California Trout, Inc. v. State Water Resources Control Board

Kronick, Moskovitz, Tiedemann & Girard, Adolph Moskovitz, Clifford W. Schulz, Ronald A. Zumbrun, Raymond M. Momboisse, Elleene A.

Kirkland, Thomas F. Olson and Jeanne M. Bauby as Amici Curiae on behalf of Defendants and Appellants.

McCutchen, Doyle, Brown & Enersen, John R. Reese and Barry P. Goode for Plaintiff and Appellant.

P.A. Towner, Russell Kletzing and Marcia J. Steinberg as Amici Curiae on behalf of Plaintiff and Appellant.

OPINION

REGAN, J.

Defendants (board) appeal from the trial court's judgment, entered upon stipulated facts, ordering the board to consider, on its merits, plaintiff's application to appropriate water from Redwood Creek in Marin County. The board had acted adversely on plaintiff's application to appropriate water (from Jan. 1 to Dec. 31 of each year) flowing in Redwood Creek without taking possession of the water or diverting it, but rather by putting it to beneficial use inside the stream itself by allowing it to flow naturally and freely in the stream for "preservation and enhancement of fish and wildlife." [1] The adverse action consisted of a refusal by the board to consider the application as it showed on its face there was to be no diversion…

Defendants (board) appeal from the trial court’s judgment, entered upon stipulated facts, ordering the board to consider, on its merits, plaintiff’s application to appropriate water from Redwood Creek in Marin County. The board had acted adversely on plaintiff’s application to appropriate water (from Jan. 1 to Dec. 31 of each year) flowing in Redwood Creek without taking possession of the water or diverting it, but rather by putting it to beneficial use inside the stream itself by allowing it to flow naturally and freely in the stream for “preservation and enhancement of fish and wildlife.” 1 The adverse action consisted of a refusal by the board to consider the application as it showed on its face there was to be no diversion of water from the stream or any physical control of the water. The trial court, acting on plaintiff’s complaint for declaratory relief, declared in its formal judgment that “water may be appropriated within the meaning of the Water Code and California case law without the exercise of physical control of the water.” Moreover, the court declared the board must accept and determine plaintiff’s application for appropriation since plaintiff had…

I dissent. “Appropriation of water” in California is simply a way of designating who is entitled to what portion of water. Respondent asserts and appellants agree that an appropriative right can be perfected without diversion of the water. But appellants mistakenly maintain that some physical control must be exercised over the water: the true test of an appropriative right is the successful application of the water to a beneficial use. In those cases where beneficial use required a *823 diversion of the water, such as in mining, the law also required a diversion. (Irwin v. Phillips (1855) 5 Cal. 140 .) But where the beneficial use involved a deriving power from the flow of the stream, decisional law allowed a water wheel to be placed in the stream to attain such an end. (McDonald & Blackburn v. Bear River and Auburn Water and Mining Company (1859) 13 Cal. 220 ; Tartar v. The Spring Creek Water and Mining Co. (1855) 5 Cal. 395 .) Similarly, the law sanctions a reservoir as a means of achieving an appropriator’s beneficial recreational use (Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424 [ 90 P.2d 537 ]) and views cattle access to drinking from a stream as a way to achieve the…