Abatti v. Imperial Irrigation Dist.
Case Number: D072850
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Filed 7/16/20
MICHAEL ABATTI, as Trustee, etc., et al., D072850
Plaintiffs and Appellants, (Super. Ct. No. ECU07980) v.
Defendant and Appellant.
APPEALS from a judgment and writ of mandate of the Superior Court of Imperial
County, L. Brooks Anderholt, Judge. Affirmed in part, reversed in part, and remanded
with directions.
Musick, Peeler & Garrett, Theodore A. Chester, Jr., Cheryl A. Orr; Caldarelli
Hejmanowski Page & Leer, Lee E. Hejmanowski and Marisa Janine-Page for Plaintiffs
and Appellants.
Sutherland & Gerber and Lowell F. Sutherland for Imperial County Farm Bureau,
Imperial Valley Vegetable Growers Association, and Imperial Valley Water as Amici
Curiae on behalf of Plaintiffs and Appellants. Nossaman, Frederic A. Fudacz, Jennifer L. Meeker, Gina R. Nicholls and Tara E.
Paul for Defendant and Appellant.
O’Laughlin & Paris, Tim O’Laughlin, Valerie C. Kincaid and Ryan E. Stager for
San Joaquin Tributaries Authority as Amicus Curiae on behalf of Defendant and
Appellant.
Allen Matkins Leck Gamble Mallory & Natsis and David L. Osias for Imperial
Valley Coalition for the Fair Sharing of Water as Amicus Curiae on behalf of Defendant
and Appellant.
Somach Simmons & Dunn, Andrew M. Hitchings and Alyson E. Ackerman for
Association of California Water Agencies as Amicus Curiae on behalf of Defendant and
Appellant.
Xavier Becerra, Attorney General, Robert W. Byrne, Assistant Attorney General,
Tracy L. Winsor and Daniel M. Fuchs, Deputy Attorneys General, for State Water
Resources Control Board as Amicus Curiae on behalf of Defendant and Appellant.
The Imperial Irrigation District (District) supplies water from the Colorado River
system to California’s Imperial Valley. As an irrigation district, the District holds its
water rights in trust for the benefit of its users, is responsible for managing the water
2 supply for irrigation and other beneficial uses, and is empowered by California law to do
so. District water users include municipal, industrial, and agricultural users, or farmers.1
In 2013, the District implemented an equitable distribution plan with an annual
water apportionment for each category of users (2013 EDP). Michael Abatti presently
owns and farms land in the Imperial Valley. Abatti, as trustee of the Michael and Kerri
Abatti Family Trust, and Mike Abatti Farms, LLC (collectively, Abatti) filed a petition
for writ of mandate to invalidate the 2013 EDP on the grounds that, among other things,
the farmers possess water rights that entitle them to receive water sufficient to meet their
reasonable irrigation needs—and the plan unlawfully and inequitably takes away these
rights. Abatti’s position, fairly construed, is that farmers are entitled to receive the
amounts of water that they have historically used to irrigate their crops.2 The District
contended that the farmers possess a right to water service, but not to specific amounts of
water; that the District is required to distribute water equitably to all users, not just to
1 The terms “agricultural user,” “agricultural water user,” “landowner,” and “farmer” appear throughout the record, briefing, and case law, sometimes interchangeably. In the interest of clarity, we generally use the term “farmer” to refer to irrigating landowners like Abatti, unless the context requires otherwise.
2 Abatti disavows that he is arguing that farmers are entitled to receive a particular quantity of water. But we see no other reasonable way to interpret his position, given that he appears to view any reduction in the amount of water available to farmers as a transfer of their rights to other users. We note that although Abatti’s challenge to the 2013 EDP implicates farmers’ rights and the treatment of farmers under the plan, and we therefore address farmers generally throughout the opinion, no other farmers are parties to this lawsuit and Abatti does not purport to be bringing a class or representative action.
3 farmers; and that the 2013 EDP allows the District to do so, while fulfilling the District’s
other obligations, such as conservation.
The superior court granted the petition. The court found that farmers “own the
equitable and beneficial interest” in the District’s water rights, which is appurtenant to
their lands and “is a constitutionally protected property right.” The court found that the
District abused its discretion in prioritizing other users over farmers, taking water rights
away from farmers and transferring those rights to other users, and failing to use
historical apportionment to determine the quantities of water that farmers would receive
under the plan. The court entered a declaratory judgment that prohibits the District from
distributing water in the manner set forth in the 2013 EDP, and requires the District to
use a historical method for any apportionment of water to farmers.
The District appeals from the judgment and writ of mandate. The District
maintains that the farmers’ interest is a right to water service, only, and contends that it
did not abuse its discretion in setting the annual apportionment of water among its
various categories of users or in adopting its agricultural allocation. The District further
contends that the superior court erred by declaring that the District is required to
distribute water to farmers based on historical use. Abatti cross-appeals from an earlier
order sustaining the District’s demurrer to his claims that the District’s adoption of the
2013 EDP constitutes a breach of its fiduciary duty to farmers and a taking. The parties
also raise procedural arguments.
We conclude that the farmers within the District possess an equitable and
beneficial interest in the District’s water rights, which is appurtenant to their lands, and
4 that this interest consists of a right to water service; the District retains discretion to
modify service consistent with its duties to manage and distribute water equitably for all
categories of users served by the District. Although the superior court acknowledged
certain of these principles, its rulings reflect that it took an unduly narrow view of the
District’s purposes, thus failing to account for the District’s broader obligations, and took
an overly expansive view of the rights of farmers.
We further conclude that although the court correctly found that the District
abused its discretion in the manner in which it prioritizes water users in the 2013 EDP,
the court erred to the extent that it found any other abuse of discretion on the part of the
District in its adoption of the 2013 EDP. The court also erred by granting declaratory
relief that usurps the District’s authority, and that is based in part on flawed findings. The
court properly dismissed Abatti’s breach of fiduciary duty and taking claims. Finally, we
conclude that the parties’ procedural arguments lack merit.
We emphasize that our conclusions are limited in scope. In order to resolve the
issues raised by Abatti’s challenge to the 2013 EDP, we must first determine the nature of
the farmers’ interest in the District’s water rights. But we focus solely on the District, and
take no position on other irrigation districts or the rights of their users. We analyze only
the discretion exercised by the District in adopting the 2013 EDP, do not dictate the
District’s future exercise of that discretion—including as to any action taken in response
to this opinion, and reject the superior court’s attempt to do so. And we offer no opinion
as to potential claims that a user might bring based upon such future actions by the
District.
