Borrego Sun - Since 1949

All those who own property in Borrego have been receiving a green slip at the post office and then signing a certified mail receipt for a notice about a lawsuit. I’ll explain this to the best of my ability. But first, a few words about other business at the WaterMaster Board Meeting of Sept. 24.

The biggest news is that ED Samantha Adams reported that almost all pumpers whose wells will be monitored have gotten those meters calibrated and certified in preparation for our valley’s first comprehensive reading of well meters. A few are in the process of being worked on. All entry permits to read meters have been signed. BWD will perform those readings prior to the end of the month, with one or two within a few days after. So as of now there is 99% compliance with the mandatory meter reading preparations, with acknowledgement going to Director Mike Seley for his help in arranging to get this done. We will finally have verified numbers about how much water is being pumped in our valley by the major pumpers, based on calibrated and monitored water meters.

Other items discussed included what further steps need to occur to open a WMB Bank Account at Union Bank under Wildermuth’s account there, and a call for Directors to make their recommendations for appointments to the WMB Technical Advisory Committee (TAC).

It was pointed out by Lyle Brecht that the role of the TAC is to respond to needs of the WMB, not to create its own plan. Directors Dave Duncan and Shannon Smith agreed. As a member of the public, Brecht also asked at the start of the meeting that the formation, mission and budget for the Environmental Working Group (EWG) be put on the agenda for the next WMB meeting. He mentioned that provisions for the EWG were scant in the Stipulated Judgment, no biological studies were introduced, no risk factors stated, and that the EWG is important. Director Duncan agreed.

Back to that certified notice about a lawsuit that you have probably received or heard about. If you use the internet, I strongly encourage you to go to the link given in the notice and also on the BWD web page for more information: http://www.borregowaterlawsuit.com.

The first thing to realize is that the Interim WaterMaster Board has been set up in accordance with the Stipulated Judgment that BWD and the major pumpers negotiated in order to manage our basin in compliance with state law that requires us to bring our critically overdrafted basin into sustainable use – no water overdrafts by the year 2040. But the Stipulated Judgment itself will only be our official water plan once a judge affirms it. The only way to get a judge to do that is to have the judge preside over a lawsuit. So the agreement among those who negotiated the Stipulated Judgment was that there would be an adjudication process, a “friendly” lawsuit, to bring the matter before a judge. Therefore, BWD, by prior agreement and in a spirit of cooperation with the other pumpers, is suing not only all of them, but all property owners in Borrego as well, as required by law, to certify the Stipulated Judgment and make the WMB an official body, approved by the court, rather than an interim body.

Every property owner in Borrego Springs has received a notice about the lawsuit. I began asking a few questions at the WMB meeting and got some responses from WMB Counsel Jim Markman and also from T2/Rams Hill attorney Russ McGlothlin, then got some follow-up clarifications from Russ and also BWD attorney Steve Anderson, and did a little further research, and believe the following to be a reasonable explanation for residents about the notices we have received.

You can do nothing, and that is what most people are likely to do. If you do nothing, you won’t be participating in the lawsuit and agree that the resolution of the lawsuit in court will be final and the basin will be managed by the WaterMaster Board, if the court agrees to that, under the jurisdiction of the court and in accordance with a court approved Stipulation Judgment or other court determination. See the notice you received for the correct legal expression of this.

Nevertheless, every landowner in Borrego Springs, whether he/she is a well owner or gets water service through BWD, can choose to participate in the lawsuit by filling out and filing the form answer that is enclosed in the notice and is entitled “Answer to Adjudication Complaint,” a four page document.

The form answer would have to be filed with the Orange County Superior Court named in the notice, along with a $435 filing fee, and a copy sent to the BWD attorney whose address and name is in the notice for that purpose. There are links on the borregowaterlawsuit.com web page for the Orange County Court for more information, along with copies of documents to review, and a telephone number to call the managers of the Borrego adjudication web page for more information: 1-833-674-0177. The Court or an attorney would be able to advise on what is needed for a complete filing.

