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Owner of Longtime Water Right Can't Avoid Fish and Game Statute

The owner of appropriative water rights to a creek cannot exercise those rights in violation of state regulations intended to protect fish and wildlife, the Third District Court of Appeal has decided. The court ruled that the owner of appropriative water rights to Big Creek in Trinity County still had to notify the Department of Fish & Game (DFG) before making substantial alterations to the streambed, as required by Fish and Game Code 1603. The owner argued that his water right, essentially, made him free of regulation and that DFG's attempt to intervene in his in-stream activities amounted to a taking. The court, however, rejected that argument and said the takings issue was not ripe. In 1971, the Murrison family purchased Big Creek Ranch, a 19th century homestead. The family claimed the ranch came with a pre-1914 right to flows from Big Creek. (1914 was the first year the state allocated water rights. Prior to that, the system was essentially first-come, first-served.) The state entered into one-year agreements allowing the Murrisons to alter the streambed in 1989 and 1990 to divert water into their irrigation ditch. In 1998, a state game warden inspected the site and found that the landowner, Scott Edgar Murrison, had blocked nearly the entire flow of the creek with rocks. In April 1999, the state filed a complaint alleging that Murrison had violated Fish and Game Code 1603 and Business and Professions Code 17200, which requires the court to impose a fine for unlawful business practices. At trial, Murrison argued that his water rights were not subject to Fish and Game Code and that, anyway, his work fell within an exemption for maintenance of water works. Shasta County Superior Court Judge Gregory Caskey, sitting by assignment in Trinity County, found Murrison had violated the law and fined him $10,000 under the Fish and Game Code, and $1,500 under the Business and Professions Code. Judge Caskey also issued an injunction allowing Murrison to operate his headgate but preventing him from working in Big Creek. Murrison appealed, but the Third District upheld the trial court. On appeal, there was no dispute that Murrison had substantially altered the streambed. Instead, Murrison contended that because the State Water Resources Control Board does not allocate or distribute water rights obtained before 1914, the Fish and Game Code did not apply. He cited Article X, Section 2 of the California Constitution, which bars regulations that deprive any water appropriator of the water to which he is entitled. The court found that DFG was not trying to take Murrison's water. Rather, the agency was only trying to enforce a provision that required anyone to notify DFG of plans to alter a streambed. Murrison had failed to do so. "The requirement in Fish and Game Code 1603 that Murrison notify DFG of his intent to substantially alter or divert Big Creek furthers the state's substantial interest in the protection of the state's fish and wildlife," Justice Ronald Robie wrote for the unanimous three-judge panel. "This statutory requirement is inherent in the state's sovereign power to protect its wildlife, and Murrison's water rights are subject to these powers. A water right, whether it predates or postdates 1914, is not exempt from reasonable regulation. Just as a real property owner does not have an unfettered right to develop property in any manner he or she sees fit, an owner of a water right may be similarly restricted." The only difference between a pre-1914 water right and post-1914 water right is that the latter "must go through the administrative process before" the State Water Resources Control Board, the court held, citing Fullerton v. State Water Resources Control Bd., (1979) 90 Cal.App.3d 590. Moreover, the statute Murrison violated did not affect his water right, the court ruled. The law only required Murrison to notify DFG before obstructing the creek. And because DFG never attempted the regulate Murrison's water right, his takings claim was not ripe, the court ruled. In fact, Murrison may have pressed his case too far, as the appellate court questioned whether his water right even existed. "While he traced the origins of his claimed right, he failed to present any testimony about the nature and quantity of the right at any time, including the period since the rights were created to the date of the trial," Robie wrote. Yet appropriative water rights are limited to the amount of water that can be, and has been, put to beneficial use. "Murrison has failed to establish a prima facie pre-1914 appropriative right," the court concluded. The court upheld the fines and the injunction, saying the Murrisons "have often refused to notify DFG of their activities in the streambed, leaving them to the discovery of game wardens." The Case: People v. Murrison, No. C038627, 02 C.D.O.S. 7633, 2002 DJDAR 9579. Filed August 20, 2002. The Lawyers: For Murrison: Steven Enochian, Moss & Enochian, (530) 225-8990. For The People: Tara Mueller, deputy attorney general, (510) 622-2136.
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