5 We affirm the judgment and writ of mandate as to the superior court’s ruling that
the District abused its discretion in how it prioritizes apportionment among categories of
water users in the 2013 EDP, and affirm the dismissal of the breach of fiduciary duty and
taking claims. We reverse the judgment and writ of mandate in all other respects, and
remand with directions.
The District “is the sole source of fresh water for the Imperial Valley, and all of
that water comes from the Colorado River.” (Quantification Settlement Agreement Cases
(2011) 201 Cal.App.4th 758, 784 (QSA Cases).) Approximately 97 percent of the water
that the District distributes is used for agriculture. Pursuant to the Quantification
Settlement Agreement (QSA), a set of agreements reached in 2003 among the District,
other Southern California water entities, and the government, which resolved long-
standing water rights disputes, the District’s entitlement was capped at 3.1 million acre-
feet, subject to an overrun policy.4 (Id. at p. 789) Following the QSA, the District
instituted fallowing and efficiency-based conservation measures, retained experts to
assess distribution in shortage situations, and eventually adopted an equitable distribution
plan (EDP) for water shortage conditions, which apportioned water by category of user
3 The history of the District, and of water rights in the Imperial Valley generally, is extensive. We limit this initial overview and our discussions post to facts necessary for this appeal, and rely at times on prior cases that summarized these matters.
4 One acre foot is equivalent to 325,851 gallons.
6 and was revised multiple times. In October 2013, the District’s Board adopted the 2013
EDP, which unlike previous EDPs, provides for an annual apportionment that does not
require a shortage as a precondition to its implementation and is thus intended to be
permanent. Pursuant to the 2013 EDP, water would be apportioned first to non-
agricultural users, with remaining amounts apportioned among farmers using either a
straight line method or another method chosen by the District. Farmers would be able to
share water within farm units, and buy and sell water in a clearinghouse. At the same
meeting, the Board approved a hybrid historical/straight line agricultural apportionment
for 2014. As we discuss post, this meant that half the apportionment would be based on
historical use, while the other half was a set amount of water per acre.
Abatti’s family has been farming in the Imperial Valley for over 100 years. Abatti
filed a petition for writ of mandate in the Imperial County superior court in November
2013 challenging the 2013 EDP, objecting to its prioritization of other users over farmers
and the agricultural allocation in the 2013 EDP. The case was assigned to the Honorable
Diane B. Altamirano. Abatti brought claims for mandamus under Code of Civil
Procedure section 1085, declaratory relief, taking without compensation (taking), and
breach of fiduciary duty.5 The District challenged the action on multiple grounds in
demurrers and in a motion to strike, claiming that the petition was untimely, that it was
barred by a prior validation action, and that the petition did not state adequate allegations
5 Abatti also raised a claim for administrative mandamus, but subsequently dismissed that claim.
7 to support the breach of fiduciary duty and taking claims. The court struck the breach of
fiduciary duty and taking claims, and allowed the remaining claims to proceed.
Abatti filed the operative third amended petition in November 2014, seeking
mandamus and declaratory relief. The case was reassigned to the Honorable L. Brooks
Anderholt. The District brought another motion to strike, which the court denied.
The superior court held a hearing on Abatti’s petition in April 2017. In August
2017, the court issued a writ of mandate directing the District to repeal the 2013 EDP. In
its statement of decision, the court (i) determined the parties’ water rights; (ii) found that
the District had abused its discretion by prioritizing other water users over farmers and by
violating the “no injury” and appurtenancy rules; (iii) found that the District had also
abused its discretion by using straight line agricultural apportionment as the default
method in the 2013 EDP, rather than a historical method; and (iv) ruled that Abatti’s
action was not barred by the statute of limitations or by a prior validation action. The
court also issued a declaratory judgment that prohibits the District from prioritizing any
category of users over farmers, except domestic users; from using straight-line or hybrid
agricultural apportionment, rather than historical; and from entering into contracts that
guarantee water to any users other than domestic or agricultural users, during shortages.
The District appealed from the judgment and writ of mandate, and Abatti appealed
from the dismissal of his breach of fiduciary duty and taking claims. The San Joaquin
Tributaries Authority, Association of California Water Agencies, State Water Resources
Control Board (State Board), and Imperial Valley Coalition for the Fair Sharing of Water
(IVC) all applied to file amicus curiae briefs on behalf of the District. The Imperial
8 County Farm Bureau, Imperial Valley Vegetable Growers Association, and Imperial
Valley Water together applied to file a brief on behalf of Abatti. We granted the
applications, indicating that we would not consider newly raised issues. The parties filed
answering briefs.6
A. Standard of review
A writ of mandate under Code of Civil Procedure section 1085 (i.e., an ordinary
mandamus action) compels the “performance of a legal duty imposed on a government
official.” (Environmental Protection Information Center, Inc. v. Maxxam Corp. (1992)
4 Cal.App.4th 1373, 1380; see People ex rel. Younger v. County of El Dorado (1971)
5 Cal.3d 480, 491 [describing ordinary mandamus actions].)
An ordinary mandamus suit “permits judicial review of . . . quasi-legislative acts
of public agencies.” (Carrancho v. California Air Resources Board (2003) 111
Cal.App.4th 1255, 1264-1265 (Carrancho).) " ‘In reviewing such quasi-legislative
decisions, the trial court does not inquire whether, if it had power to act in the first
instance, it would have taken the action taken by the administrative agency. The
6 The parties and amicus IVC have filed a number of requests for judicial notice, as well as related declarations, oppositions, and objections. Most of the requested documents are not relevant or necessary to our determination of the issues raised in the present appeals (among other potential barriers to notice). (See People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6 (Rowland) [declining notice of irrelevant court records].) We grant judicial notice as to certain documents, as identified post. To the extent that our analysis calls for a discussion of why particular documents are not suitable for notice, we address those matters post, as well. We deny the remaining requests.
9 authority of the court is limited to determining whether the decision of the agency was
arbitrary, capricious, entirely lacking in evidentiary support, or unlawfully or
procedurally unfair.’ " (Id. at p. 1265, quoting Fullerton Joint Union High School Dist. v.
State Bd. of Education (1982) 32 Cal.3d 779, 786.)
