THE STONY CREEK WATER WARS
Glenn County - Tehama County - Colusa County , California.
(c) 2001, Mike Barkley
CALIFORNIA STATE WATER RESOURCES CONTROL BOARD position on their Stony Creek jurisdiction, if any.

[This is one of the most critical issues involving the Stony Creek Watershed -- with the U.S. District Court having exclusive jurisdiction over Stony Creek water rights and flows, where does the State Water Commission and its successors (ultimately the SWRCB) get its jurisdiction to continue considering and granting appropriations, etc. The question has been muddied further by Reclamation playing both ends against the middle (for several years without public notice) in that while the case was progressing, it used the case to hold the Riparians at bay while seeking its Stony Gorge Dam appropriations, and after the Decree was issued Reclamation used it to suppress competition for Black Butte Dam appropriations:

Arguments in favor of the U.S. District Court having exclusive jurisdiction:

• Angle Decree appearing on its face to grant all possible rights:
  • ( Harsh language for all defendants -- is an appropriation a "claim" and thus are we barred from seeking appropriations? If so, then why not everyone else? )
  • Year-round appropriation for East Park
  • Year-round appropriation for Grindstone Reservation
  • Differing Irrigation Season dates
  • Irrigation ban for Riparian lands not yet irrigated
  • GCID IRRIGATION SEASON, p. 169: "that the irrigation season for the lands of said District is hereby defined as and adjudged to be the period beginning on March 15th and ending on October 1st of each year;" and its right to divert 20,315 acre-feet of water, or less if less is available after all others have taken their share (?) is only during that season. [provisions are complex -- there are three sections to this part: 1) p. 168, Appropriation Rights of Glenn-Colusa Irrigation District, which contain 2) p. 170, the Glenn-Colusa Stipulation, which contains 3) p. 171, modifications of the September 24, 1907 agreement between GCID's predecessor and the U.S. Government. Provisions are somewhat contradictory, with the Decree's being more limiting.
  • Irrigation season ENTITLEMENT IS FOR THE WHOLE YEAR, not just the irrigation season: p. 173, "...that in each instance in which the irrigation season is established and adjudged herein for any group of lands or territory in the Stony Creek watershed, such season constitutes the time of the year during which water is and can be applied with profit and benefit to the irrigation of the lands in question; that the date of the beginning and the terminaton of such season is approximate in the sense that lands of special character, or which are dependent upon stream flows which vary from the more usual, occasionally may require, or can be beneficially served by, the diversion and use of water somewhat, before the beginning or after the close of such irrigation season; that in such instance diversions may be made outside of the irrigation sea-
    
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    son, provided that the amount diverted as against any of the parties hereto from the natural flow for direct application to such lands during the calendar year shall not exceed the quantity in acre-feet per acre allowed to be thus diverted herein during an irrigation season under any particular right; that where amounts or rates of diversions or flows of water are limited in this decree to stated figures for each irrigation season, such limitations apply as well to the entire calendar year containing said irrigation season;..."
  • IRRIGATION SEASON TOTAL LIMIT: p. 175, "...when permitted by said Water Master, divert a larger head or flow into his ditch for short periods of time in lieu of the smaller flow allowed to him under his said right, providing always that such use shall not exceed for the irrigation season the amount in acre-feet herein specified and allowed to be diverted from the stream for his lands;..."
  • WATER MASTER POWER TO CUT OFF WATER: p. 176, "...and if any proper orders, rules or directions of such Water Master, made in accordance with and for the enforcement of this decree, are disobeyed or disregarded he is hereby empowered and authorized to cut off the water from the ditch then being used by the person so disobeying or disregarding such proper orders, rules or directions;"
  • Final summation, ENJOINED AND RESTRAINED FROM ASSERTING OR CLAIMING [ WITHOUT LIMIT TO ANY IRRIGATION SEASON, AND THUS FOR THE ENTIRE YEAR AND AS TO ALL STONY CREEK FLOWS ], p. 177:
    "That each and all of the parties to whom rights to water are decreed herein (and the persons, estates interests and ownerships represented by such thereof as are sued in a representative capacity herein), their assigns and successors in interest, servants, agents, attorneys and all persons claiming by, through or under them and their successors, are hereby forever enjoined and restrained from asserting or claiming--
    
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    as against any of the parties herein, their assigns or successors, or their rights as decreed herein--any right, title or interest in or to the waters of the Stony Creek or its tributaries, or any thereof, except the rights specified, determined and allowed by this decree, and each and all thereof are hereby perpetually restrained and enjoined from diverting, taking or interfering in any way with the waters of the Stony Creek or its tributaries or any part thereof, so as in any manner to prevent or interfere with the diversion, use or enjoyment of said waters by the owners of prior or superior rights therein as defined and established by this decree; that nothing herein shall prejudice the rights of any of the parties hereto or of their grantees, assigns or successors, in interest, under any transfer or legal succession in interest after the commencement of this action, to any of the rights hereby adjudicated; that except as hereinbefore mentioned or otherwise stated, the provisions of this decree shall bind, and inure to the benefit of, the grantees, assigns and successors in interest of the owners of rights and parties hereto, whether substituted as parties or appearing in this case or named herein or not;...."
    
    [Does ASSERTING OR CLAIMING including applying to the SWRCB for appropriations? How about for an appropriation carved out of Orland Project or GCID entitlements based on waste by these agencies?]
    
