Suit to Seeks to Establish State Water Board jurisdiction over Groundwater Connectivity with River

John Bowman
Siskiyou Daily News, June 18, 2013

As the struggle to properly manage water in Scott Valley drags on, a recent decision by a state appeals court has determined that one battle will be hashed out in Sacramento rather than here in Siskiyou County.

In 2010, the Environmental Law Foundation, the Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources filed a complaint against the state water board and Siskiyou County alleging failure to manage Scott Valley groundwater in accordance with California’s public trust doctrine.

The suit essentially seeks to establish state water board jurisdiction over Scott Valley groundwater that is interconnected with the river.

Siskiyou County contends that its 1980 Scott River Decree gives it sole jurisdiction over groundwater resources in the Scott Valley. The lawsuit argues that the county has allowed too much pumping of groundwater in the zone connected to river surface flows, thereby damaging the river and other public resources related to it.

The original suit was filed with the Sacramento Superior Court, but Siskiyou County subsequently filed a petition for a change of venue, claiming the case should be heard in the Siskiyou County Superior Court because they believe the county has sole jurisdiction.

The county’s first petition was denied. The county appealed that decision and on Thursday, California’s Third District Court of Appeals denied the county’s petition again.

According to the California State Lands Commission, “The origins of the public trust doctrine are traceable to Roman law concepts of common property. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public.”

The commission says the concept endured throughout history and was embodied by English common law through a ruler’s ownership of public resources “as trustee of a public trust for the benefit of the people.”

According to the state’s public trust doctrine, “Title to lands under navigable waters up to the high water mark is held by the state in trust for the people. These lands are not alienable, in that all of the public’s interest in them cannot be extinguished.”

In recent times, environmental groups have focused on the doctrine as a potential tool to re-evaluate and restructure California’s water regime. That effort has been played out in several areas of water law, including groundwater.

Thursday’s appellate court ruling against a change of venue does not address the public trust doctrine or its relevance to groundwater, only the question of the county’s sole jurisdiction as it affects the suit’s appropriate venue.

The court’s decision says the county’s jurisdiction is relegated to the issues covered by the Scott River Decree, but “the question of whether Siskiyou must follow the public trust doctrine to monitor groundwater extractions that are not subject to the 1980 adjudication is not a matter necessarily related to the 1980 decree. There is no evidence the public trust doctrine was even considered in the formulation of the 1980 decree.” The decision adds, “Nor are the issues in the petition ‘substantially the same’ as the issues adjudicated in the 1980 decree.”