“The appellate court reviews the trial court’s decision de novo under the same
standard.” (California Bldg. Industry Ass’n v. San Joaquin Valley Air Pollution Control
Dist. (2009) 178 Cal.App.4th 120, 130; see City of Arcadia v. State Water Resources
Control Board (2006) 135 Cal.App.4th 1392, 1409 [review is de novo, “except where the
trial court made foundational factual findings, which are binding on appeal if supported
by substantial evidence”].)7
B. Water rights in the Imperial Valley
The parties’ fundamental disagreement pertains to whether the farmers possess
water rights that entitle them to receive the amounts of water that they have historically
used to irrigate their crops, amounting to a priority over other non-domestic users, or
instead, whether their interest is a right to water service that is subject to modification by
7 We reject certain of Abatti’s assertions regarding the scope of review. First, Abatti disputes that the substantial evidence standard of review is at issue; however, application of the abuse of discretion standard will often call for an assessment of the sufficiency of the evidence to support the finding at issue. Second, Abatti argues that the superior court must conduct independent review if fundamental rights are involved. This principle applies to administrative, not ordinary, mandamus. (Dominey v. Department of Personnel Administration (1998) 205 Cal.App.3d 729, 738, fn. 5.) Finally, we disagree with Abatti’s assertion that under In Re Marriage of Arceneaux (1990) 51 Cal.3d 1130, we are bound by factual findings to which the District did not object. One must object to avoid implied findings (id. at pp. 1133-1134), but this does not mean that such findings are not subject to review for substantial evidence.
10 the District. We thus begin with a threshold issue: whether the superior court accurately
determined the nature of the farmers’ rights. This analysis requires both historical and
legal context. Among other things, that context reflects that even if some landowners in
the Imperial Valley held private water rights at some time in the past, the District is the
sole owner of appropriative water rights to Colorado River water in the Imperial Valley;
all users possess only a right to service in some form.
We first discuss the history of water rights and irrigation in the Imperial Valley.
We then address California water and irrigation law, including as applied to irrigation
districts and landowners. Finally, we address the parties’ arguments regarding the
farmers’ rights, and explain how the superior court erred in determining them.
-
Additional background
Efforts to divert Colorado River water, and disputes regarding its use, began well
over a century ago. (Arizona v. California (1963) 373 U.S. 546, 552-562 (Arizona I).)
This history was marked by “the inability of local groups or individual States to deal with
these enormous problems; the continued failure of the States to agree on how to conserve
and divide the waters; and the ultimate action by Congress at the request of the States
creating a great system of dams and public works nationally built, controlled, and
operated for the purpose of conserving and distributing the water.” (Id. at p. 552.) The
QSA Cases decision discusses this history in detail. (QSA Cases, supra, 201 Cal.App.4th
at pp. 776-792.) For our purposes, it suffices to highlight certain salient events, as well as
matters particular to California irrigation history and the District.
11 California enacted the Wright Act in 1887, which “gave irrigation districts the
power to construct and maintain irrigation and drainage systems,” and passed amended
versions in the decades to follow. (Turlock Irr. Dist. v. Hetrick (1999) 71 Cal.App.4th
948, 951.)
The District’s predecessor, the California Development Company (CDC), was
formed in the late 1890’s to irrigate the Imperial Valley with diverted Colorado River
water. (See Thayer v. Cal. Dev. Co. (1912) 164 Cal. 117, 120 (Thayer).) The CDC
posted a notice of appropriation. (Ibid.)8 Individuals also posted notices of
appropriation, and later assigned their rights to the CDC. The CDC organized mutual
water companies to facilitate distribution to stockholders. (Id. at pp. 122-123; see ibid.
[landowners could purchase stock, which entitled them to a certain amount of water per
share].) Water was also furnished to the City of Imperial and to a power company. (Id.
at p. 123.) Southern Pacific Company took a controlling interest in CDC, and later
foreclosed.
In 1902, Congress enacted the Reclamation Act, to facilitate water reclamation in
the West through the construction and operation of dams, reservoirs, and canals.
(California v. U.S. (1978) 438 U.S. 645, 648-650.) The Reclamation Act and
supplemental legislation “generally limited to 160 acres the amount of private land in
single ownership eligible to receive water from a reclamation project.” (Bryant v. Yellen
8 A notice of appropriation was an early method of asserting appropriative rights, as was actual use. (Civ. Code, § 1415; De Necochea v. Curtis (1889) 80 Cal. 397, 407-408 (Curtis).) We discuss appropriative rights in more detail, post.
12 (1980) 447 U.S. 352, 360, 368, fn. 19 (Bryant); see id. at p. 365 [parties included class
representatives for Imperial Valley landowners with more than 160 acres].) However, the
Reclamation Act provided that it would not " ‘affect any right of any State . . . or of
any . . . user of water in, to, or from any interstate stream or the waters thereof.’ "
(Arizona I, supra, 373 U.S. at p. 623.)
The District was organized in 1911. It posted a notice of appropriation in 1913,
then acquired the CDC’s water rights in 1916 from the Southern Pacific Company
following foreclosure, and absorbed the mutual water companies between 1922 and 1923.
The District has been “solely responsible since that time for the diversion, transportation,
and distribution of water from the Colorado River to the Imperial Valley.” (Bryant,
supra, 447 U.S. at p. 357, fn. 3.)9
Efforts to divert water from the Colorado River continued in California and the
other basin states—Wyoming, Colorado, Utah, New Mexico, Arizona, and Nevada.
(QSA Cases, supra, 201 Cal.App.4th at pp. 777-778.) In 1922, these states entered a
compact (1922 Compact) to, among other things, apportion water between the lower and
9 Abatti contends that farmers formed the District, while the District states that it was established by popular vote. These claims are not necessarily at odds; current law requires landowner support for a petition to form a water district, but permits all residents to vote on formation. (Choudhry v. Free (1976) 17 Cal.3d 660, 662-663 (Choudhry).) In any event, the parties do not explain how the manner in which the district was originally formed impacts its status once formed. Abatti’s amici contend that Imperial Valley landowners founded the CDC, but they cite nothing to support this assertion. (Cf. Thayer, supra, 164 Cal. at p. 121 [when CDC was organized, Imperial Valley “was unoccupied . . . and substantially the whole thereof was surveyed public land”]; Arizona I, supra, 373 U.S. at pp. 552-553 [“group of people interested” in Imperial Valley had idea to divert water].)