    
• ( Reclamation demanding contempt of court charges for stock pond diversions )
• ( Menasian letters )
• Stonyford Municipal Water underflow litigation, and deference by Superior Court of Colusa County to the U.S. District Court's Angle jurisdiction
• ( Water Master prosecuting Gregory for irrigating out of season, a month early for him but within the Orland Season )
• Avoidance by SWRCB of discussing riparian rights in decisions such as D1042.
• Failure of SWRCB to recognize rights expressed within the Decree for unirrigated Riparian lands, thus divesting them of rights granted by the Decree
• United States Forest Service Fouts Springs EIS

Arguments against the U.S. District Court having exclusive jurisdiction:

• SWRCB position as stated in the letter below
• Continuing duplicitous appropriations by Reclamation
• Appropriation approvals, however conditional, for upstream stock ponds
• Acceptance by the U.S. District Court of the SWRCB analysis of Stony Creek Stonyford Underflow
• History of SWRCB actions not questioned in U.S. District Court until the Stonyford Municipal Water Supply controversy.
• History of SWRCB caution expressed in its decisions with regard to any rights covered by the Decree

Ramifications of the U.S. District Court having exclusive jurisdiction:

• Reclamation's Stony Gorge appropriation is invalid and the Dam violates the Decree.
• All Black Butte Dam appropriations are invalid and the Dam violates the Decree.
• All Stock Pond licenses or appropriations are invalid and they violate the Decree.
• All other SWRCB appropriations, decisions, licenses, resolutions, etc., regarding Stony Creek water flows, underflows, or water rights are invalid.
• DWR has no authority to investigate the Thomes-Newville Project.
• Proposals to modify lower Stony Creek must gain U.S. District Court approval.
• SWRCB must ask the District Court to validate any of its prior Stony Creek actions or authorize future Stony Creek SWRCB actions.
• Jurisdiction over the 6,700,000 acre-foot Stony Creek Fan Underflow is exclusively with the United States District Court.

An as-yet un-located piece of the puzzle is the June 24, 1922 settlement between the U.S. and the State of California in the Angle case. ] [This is a transcription of a letter on file at the SWRCB. I've made every effort to present the content precisely, but not the form.] - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - [printed stationery]
STATE OF CALIFORNIA
GEORGE DEUKMEJIAN, Governor
STATE WATER RESOURCES CONTROL BOARD
PAUL R. BONDERSON BUILDING
901 P STREET
P.O. BOX 100
SACRAMENTO, CALIFORNIA 95801 [end of printed stationery]
(916) 324-5757

January 27, 1986

Paul R. Minasian
1681 Bird Street
P. 0. Box 1679
Oroville, CA 95965-1678

Dear Mr. Minasian:

APPLICATION 27382 OF COLUSA COUNTY FOR DIVERSION OF UNDERFLOW FROM STONY CREEK

This is in response to your letter dated November 22, 1985 to Mr. Samuel Fuller. Mr. Fuller has left the Board and Mr. Keith Bieg has been assigned Application 27382.

In your letter you complained that you were not on the Board's mailing list for the above application. Since your client is not a party to the proceeding, notice is not required. However, a representative of your client, Orland Water Users Association, is and has been on the mailing list. Nevertheless, we have added your name as well to the mailing list.

Your client is not a protestant to Application 27382 and the only protestant who requested a hearing, represented by Martin McDonough, have stipulated with the County of Colusa to withdraw their protests and their requests for hearing. Consequently no hearing will be held.

You questioned the Board's ability to consider Application 27382 in light of the Angle Decree. The Board is the entity charged with allocating the use of water in this state. The existence of adjudicated water rights is taken into account in the Board's determination under Water Code §1200 et seq. whether water is available for appropriation. If water is available in excess of that which has already been allocated -- whether by the courts, operation of law, or permit -- then the Board may approve a requested appropriation.

Because-the proposed appropriation is within the adjudicated area, the county may, in addition to acquiring a permit from the State Board, have to obtain authorization from the Court to exercise a new permitted right. However, the recognition of the county's right within the Angle Decree is a matter between the county, the court, and other holders of adjudicated rights under the decree. It is not a matter for the State Board to pursue. Further, since the

Paul R. Minasian 2. January 27, 1986

court does not allocate new rights but merely recognizes existing ones, the question of court recognition is a matter which, in the proper course of events should follow, not precede, the Board's action on the water right application.

I hope this answers your questions. If you have further questions, please call me at (916) 324-5757.

Sincerely,

/s/ Barbara J. Leidigh

Barbara J. Leidigh
Staff Counsel II

cc: Keith Bieg
Water Right Files (A-27382)

[The comments in the second to the last paragraph are interesting. Do they say:

• the Court recognizes existing rights, but
• the SWRCB grants new ones?

and that's the difference on which SWRCB is correct in exercising its jurisdiction under Water Code §1200 et seq. ? But if the District Court granted or thought it was granting all the rights there were to grant, are there no "new ones"?

It may ultimately be vital to hear the District Court speak to these issues rather than have it ignore the problem to the detriment of the Riparians as it has for 80 years. Part of the problem is that the District Court has only been peripherally interested in these issues, whereas the SWRCB exists to solve them.]

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--Mike Barkley, 161 N. Sheridan Ave. #1, Manteca, CA 95336 (H) 209/823-4817
mjbarkl@inreach.com