal
and Meridian were decided decades before the Legislature expanded the Water Board‟s enforcement authority in Water Code section 1831, the Supreme Court has consistently
held that the Water Board has the power or authority t o make the threshold determinations necessary to execute its responsibility to regulate water in the state of
California. These statutes and cases provide the context in which the Legislature enacted
Water Code section 1831, quoted at length at the beginn ing of our opinion. We need not turn to any of the reports or other indicia of legislative intent to construe the plain language of the statute. The preamble to section 1831 resolves the jurisdictional question. It states: “When the board determines th at any person is violating, or threatening to violate, any requirement described in subdivision (d), the board may issue an order to that person to cease a nd desist from that violation.” (Wat. Code, § 1831, subd. (a) , italics added .) The Legislature expr essly vests authority in the Water Board to determin e if any person is unlawfully diverting water ; to determine whether the diversion and use of water10

is unauthorized, it is necessary to determine whether the diversion and use that the
diverter claims is a uthorized by riparian or pre

- 1914 appropriative rights. The
Customers ‟ argument that the Water Board lacks jurisdiction to adjudicate claims of riparian or pre

- 1914 appropriative rights is flawed because it begs the question central to the appeal, namely, whether a given diversion claimed to be authorized is in fact authorized by a valid riparian or pre

- 1914 appropriative right. If it is not, the diversion is unauthorized and subject to enforcement pursuant to Water Code sections 1052 and 1831,
subdivisio n (d)(1). As the Water Board aptly concluded in its order granting reconsideration, “Put simply, the claim that a diversion is authorized under riparian or
pre

- 1914 right is no different from any other argument that there has been no
unauthorized diversio n; the argument does not deprive the State Water Board of the authority to determine whether an unauthorized diversion has in fact occurred or is threatened.”
The Customers insist that Water Code section 1831, subdivision (e) trumps
section 1831, subdivis ion (d)(1) and Water Code section 1052. They argue that
section 1831, subdivision (e) contracts rather than expands the jurisdiction of the Water Board. Section 1831, subdivision (e) provides: “This article shall not authorize the board to regulate in a ny manner , the diversion or use of water not otherwise subject to regulation of the board under this part.” Since riparian and pre

- 1914 appropriative water rights are not subject to regulation by the Water Board, the Customers contend the Water
Board is w ithout jurisdiction to issue a CDO if the diverter asserts riparian or pre

- 1914 appropriative rights. In their view, the diverter divests the Water Board of jurisdiction simply by alleging riparian or pre

- 1914 appropriative rights. We disagree. The prov isions of part 2 of division 2 of the Water Code referred to
in Water Code section 1831, subdivision (e) include the authority to regulate the diversion and use of unappropriated water, including water claimed under pre

- 1914 appropriative rights but never perfected, and rights perfected under a pre

- 1914 right but11

lost through nonuse. (Wat. Code, §§ 1201, 1202, subd. (b), 1225.) These provisions also include the authority to regulate water claimed under a riparian right but either not covered by an existin g riparian right or water being diverted in excess of a valid riparian right. Thus, issuing a CDO to enjoin unauthorized diversions does not violate
section 1831, subdivision (d) because subdivision (e) does not prohibit the Water Board from exercising it s authority in subdivision (d)(1) over unauthorized diversions.
III Private Attorney General Fees Reversing its tentative ruling denying an award of attorney fees, the trial court awarded fees to the Customers pursuant to Code of Civil Procedure section 1 021.5. That section allows an award of private attorney general fees “in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been confe rred on the general public or

a large class of persons, [and] (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate . . .

. ” We agree with the Customers that the jurisdictional question was not moote d by the Water Board‟s order granting reconsideration because that order did not reverse the
Water Board‟s position that it had jurisdiction in an enforcement proceeding to make the
threshold determination if the diverted water was unauthorized and the iss ue was of continuing public interest. Because we conclude the statutes plainly allow the Water Board to make that determination, the Customers have lost on appeal and the attorney fee
award must be reversed. The Water Board did not, however, challenge th e trial court‟s finding that the Customers had been denied due process in the administrative proceedings. In the parallel administrative proceedings, the Water Board granted the Customers ‟ petition for reconsideration and thereafter reversed its position on the due process issue by allowing the Customers to participate in the proceedings. The only question is whether the12

Customers were entitled to attorney fees pursuant to Code of Civil Procedure
section 1021.5 because they prevailed in the trial court on their due process claim. We see no evidence in the record before us that the Customers‟ ability to participate in the proceedings confers any benefit on the public generally. As farmers and landowners they seek to benefit financially from securing addit ional and steady water supplies. It was the jurisdictional question that presented an issue of ongoing public importance , and if they had prevailed on that issue, there might have been grounds for an award of fees. But given the personal financial intere sts of the Customers in prevailing on their due process claim, a claim that was recognized by the Water Board and not appealed, we must reverse the aw ard of attorney fees.
DISPOSITION The judgment is reversed, including the award of attorney fees.

RAYE , P. J.

We concur:

BLEASE , J.

BUTZ , J.