13 upper basins. (Id. at p. 779.) Article VIII of the compact stated that “[p]resent perfected
rights to the beneficial use of waters of the Colorado River System are unimpaired by this
compact.”
In 1928, Congress passed the Boulder Canyon Project Act (Project Act), which
incorporated the 1922 Compact, and went into effect on June 25, 1929. (Pub. L. No. 70-
642, 45 Stat. 1057, codified as amended at 43 U.S.C. §§ 617-619.) The Project Act
authorized the construction of “a dam and other works” to regulate the river and distribute
water, among other purposes. (QSA Cases, supra, 201 Cal.App.4th at p. 780.) It also
incorporated a “complete statutory apportionment intended to put an end to the long-
standing dispute over Colorado River waters.” (Ibid.) Under the Project Act, California
was limited to 4.4 million acre-feet (MAF), and certain surplus amounts. (Id. at p. 782.)
Section 6 stated that “the dam and reservoir provided for by section 1 hereof shall be
used: First, for river regulation, improvement of navigation, and flood control; second,
for irrigation and domestic uses and satisfaction of present perfected rights in pursuance
of Article VIII of said Colorado River compact; and third, for power.” (43 U.S.C.
§ 617e.)
In 1931, the District and other California water entities entered into a Seven-Party
Water Agreement. The District’s priorities entitled it to amounts not to exceed 3.85 MAF
under that agreement. In 1932, the District entered into a contract with the United States
for water delivery consistent with those priorities, the 1922 Compact, and the Project Act,
and for dam and canal construction (1932 Contract).
14 The District applied for a permit from the predecessor to the State Board in 1933,
and in 1950 it received Permit No. 7643 to appropriate up to 3.85 MAF of Colorado
River water annually. The permit indicated that the water would be for domestic and
irrigation use. The permit further provided that it was subject to vested rights and was
without prejudice to rights under appropriation. Municipal use was added to the District’s
permit in or after 2002.
Arizona sued to resolve disputes concerning the allocation of water from the
Colorado River, including whether state law would control allocation. This led to the
United States Supreme Court decision in Arizona I. (Arizona I, supra, 373 U.S. at
p. 560.) In that case, the Court held that allocation of Colorado River water is governed
by “the [Project] Act and the Secretary [of the Interior’s] contracts, not the law of prior
appropriation . . . .” (Id. at pp. 585-586.) The Court noted that “[o]ne of the most
significant limitations in the Act is that the Secretary is required to satisfy present
perfected rights, a matter of intense importance to those who had reduced their water
rights to actual beneficial use at the time the Act became effective.” (Id. at p. 584, citing
§ 6 of the Project Act.) In a 1964 decree, the Court defined “perfected right” as “a water
right acquired in accordance with state law, which right has been exercised by the actual
diversion of a specific quantity of water that has been applied to a defined area of land or
to definite municipal or industrial works. . . .” (Arizona v. California (1964) 376 U.S.
340, 341 (Arizona II).) The Court defined “present perfected rights” as rights perfected
as of June 25, 1929, the effective date of the Project Act. (Ibid.) In 1979, the Court
entered a decree setting forth the present perfected rights. (Arizona v. California (1979)
15 439 U.S. 419 (Arizona III).) The decree stated that the District had present perfected
rights in “annual quantities not to exceed (i) 2,600,000 acre-feet of diversions from the
mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive
use required for irrigation of 424,145 acres and for the satisfaction of related uses,
whichever of (i) or (ii) is less, with a priority date of 1901.” (Id. at p. 429.)10
California was able to continue using more than its allotment of Colorado River
water, until other states increased their use. (QSA Cases, supra, 201 Cal.App.4th at
pp. 773, 785.) In the 1990’s, the federal government required that California implement a
strategy to limit its water use. (Id. at p. 788.) Negotiations over water issues in Southern
California culminated in the 2003 QSA and related arrangements, which were intended to
resolve disputes among the District, other Southern California water entities, and the
government about priority, use, and water transfers. The QSA limited the District’s
entitlement to 3.1 MAF. (Id. at p. 784.)
The 2013 EDP and this litigation eventually followed, as we discuss post. The
superior court addressed the parties’ rights in its statement of decision. The court
determined that the District holds “appropriative rights to Colorado River water”; that its
property is “in trust for its use and purposes”; and that the District is required to establish
rules for equitable water distribution under Water Code section 22252.11 The court also
10 Additional proceedings followed in Arizona, but they do not impact this appeal.
11 Further statutory references are to the Water Code, unless noted. We still identify the Water Code as needed for purposes of clarity.
16 determined that the District’s users “own the equitable and beneficial interest in the water
rights,” and that the “farmers’ equitable and beneficial interest in the water rights is
appurtenant to their lands and is a constitutionally protected property right.” The court
proceeded to find that the “beneficial use of Colorado River water . . . in the early 1900s”
by farmers, including Abatti’s ancestors, perfected the District’s water rights (and,
subsequently, that the “only source” of District water is from rights acquired through
“agricultural interests in the Imperial Valley”).12
-
Applicable law
a. Overview of California water law
“California operates under a ‘dual’ or hybrid system of water rights which
recognizes both doctrines of riparian rights and appropriation rights.” (United States v.
State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 101 (United States).)
“The riparian doctrine confers upon the owner of land the right to divert the water
flowing by his land for use upon his land. . . .” (Ibid.; see Santa Barbara Channelkeeper
v. City of San Buenaventura (2018) 19 Cal.App.5th 1176, 1183-1184 (Channelkeeper)
[noting similar principles govern groundwater rights].)
Appropriative rights “confer[] upon one who actually diverts and uses water the
right to do so provided that the water is used for reasonable and beneficial uses and is
12 The parties use the term “Law of the River,” which refers to the federal obligations “that govern the allocation and use of the water of the Colorado River.” (Grand Canyon Trust v. U.S. Bureau of Reclamation (9th Cir. 2012) 691 F.3d 1008, 1019, fn. 13.) We refer instead to the specific authorities, as necessary to our discussion.
