Restraining Order Halts Drought Curtailment

The Sacramento Superior Court of California on July 10, 2015, granted a TRO temporarily restraining the California State Water Resources Control Board’s drought curtailment action against certain senior water rights holders. The court held that the Board’s action violates due process rights and would cause irreparable harm.

On May 1, 2015 and June 12, 2015 the California State Water Resources Control Board issued notices of curtailment to West Side Irrigation District (West Side), Central Delta Water Agency (CDWA) and South Delta Water Agency (SDWA), respectively. The notices declared that the recipients were not entitled to divert water because the water was needed to meet the needs of senior water right holders.

West Side, CDWA and SDWA filed an ex parte application seeking a stay or temporary restraining order/order to show cause. While a petition for reconsideration was pending with the Board regarding the May curtailment letter, the Superior Court found that the letter was subject to a judicial determination as to whether it constituted a violation of the petitioner’s due process rights. It noted that there was the administrative process did not have to be exhausted before a temporary restraining order could be issued because the circumstances were such that irreparable harm would occur to the petitioners absent a temporary restraining order. Moreover the court found every day the letter remained in effect constituted a violation of the petitioners’ constitutional rights, so that a temporary restraining order was appropriate while the administrative process was proceeding.

With regard to the June curtailment letter, CDWA and SDWA were found to have adequately plead that the agencies’ landowners exercised pre-1914 appropriative and/or permit licenses rights that were subject to the directives of that letter, providing the petitioners standing to bring the ex parte application.

The court viewed the curtailment letter’s language, that which provided that the recipients were not entitled to divert water because that water was necessary to meet senior water right holders’ needs, as a declaration and determination by the Board of the recipients’ water rights priorities.

Further the court determined that the language in the letter instructing the recipients to “immediately stop diverting water” and complete an online Curtailment Certification Form documenting receipt of the curtailment letter and cessation of diversion, was not merely instructional as alleged by the Board. It viewed the letters as coercive, finding that they could reasonably be interpreted as an order, not a mere request for voluntary cessation of diversion activities.

Concluding that the curtailment letters resulted a violation of the petitioners’ due process rights in that there was a taking of the petitioners’ property rights without a pre-deprivation hearing, the court granted the ex parte application for a temporary restraining order/order to show cause as to why a preliminary injunction should not issue.