A judge will rule soon whether Oakdale water leaders skirted state law in last year’s fallowing proposal, the judge said Wednesday at the end of a short civil trial that could affect future fallow-for-money programs.
Also Wednesday, Stanislaus Superior Court Judge Roger Beauchesne declined to slap the district with a $1,000 fine, saying the OID did not violate a related court order.
The OID broke state environmental law by failing to study whether shipping river water elsewhere might harm groundwater levels here, Sacramento attorney Osha Meserve said in the one-day trial. Nor did the district study how its fallowing proposal might affect air quality and wild critters, essentially ignoring the California Environmental Quality Act, she said.
“The agency just failed to proceed in a manner required by law,” Meserve said.
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The OID had recruited farmers willing to idle 59 plots of farmland in exchange for money from selling the freed-up water to outside buyers. Instead of conducting a full environmental impact report, the board majority opted for what’s called a “negative declaration,” stating there would be no environmental impacts.
When it’s time to describe the impacts of OID’s program, the best their expert can do is to say it’s a relatively small amount of water. That’s not substantial evidence of a significant impact.
Valerie Kincaid, OID attorney
The plan stalled for two reasons: First, management failed to get approval from state and federal regulators, and second, another judge in May agreed with the basics of Meserve’s position pending the trial that occurred Wednesday. That judge had issued an order warning OID against doing anything to advance fallowing, including paying anyone.
Attorney Valerie Kincaid, representing the OID, said the district is trying to comply with another state law mandating water conservation. Most of the fallowing proceeds – 75 percent – would pay to upgrade equipment, saving water in the future, while farmers would get 20 percent in cash and the district would keep 5 percent.
The amount of water to be sold elsewhere is relatively small, Kincaid said, and doesn’t meet a standard requiring a full environmental impact report. In fact, the amount that would not seep down to the local groundwater table is less than what one of Meserve’s suing clients – former OID board member Louis Brichetto – pumps every year, Kincaid said.
An ad hominem attack is a tried-and-true strategy for people who have a case that is weak.
Roger Beauchesne, Stanislaus Superior Court judge
Beauchesne noted that OID, in pretrial briefs, had called Meserve’s clients “obstructionists.” The judge then provided a definition for an ad hominem attack, or an attack on someone’s character or motive to deflect attention when you have a weak case.
Not named in court was Meserve’s other client, Oakdale grower Robert Frobose. He and Brichetto constitute the Oakdale Groundwater Association, the suing party.
“Do they have a grudge or some nefarious reason why they filed the lawsuit?” the judge asked.
Kincaid said she suspects the plaintiffs wanted to obstruct the fallowing program because they wouldn’t be “able to participate” in it.
Meserve said speculating about motives amounts to subterfuge that is both “irrelevant and misplaced.” The only important issue is whether OID followed state law, she said.
Any subterfuge about motives is irrelevant and misplaced.
Osha Meserve, plaintiffs’ attorney
Beauchesne is expected to issue a written ruling in coming weeks.
Meanwhile, he said he won’t fine OID, whose board in November agreed to settle claims brought by farmers who signed up to fallow land. Some went ahead with upgrades, expecting to be paid even though the program had stalled and generated no money.
Agreeing to settle claims clearly violated the court’s May injunction, or order shoving the fallowing program into limbo, said Meserve’s law partner, Patrick Soluri.
OID attorney Fred Silva said holding the district in contempt of court would require a finding that the district had committed a criminal act, or proving guilt beyond a reasonable doubt. He said OID General Manager Steve Knell warned farmers of the court order, while Soluri contended that Knell appeared to encourage fallowers to proceed and then request reimbursement.
After verifying that OID has not yet settled any fallowing claims, Beauchesne sided with the district.
“Candidly, I don’t think at this point it’s even a close call,” the judge said.
Although the fallowing program stalled, OID continued to market surplus water to outsiders last year, reaping $15.8 million – far more than in any year in the past two decades. Those water sales relied on a unique “abandoning” strategy not subject to environmental review, rather than the more traditional “transfer” structure requiring scrutiny that informs water leaders and the public.
Garth Stapley: 209-578-2390