17 surplus to that used by riparians or earlier appropriators.” (United States, supra, 182
Cal.App.3d at pp. 101-102; Nicoll v. Rudnick (2008) 160 Cal.App.4th 550, 556 (Nicoll)
[" ‘Both riparian and appropriative rights are usufructuary only and confer no right of
private ownership in the watercourse.’ “].) “Although there is no private property right in
the corpus of the water . . . , the right to its use is classified as real property.” (Fullerton
v. State Water Resources Control Bd. (1979) 90 Cal.App.3d 590, 598.) Appropriative
water rights are ordinarily appurtenant to the land. (Ibid.)
Abatti emphasizes the appurtenant nature of the farmers’ rights, so we briefly
address the meaning of the term. An “appurtenance” is “something attached to something
else,” and has long been used in reference to land and easements. (Black’s Law Dict.
(11th ed. 2019); ibid. [“appurtenant rights” cross-references to “secondary easement,” one
“appurtenant to the primary . . . easement; the right to do things . . . necessary to fully
enjoy the easement”].) Accordingly, Civil Code section 662 defines an appurtenance to
land as a “thing . . . deemed to be incidental or appurtenant to land when it is by right
used with the land for its benefit, as in the case of a way, or watercourse, or of a passage
for light, air, or heat . . . .” Thus, “appurtenant” denotes that the water right or interest is
attached to land, but does not denote its type or scope. (See, e.g., Stanislaus Water Co. v.
Bachman (1908) 152 Cal. 716, 724 [contractual right to water delivery for irrigating
specific land became easement appurtenant]; City of Pasadena v. City of Alhambra
(1949) 33 Cal.2d 908, 925 [overlying water right “is based on ownership of the land and
is appurtenant thereto”]; Nicoll, supra, 160 Cal.App.4th at p. 561 [appropriative right was
appurtenant to entire property, and subsequent owner was entitled to portion thereof].)
18 Thus, an appurtenant, appropriative water right is one associated with land. A right to
water service can also be appurtenant to land (Erwin v. Gage (1964) 226 Cal.App.2d 189,
194 (Erwin)), and as discussed in more detail post, that is the appurtenant right held by
the farmers.
“Initially, rights to appropriate water were acquired by actual diversion and use of
the water.” (United States, supra, 182 Cal.App.3d at p. 102; see Curtis, supra, 80 Cal. at
pp. 407-408 [addressing notice of appropriation as another way to assert appropriative
rights].) “Beginning in 1914, however, a statutory scheme has provided the exclusive
method of acquiring appropriation rights” in California. (United States, at p. 102.) An
application is made to the State Board “for a permit authorizing . . . the taking and use of
a specified quantity of water.” (Ibid; see § 1201, et seq.)
“Superimposed on the dual system for defining water rights are two limiting
principles. First is the rule of reasonableness: ’the overriding constitutional limitation
that the water be used as reasonably required for the beneficial use to be served.’ "
(Channelkeeper, supra, 19 Cal.App.5th at p. 1184; see Cal. Const. Art. X, § 2,
[“conservation of . . . waters is to be exercised with a view to the reasonable and
beneficial use thereof in the interest of the people and for the public welfare”];
Channelkeeper, at p. 1184 [right to use water is limited to that " ’ reasonably required for
the beneficial use to be served’ “].) Reasonable use is “dependent upon not only the
entire circumstances presented but varies as the current situation changes.”
(Environmental Defense Fund v. E. Bay Mun. Util. Dist. (1980) 26 Cal. 3d 183, 194.)
Beneficial uses are “categories of water use.” (Channelkeeper, at p. 1185.) Under Water
19 Code section 106, it is “the established policy of this State that the use of water for
domestic purposes is the highest use of water and that the next highest use is for
irrigation.” Other beneficial uses include municipal, industrial, and aquaculture. (Cal.
Code Regs., tit. 23, § 659, et seq.)
A second limit on water rights is “the public trust doctrine.” (Channelkeeper,
supra, 19 Cal.App.5th at p. 1184.) This doctrine derives from the principle that water is a
shared resource, and has been applied to find that " ‘parties acquiring rights in trust
property,’ such as water flowing in a stream, ‘generally hold those rights subject to the
trust . . . .’ " (Id. at p. 1186.)
b. Irrigation districts
The current Irrigation District Law was enacted in 1943. (Wat. Code, § 20500, et
seq.) Section 22437 provides that “[t]he title to all property acquired by a district is held
in trust for its uses and purposes.” Earlier irrigation acts contained similar provisions.
(Wright Act, § 13 [property acquired by the district would be held “in trust” and
“dedicated and set apart to the uses and purposes” under the act]; Wright-Bridgford Act,
§ 29 [accord].) Property includes “all real and personal property, including water, water
rights, works, franchises, concessions and rights.” (§ 20529; see ibid. [except as applied
to assessments].)
“The ultimate purpose of a district organized under the Irrigation Act is the
improvement, by irrigation, of the lands within the district.” (Jenison v. Redfield (1906)
149 Cal. 500, 503 (Jenison).) Their core purposes include supporting other beneficial
uses as well. (Crawford v. Imperial Irr. Dist. (1927) 200 Cal. 318, 329 (Crawford)
20 [“prime object and purpose” is to “provide water for the use of its inhabitants and land
owners for irrigation and domestic purposes”]; City of Modesto v. Modesto Irrigation
Dist. (1973) 34 Cal.App.3d 504, 507 (Modesto) [district’s “main purpose is to develop,
preserve and conserve water for the beneficial use of the inhabitants”].)
A primary duty of irrigation districts is to distribute water. Statutory provisions
govern distribution. Section 22252, the provision under which the District distributes
water, provides: “When any charges for the use of water are fixed by a district the water
for the use of which the charges have been fixed shall be distributed equitably as
determined by the board among those offering to make the required payment.” Irrigation
districts have other responsibilities as well, including drainage, electrical power, and
flood control. (§ 22075, et seq.)
Multiple provisions of the Water Code authorize irrigation districts to carry out
their purposes and duties and accord them broad discretion in doing so. (See, e.g.,
§ 22075 [“A district may do any act necessary to furnish sufficient water in the district
for any beneficial use”]; § 22076 [“A district may do any act in order to put to any
beneficial use any water under its control”]; § 22225 [“Each district has the power
generally to perform all acts necessary to carry out fully the provisions of this division”];
see also § 22437 [“The district may hold, use, acquire, manage, sell, or lease the property
as provided in this division”]; see Baldwin Park Cnty. Water Dist. v. Cnty. of Los Angeles
(1962) 208 Cal.App.2d 87, 90 (Baldwin Park) [“Legislature has given broad powers to
irrigation districts with respect to the control and distribution of water”]; Crawford,
supra, 200 Cal. at p. 329 [powers are “broad and comprehensive”].)
