THE COURT: It is ordered that the opinion filed herein on September 11, 2014, 229 Cal.App.4th 879; ___ Cal.Rptr.3d ___, be modified as follows and the petition for rehearing is DENIED; 1. On page 6, in the first partial paragraph, the first full sentence beginning, "In May 2013" [229 Cal.App.4th 888, advance report, 1st full par., lines 4-5], is amended by substituting the phrase “a written statement of decision” for the phrase “an order.”
( Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 888-890, 177 Cal.Rptr.3d 735, fns. omitted.)
We must agree with defendant. Water is a resource for which “[o]wnership ... is vested [collectively] in the state's residents....” (Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 888, 177 Cal.Rptr.3d 735 ). “Hence, the cases do not speak of the ownership of water, but only of the right to its use.” (United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 100, 227 Cal.Rptr. 161.)
After the Board entered the proposed CDO, Millview, Hill, and Gomes (plaintiffs) jointly prevailed in a mandate action filed to challenge the CDO. We affirmed the superior court's order vacating the CDO in Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 177 Cal.Rptr.3d 735 (Millview I ). Following our decision, plaintiffs sought an award of attorney fees from the Board under Code of Civil Procedure 1section 1021.5, arguing they had conferred a substantial public benefit by obtaining a published appellate opinion addressing the issue of water rights forfeiture under California law.
And the principle that the unauthorized diversion or use of water may be a trespass is codified by statute and has been applied in a number of authorities. ( Wat. Code, § 1052, subd. (a) ; see, e.g., People v. Shirokow, supra , 26 Cal.3d at p. 304, 162 Cal.Rptr. 30, 605 P.2d 859 ; Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 895–896, 177 Cal.Rptr.3d 735.) But neither Fall River nor that statute support a cause of action for trespass under the circumstances here.
A court "review[s] the record to determine whether the [Board's] factual findings are supported by substantial evidence, resolving all evidentiary conflicts and drawing all legitimate and reasonable inferences in favor of the [Board's] decision." Millview Cty. Water Dist. v. State Water Res. Control Bd., 229 Cal.App.4th 879, 177 Cal.Rptr.3d 735, 746 (2014) (citation omitted). Like Nevada courts, California courts review the Board's legal conclusions independently, "giving deference to the determination of the agency appropriate to the circumstances of the agency action."
Riparian users and pre-1914 appropriators need neither a permit nor other governmental authorization to exercise their water rights. [Citation.]" (Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 888-889, fns. omitted (Millview).) Carlsbad contends it is entitled to declaratory relief with respect to its claim of pre-1914 water rights because California courts have concurrent jurisdiction over water rights cases (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 451), and therefore Carlsbad was not required to first present its claim of pre-1914 water rights to the Board for determination. Carlsbad also contends that even if the doctrine of exhaustion of administrative remedies would require it to first present its claim of pre-1914 water rights to the Board, exhaustion is not required where it would be futile; Carlsbad asserts that here, presenting its claim of pre-1914 water rights to the Board would be futile because the Board's adverse position with respect to Carlsbad's pre-1914 water rights is clear.
Finally, Abatti contends that the 2013 EDP causes a "forced reduction" of water use by farmers, that an appropriator's "water rights ... are lost by a sustained period of five years of non-use" under sections 1240 and 1241, and that the District risks losing its rights by reducing the amount of water used by farmers. The authority that Abatti cites in support of these contentions pertains to forfeiture of pre-1914 rights and is inapposite ( Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 891, 177 Cal.Rptr.3d 735 ), and he provides no statutory analysis. We deem the point forfeited, other than to note that Abatti is essentially ignoring the existence of the clearinghouse, as he does in other arguments that we discuss, post.
And we refer to other appropriative rights as post-1914 rights because they were acquired after that date under the state's current permitting scheme. (See Shirokow, at p. 307 & fn. 6; Haight v. Costanich (1920) 184 Cal. 426, 431; Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 889, fn. 7.) -------- The court next described the parties' respective rights to maintain and manage the ditch and the diversion structure on Farmer's property.
Pini does not explain why the discovery already conducted was insufficient or what particular information she was denied. (Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 906.) The court left open the possibility of further discovery if its relevance became apparent in the course of the trial.