be very diffi cult to overrule,” with “some presumption that the ALJ got it right,” said Baggett, adding that the analogy would be the manner in which the State Water Board does not usually reverse the decisions of its nine regional boards.


Altering the State Water Board’s hearing process is likely more ame- nable than creating a water court in California.


“The major problem in California is convincing the judiciary that this is a good idea,” said Thompson with Stanford University. “Once one de- cides to create a specialty court in one area, it’s hard to argue against creating such courts elsewhere – and soon you have a highly specialized court system that loses much of what we admire most about courts in the United States. There’s also the interesting question of whether we have enough water cases to justify creating specialized water courts.”


Hastings said there has been discussion of implementing adminis- trative procedures for water litigation or adjudication such as exists with California Environmental Quality Act cases in which specially identifi ed judges are brought in to handle the compressed timeframe needed for the administrative record.


“That would be a baby step to


improve effi ciency,” she said. With the emphasis on better groundwater management, whether at the state level, county level or both, adjudication may be necessary in some areas to ensure the pumping of an aquifer doesn’t push it into overdraft or worsen existing overdraft.


“If we are going to depend just on the courts to do this, then we need a court with some expertise,” Brandt said. “If not, we are going to have elected offi cials and others making these judgments because it’s about policy as well as legal adjudication.” While Colorado has “perhaps the


most defi ned or refi ned mechanism” it’s not one California necessarily needs to adopt, Somach said. Because of the state’s size, water cases could perhaps


July/August 2014


be heard at the appellate district level or centralized in Sacramento. Hastings, who has spent consider- able time on groundwater litigation in Los Angeles County, said the question is how to use the existing legal struc- ture to create streamlined avenues for complex cases and those deserving special attention. “We could still keep existing framework as opposed to a water court, which is a separate entity,” she said. “Water courts sound like a good idea … but [Colorado and California] are two different systems and it would be challenging to implement what Colorado has done in California,” McGlothlin said. “California needs refi nements to its adjudication pro- cedures that are tailored to the state’s water rights system. For example, groundwater adjudications could be processed far more expediently if there was an effi cient means to provide no- tice to all stakeholders, which includes all overlying landowners; mandatory early disclosure of claims and evidence and an effi cient fact-fi nding procedure, perhaps similar to the PUC evidentiary hearing process.”


Legislation by Sacramento Demo- cratic Assemblyman Roger Dickinson, AB 1739, states that it is the Legis- lature’s intent to require “expedited adjudications” for groundwater based on “innovative judicial procedures … developed by the Judicial Council as quickly as reasonably feasible.” Hobbs said it’s not that permit


systems can’t work but that “they seem to result in a lack of enforce- ment and if you don’t have a system that effectively curtails junior rights in times of shortage to senior rights, then everybody’s pulling from the same pool at the same time and you don’t have a reliable market in buying or leasing senior water rights because there is no security in the yield they can produce under varying water availability scenarios.”


Because of the obstacles in the way of dramatic change, it seems the exist- ing system of water litigation is here for the foreseeable future. ❖


13


“If it’s dry again next year, I expect these issues will be pressed forward and you will see a lot more administrative and judicial activity regarding these issues.”


– Hanspeter Walter, Kronick, Moskovitz


Hear more from Kronick, Moskovitz, Tiedemann & Girard’s Hanspeter Walter


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