21 Finally, California courts have long held that irrigation districts operate in a public
capacity. (See Jenison, supra, 149 Cal. at p. 503 [irrigation district “when formed is a
public corporation”]; Clough v. Compton-Delevan Irr. Dist. (1938) 12 Cal.2d 385, 388
(Clough) [addressing Wright-Bridgford Act § 29, regarding property being held in trust:
“The property is by this language impressed with the public use”]; Allen v. Hussey (1950)
101 Cal.App.2d 457, 467 (Allen) [irrigation district is “an active trust for public uses and
purposes”].)
c. Irrigating landowners
In Merchants’ National Bank of San Diego v. Escondido Irrigation District (1904)
144 Cal. 329 (Merchants), the California Supreme Court held that landowners have a
beneficial and equitable interest in the irrigation district’s property, consisting of a right to
use or service:
“[T]he [irrigation district] is distinguished from ordinary municipal corporations by the fact that ’the legal title,’ only of the property of the corporation is vested in the district, ‘in trust for the uses and purposes set forth in [the] act’; and that the beneficiaries of the trust[,] who, upon familiar equitable principles, are to be regarded as the owners of the property[,] are the landowners in the district . . . and in whom, indeed, is vested . . . in each, the right to the several use of a definite proportion of the water of the district, and in all, in common, the equitable ownership of its water rights . . . as the means of supplying water. (Stats. 1887 . . . , secs. 11, 13 [Wright Act].)”
(Id. at p. 334; ibid. [rejecting lender’s claim to district’s water system], limited on other
grounds in La Mesa, Lemon Grove & Spring Val. Irr. Dist. v. Halley (1925) 197 Cal. 50,
59-60.) The Merchants court further explained that these rights are indistinguishable
22 “from other private rights,” and are protected under the state and federal constitutions.
(Merchants, at p. 334.)
The California Supreme Court applied these principles in subsequent cases. (See,
e.g., Hall v. Sup. Ct. (1926) 198 Cal. 373, 376-378, 383 (Hall) [affirming injunction
barring landowner Imperial County judges from presiding over an action for damages
against a water company whose interests were purchased by the District; as “equitable
owners” of District property, they had a proprietary interest in the case].) In the Ivanhoe
Irrigation District litigation, the California Supreme Court affirmed the rejection of a
federal contract that incorporated the Reclamation Act’s 160-acre limit. (Ivanhoe Irr.
Dist. v. All Parties (1957) 47 Cal.2d 597, 606-607, 625 (Ivanhoe I), rev’d on other
grounds sub nom. Ivanhoe Irr. Dist. v. McCracken (1958) 357 U.S. 275 (Ivanhoe II).)
The Court reasoned that the state functioned as a trustee of its domestic waters for the
benefit of users, and that under state law, the right to use water could not be limited based
on acreage; the Reclamation Act prohibited interference with state law; and the interest of
the United States was thus subject to the terms of the trust. (Ivanhoe I, at pp. 625-628,
637-638.) In reaching this conclusion, the Court observed that “[i]t has long been the
23 established law of the state that an irrigation district is trustee for the landowners,” citing
Merchants and other cases. (Id. at p. 625.)13
In Bryant, the United States Supreme Court addressed the relationship between
irrigation districts and landowners in concluding that the Reclamation Act’s 160-acre cap
limit did not apply to District lands for which the District held present perfected rights.
(Bryant, supra, 447 U.S. at p. 356.) The Court rejected the Ninth Circuit’s view that
“landowners . . . were merely members of a class” for whom the water was held in trust,
and that the 160-acre limit “would merely require reallocation . . . .” (Id. at p. 369.) The
Court determined that the Ninth Circuit had failed to take adequate account of Arizona, in
which the Court had “recognized that § 6 of the Project Act, requiring satisfaction of
present perfected rights” was a limit on the government’s power. (Id. at pp. 370-371.)
The Court explained:
“It may be true . . . that no individual farm in the District has a permanent right to any specific proportion of the water held in trust by the District. But there is no doubt that prior to 1929 the District, in exercising its rights as trustee, delivered water to individual farmer beneficiaries without regard to the amount of land under single ownership. . . . Indeed, as a matter of state law, not only did the District’s water right entitle it to deliver water to the farms in the District regardless of size, but also the right was equitably owned by the beneficiaries to whom the District was obligated to deliver
13 The United States Supreme Court reversed, holding that the federal contract incorporating the Reclamation Act limit there was valid, for reasons not pertinent to this appeal. (Ivanhoe II, at p. 278.) On remand, the California Supreme Court repudiated the trust theory as to the state, but did not revisit the relationship between the irrigation district as trustee and its users. (Ivanhoe Irr. Dist. v. All Parties (1960) 53 Cal.2d 692, 715-716 (Ivanhoe III).)
24 water.” (Id. at p. 371, citing Ivanhoe I, supra, 47 Cal.2d at pp. 624- 625.)
(See Bryant, at p. 371, fn. 23 [landowners have “legally enforceable right, appurtenant to
their lands, to continued service by the District,” citing, inter alia, Erwin, supra, 226
Cal.App.2d at pp. 194-195]; see also Bryant, at p. 356, fn. 1 [District is “empowered to
distribute and otherwise administer water for the beneficial use of its inhabitants”].)14
At the same time, the California Supreme Court has held that landowner water
rights are subordinate to District purposes. (Jenison, supra, 149 Cal. at pp. 503-504
[“The right of a landowner of the district to the use of the water . . . is a right to be
exercised in consonance with and in furtherance of such ultimate purpose,—viz. for the
improvement by irrigation of lands within the district,—and in no other way. His right is
always in subordination to the ultimate purpose of the trust”], italics added).
The foregoing authorities reflect that irrigating landowners like Abatti possess an
equitable and beneficial interest in the District’s appropriative water rights that is
appurtenant to their lands and consists of a right to service.
14 The Court observed that the District is required “to apportion water . . . ratably to each landowner in accordance with his share of the total assessments,” citing section 22250. (Bryant, at p. 371, fn. 23.) The Court was referring to an assessment system that is no longer in use, and we do not view this statement as impacting its larger analysis. Separately, we reject amicus State Board’s contention that Bryant mistakenly relied on the trust theory repudiated in Ivanhoe III. The Court noted all three Ivanhoe decisions, and Ivanhoe III did not repudiate the theory as to irrigation districts. (Bryant, supra, 447 U.S. at pp. 371, fn. 23, 377; Ivanhoe III, supra, 53 Cal.2d at pp. 715-716.)