A person receiving the notice has 60 days from when they received it/signed for it to file the form answer, if they choose to file it, and will have another period of time (possibly 30 days from filing the form answer, best to check with the court) to then e-serve or certify-mail serve the other participants in the lawsuit (73 participants by my count on 9/26 based on the OC Court Case Access web page, but do check on this if you plan to file). There are many companies that you can pay to serve or e-serve notices for you. The Ventura River Watershed Adjudication has a web page run by the same folks as are running ours. They are further along in the process and I notice that a list of participants in the lawsuit, along with contact information, is posted on that web page. Perhaps ours will have that, too, as you will have to provide contact information if a service is used.

After that, if you’ve become a participant, you will have to be prepared to attend conference/s and hearings at which legal discussions may be difficult to follow. But if you have a matter you want to advocate for or against in court, becoming a participant is how to do that. It might be best to have a lawyer who knows the language and court procedures. You may be able to participate by telephone; check with the court.

According to Steve Anderson “You can access all documents filed in the case via the OC Court website, but it requires registration and paying a fee. The substantive filed documents will be uploaded to the borregowaterlawsuit.com website.” I checked the Ventura adjudication web page and a lot of documents were indeed uploaded there, including court transcripts of the initial court conference and subsequent proceedings. I also viewed the case access page at the OC Court website and discovered that you can view there a list of documents filed under the case number on the notice you received, and then choose to pay to receive a particular document. Also available for viewing there without a fee is the service list of participants in the lawsuit, some with contact emails.

At the WMB meeting, Counsel Jim Markman said that if he owned a well here, even one that uses less than 2 acre ft/year, he would want to be a party to the lawsuit so that he was fully informed about the proceedings. Attorney Russ McGlothlin expressed appreciation that as a water rights attorney, Markman has particular insight into the underlying legal issues and would want a seat at the table, but noted that well owners not similarly versed in the applicable law might have other considerations. He later explained his point more fully in an email exchange.

“While any landowner in the basin may participate as an active defendant in the litigation by filing the form answer, there are some practical considerations that a landowner should consider:

Unless a landowner has a well and pumps more than 2 afy (the de minimis pumping limit), there’s likely little they could gain by filing an answer to become an active defendant in the case.

If a landowner does want to become an active defendant, they can file the form answer, but they will need to file the answer in court, serve their answer on other parties on the service list, and pay the first appearance fee of $435 (info available at: http://www.occourts.org/general-public/fee-schedule/index.html#civil_unlimited).

Once they become an active defendant, they’ll need to figure out what they want to achieve through legal arguments/factual showings to the court. We, of course, would hope they would join the Settling Parties in urging that the court enter the stipulated judgment. On the other hand. if they object to the entry of the stipulated judgment, they would need to articulate to the court the legal reason why the court should not enter the stipulated judgment.

In my view, that would be a difficult task because we have sought to establish consistency with water law, water policy, and fairness in the stipulated judgment.

To be further specific, the three standards by which that the court will consider the proposed stipulated judgment are set forth in the Code of Civil Procedure, section 850(a), available here: https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-850.html. Those standards are (1) consistency with California’s constitutional mandate to maximize the beneficial use of water resources, (2) consistency with water rights, and (3) no disparate treatment of any non-stipulating party. It is beyond the scope of this communication to analyze each of those factors, but I believe we have satisfied them.

If they do not intend to support or oppose the stipulated judgment, I don’t see a practical reason for a landowner to bear the cost to become an active defendant since the point of engaging is to promote a particular outcome based on presentation of legal arguments or factual showings to the court. This is just my view, but I do think someone contemplating whether to file an answer should be asking the question, what next after they file and become an active defendant.”

For my part, I was influenced in my own thoughts about whether or not to reply to the notice by learning that many of the court documents would be posted on the adjudication web page as the lawsuit proceeds.

The next regular meeting of the WMB will be at 4:30 p.m. on Thursday Oct. 8. Agenda packet and link to the meeting are at: http://www.borregowd.org/water-master. Email ED Samantha Adams at adams@weiwater.com to be put on the email list to receive these directly.