county requests venue change siskiyou 090610

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http://www.siskiyoudaily.com/news/x863076130/County-requests-venue-change-in-landmark-water-case

County requests venue change in ‘landmark’ water case

by David Smith, Siskiyou Daily News September 3, 2010

California — A case expected by both sides to set a landmark precedent in California water law may be considered in Siskiyou County, with the county recently filing for a change of venue in Environmental Law Foundation, Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources v. State Water Resources Control Board and the County of Siskiyou.

The case was brought by the groups in June, requesting that the Superior Court of Sacramento grant them a writ mandating that the State Water Resources Control Board (SWRCB) and Siskiyou County halt groundwater permitting near the Scott River until the potential impacts are analyzed and a management plan is made.

The petitioners base their argument on the assumption that the two agencies have a duty under the Public Trust Doctrine (PTD) to manage and regulate groundwater that is not being performed.

Cited by petitioners is the 1983 case National Audubon Society v. Superior Court, in which the California Supreme Court declared that the PTD, traditionally utilized by states to protect public resources in navigable waters, extended to non-navigable tributaries as well.

The protected public resources include navigation, commerce and fisheries under the PTD.

To date, the PTD has not been extended to groundwater resources, which, under the California Water Code, typically fall under the jurisdiction of the individual counties.

The issue of jurisdiction is raised in the county’s brief, filed Aug. 9, which states that the county believes that the Siskiyou County Superior Court has exclusive jurisdiction over the case. It is argued in the brief that since the Siskiyou court adjudicated water rights for the Scott River in 1980, it holds jurisdiction “to hear any claims attempting to modify the rights.”

“Since the Superior Court for the County of Siskiyou has issued a final decree adjudicating all water rights in the Scott River, including the rights to interconnected groundwater, and has retained continuing jurisdiction ‘of the subject matter hereof,’ including jurisdiction to ‘change and modify’ the rights, the Superior Court for the County of Siskiyou is the proper court to hear the petitioners’ claims, because it has reserved jurisdiction to modify the rights in the 1980 decree, and therefore [the Sacramento Superior Court] is not the proper court to hear the case,” the brief reads.

According to the brief, once the issue of venue is settled, the county plans to make a filing asking the court to dismiss the case on the grounds that the petitioners have not stated a valid cause of action.

The county requests that the change of venue hearing take place on or after Nov. 5.