25 3. Analysis
Having reviewed the historical and legal landscape, we now turn to the parties’
arguments and the superior court’s conclusions regarding the nature of farmers’ rights.
a. Parties’ arguments regarding farmers’ rights
We begin with Abatti, who makes a number of arguments to support his view of
farmers’ rights.15 None has merit.
As a preliminary matter, Abatti contends that the District’s purpose is to enable
landowners to irrigate and that its powers are “narrower” than those of other municipal
corporations. However, the District’s purposes and powers extend beyond irrigation, as
discussed ante, and it is obligated to provide equitable service to all beneficial users; the
authority held by other municipal entities is irrelevant. (See Crawford, supra, 200 Cal. at
pp. 325-326, 329 [irrigation district is not a municipal corporation, but it is a " ‘public
corporation for municipal purposes,’ " with broad powers]; see Modesto Irrigation Dist. v.
Pacific Gas and Elec. Co. (N.D. Cal. 2004) 309 F.Supp.2d 1156, 1164-1165
[” ‘municipal corporation’ label is neither talismanic nor particularly instructive”].)
15 We limit our discussion of Abatti’s arguments to issues properly raised in his combined brief. The District and Abatti briefed the parties’ rights in connection with the District’s appeal. However, Abatti devoted much of his cross-appellant’s reply brief to the issue, including addressing the reply portion of the District’s combined brief, under the guise of “establishing the . . . water rights” to show that the breach and taking claims have merit. We do not consider these points. (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 268 [cross-appellant " ‘may not use its cross-appellant’s reply brief to answer points raised in the appellant’s reply brief.’ “].) We also do not consider arguments newly raised in the amicus answer briefing.
26 Turning to Abatti’s central argument, he contends that the farmers have vested,
appurtenant property rights to use water for their “reasonable irrigation needs” and in
their “usual manner,” and that they should have priority over other non-domestic users.
As noted ante, Abatti is essentially arguing that farmers have a right to receive the
amounts of water that they have historically used to irrigate their crops. This argument is
contrary to both the case law regarding irrigation districts and their users, and the
principle of reasonable use. (See Merchants, supra, 144 Cal. at pp. 333-334 [landowners
have right to “several use of a definite proportion of the water of the district, and in all, in
common, the equitable ownership of its water-rights”]; Modesto, supra, 34 Cal.App.3d at
p. 507 [district’s purpose is to “develop, preserve, and conserve” water for “beneficial use
of the inhabitants”]; Bryant, supra, 447 U.S. at p. 371 [no farm in the District has
“permanent right to any specific proportion of the water”]; cf. Allegretti & Co. v. County
of Imperial (2006) 138 Cal.App.4th 1261, 1279 (Allegretti) [overlying user’s “claim to an
unlimited right to use as much water as it needs to irrigate flies in the face” of reasonable
use standard].)
Abatti’s position appears to be that historical use by the farmers’ ancestors
established their vested rights to continue to receive the amounts of water that they have
been using to meet their irrigation needs, as equitable and beneficial owners of
appurtenant interests in the District’s water rights, and that these vested rights have been
preserved, including in the District’s permit. He relies on authority holding that
appurtenant water rights are measured by reasonable use. However, Abatti does not
establish that the farmers possessed any such vested rights in the first place.
27 The farmers may have a vested, appurtenant right, but that right consists of an
appurtenant right to service, not an appurtenant water right. Erwin recognized this
distinction in rejecting a shareholder effort to block a canal company settlement. (Erwin,
supra, 226 Cal.App.2d at p. 192.) The court found that the shareholders’ position
“presuppose[d] that it is the water right itself . . . that is appurtenant to the land of each
shareholder,” but that the real issue was “whether it is the water right or simply the right
to receive water, that is appurtenant . . .” (Ibid.) Looking to the company’s history of
conveyances, the court concluded that the shareholders “own a right to have water
delivered . . . .” (Id. at pp. 193.)
Similarly, here, the farmers have an appurtenant right to water service, rather than
an appurtenant water right, dictated by the history of water rights in the Imperial Valley
and by the law governing irrigation districts.16 Present perfected rights based primarily
on agriculture do form a basis for the District’s entitlement to Colorado River water,17
but as the United States Supreme Court’s decree in Arizona made clear, those rights are
held by the District, not the farmers. (Arizona III, supra, 439 U.S. at p. 429.) And it is
the District that holds title to the appropriative rights to the Colorado River water that
16 Cf. Empire West Side Irrigation Dist. v. Lovelace (1970) 5 Cal.App.3d 911, 913 [distinguishing Erwin in concluding landowners could challenge agreement between irrigation districts, where it was previously determined that one of the water entities was trustee for water rights that remained with certain lands].)
17 The District’s present perfected rights entitle it to the lesser of 2.6 MAF or enough water to service certain acreage. (Arizona III, supra, 439 U.S. at p. 429.) The Seven Party Agreement allows for 3.85 MAF, which was limited to 3.1 MAF under the QSA.
28 comes into the Imperial Valley; as discussed post, Abatti does not establish the farmers
hold any pre-1914 rights. Thus, the farmers do not hold traditional appropriative rights
entitling them to “divert[] and use[] water” (United States, supra, 182 Cal.App.3d at
pp. 101-102), other than as beneficial owners of the District’s rights. That beneficial
ownership entitles them only to water service from the District.
In turn, Abatti’s reliance on the principle that “[t]he appurtenant water right is
‘measured by the amount of water that is reasonably and beneficially used on the land’ " is
misplaced. It is true that with appropriative water rights acquired by use, “the extent of
the right . . . is limited to the amount of water applied to a beneficial use” and “reasonably
necessary” for that use. (Haight v. Costanich (1920) 184 Cal. 426, 431; cf. 43 U.S.C.
§ 372 [beneficial use is the measure of the right to use water acquired under the
Reclamation Act].) Reasonable use is also a limit on all water rights, as discussed ante.
(Channelkeeper, supra, 19 Cal.App.5th at p. 1184.) But, again, the farmers do not hold
appurtenant water rights; they hold appurtenant rights to water service.
Having failed to establish any entitlement to a particular level of continued water
service, Abatti’s position amounts to an assumption that the appurtenant nature of the
farmers’ right to service—the fact that it is linked to their land—renders it superior to
other users’ rights to water service. We are not persuaded. All beneficial users have a
right to service, consistent with the District’s statutory obligations to equitably distribute
29 water. Although some users may warrant different treatment in that distribution, the right
itself remains one to water service.18
However, we reject the District’s argument that “a constitutionally protected
property right—as opposed to continued service of water—is inconsistent with statutory
and extensive case law.” The District presents a false dichotomy. The farmers are
beneficial owners of the District’s water rights, which entitles them to a right to service,
and that right is constitutionally protected. Thus, the farmers are entitled to appropriate
consideration in the District’s equitable distribution of water to all of its users. The cases
cited by the District illustrate that users cannot acquire legal ownership of district
property, including water rights, or receive water outside the district—not that farmers
lack beneficial ownership interests. (See, e.g., Glenn Colusa Irrigation District v.
Paulson (1925) 75 Cal.App. 57, 69, 71-72 [“no private estate can be created in property
devoted to a public use”]; Hildreth v. Montecito Creek Water Co. (1903) 139 Cal. 22, 24,
29 [beneficiaries had no rights to private ownership of water]; Madera Irrigation District
v. All Persons, Etc. (1957) 47 Cal.2d 681, 691-693, rev’d on other grounds sub nom. in
18 We recognize that deprivation of a beneficial ownership right could potentially give rise to remedies different from remedies available for deprivation of other rights, but this does not change the nature of the entitlement itself. Lindsay-Strathmore Irr. Dist. v. Wutchumna Water Co. (1931) 111 Cal.App. 688, cited by Abatti here, does not aid him. The case involved an irrigation district’s entitlement to a particular share of water from a water company, not a water user’s entitlement to a particular amount of water from an irrigation district, and is otherwise distinguishable. (Id. at pp. 701-702 [after irrigation district purchased stock in water company, company passed resolution limiting water deliveries; resolution was discriminatory and void insofar as it interfered with district’s “right . . . to receive the proportion of water to which it was entitled by virtue of its shares of stock”].)
30 Ivanhoe II [owners of lands excluded from district could not receive water, as there was
no right to receive water outside the district; indicating nothing therein was inconsistent
with cases holding that irrigation district members are “beneficial owners” of its water
rights].)19
In what appears to be a separate effort to diminish the nature of farmers’ rights, the
District contends that “the Irrigation District Law does not create a trust in the classic
probate sense.” Irrigation districts hold their property in trust under the Water Code, not
the Probate Code, but landowners still hold a beneficial interest in that property.
(§ 22437; Merchants, supra, 144 Cal. at pp. 333-334.)20
19 The District also cites section 22262, which provides that “[n]o right in any water or water right owned by the district shall be acquired by use . . . .” It elsewhere argues that the section underscores that historical use cannot ripen into entitlement. Abatti contends that the section “can only be read to prevent new water users” from claiming an interest. Neither party provides any statutory analysis, and we do not address these points further. We note that water service has been recognized as a property interest in other contexts. (Cf., e.g., Erwin, supra, 226 Cal.App.2d at p. 194; De Boni Corp. v. Del Norte Water Co. (2011) 200 Cal.App.4th 1163, 1167-1168 [“shareholder’s stake in a mutual water company is a property interest,” with consumers entitled to receive water].)
20 We also reject the District’s reliance on Clough, supra,12 Cal.2d at pp. 388-389 to contend that “it is futile to attempt to discover the ‘beneficiaries . . . .’ " Clough was one of multiple cases addressing the rights of bondholders in irrigation districts. (Id. at pp. 387-388; El Camino Irr. Dist. v. El Camino Land Corp. (1938) 12 Cal.2d 378, 380- 381; Provident v. Zumwalt (1938) 12 Cal.2d 365, 368.) The Court disagreed that bondholders could be exclusive beneficiaries and thus rejected partition of district land as a remedy (Clough, at pp. 388-389), but the Court confirmed elsewhere that a trust must have beneficiaries. (Zumwalt, at p. 375 [“It would be manifestly absurd to say that although property is held in trust, none of the benefits of the trust accrue to the beneficiaries”].)
31 Abatti raises two related issues here. First, Abatti contends that because the
District’s predecessor, the CDC, held water rights for private use, those rights remained
private following establishment of the District. The District responds that it is a public
entity, and that there was no reservation of title at the time it purchased from the Southern
Pacific Company the water rights that the CDC had previously held. We need not delve
into the contours of title reservation, but we agree with the District’s general point: an
irrigation district is public. Absent some indication that property conveyed to the District
was to remain separate and private, we see no basis for treating it as such. (Erwin, supra,
226 Cal.App.2d at pp. 193-194 [canal company shareholders who possessed only right to
service could not block settlement; history “reflect[ed] no reservation of title by the
owners who conveyed the various water rights”].)
The cases that Abatti cites do not support his position. Thayer confirmed that the
CDC had not dedicated water to public use, in reversing a judgment requiring water
delivery to a landowner who did not own mutual water company stock. (Thayer, supra,
164 Cal. at pp. 121-124, 131, 138.) That case was filed in 1910, before the District was
even formed, and decided in 1912; the Thayer court thus had no occasion to address the
District’s later acquisition of the CDC’s water rights and its absorption of the water
companies. (Id. at p. 120.) Abatti’s reliance on cases holding that one who acquires
water rights must maintain water service is likewise misplaced. (See, e.g., City of South
Pasadena v. Pasadena Land & Water Co. (1908) 152 Cal. 579, 586-588 (South
Pasadena) [transfer of water rights from company to city did not relieve service
obligation; mandamus could “compel the continuance of the distribution, in the usual and
32 proper manner”]; Brooks v. Oakdale Irr. Dist. (1928) 90 Cal.App. 225, 240-241 [grantees
of water system had obligation to continue same service].) The issue is not whether the
District had to continue to provide service upon acquiring its water rights; that appears to
be undisputed. Hall is simply inapposite. (Hall, supra, 198 Cal. at p. 383 [landowner
judges had proprietary interest].)21
Second, Abatti contends that, “the [District’s] [f]armers have pre-1914 water
rights” (i.e., appropriative rights acquired through use or notice prior to the current