Fallowing lawsuit narrows against Oakdale Irrigation District

Oakdale Irrigation District board member Gary Osmundson has been released from a lawsuit facing the district, and all other claims against the district but one also have been dropped.

An attorney for the plaintiffs said they have chosen to focus on the core complaint – that OID failed to do environmental studies for a now-defunct fallowing program – rather than going after Osmundson on accusations of using his position to try to enrich himself.

Calls and emails Friday to Osmundson’s attorneys were not returned. He said in an email, “I’ve been advised to still not comment. When I can, I will.”

Both sides recently demanded in court papers that the other camp hand over evidence.

Those suing say OID – hoping to delay the case, wear down opponents and run up their legal bills – has refused to provide documents as required by law. They ask that a judge punish the district with a $4,900 sanction.

Meanwhile, in an email to The Modesto Bee, OID General Manager Steve Knell questioned the timing of the partial dismissals – only days after attorneys representing OID and Osmundson filed court motions demanding that those suing provide relevant emails, texts, phone records and the like. OID also filed a motion asking that the entire lawsuit be thrown out.

Knell pondered whether the plaintiffs “realized they had no substance to their claims all along” or “did not want to open the door of transparency to who and what is behind this lawsuit.”

“OID has been stating all along that this suit is all about local politics and has nothing to do about substance,” Knell added. “It appears that is becoming evident.”

The plaintiffs are OID customers Louis Brichetto, a former board member, and Robert Frobose. Initially they sued to stop OID’s plan to have farmers fallow land in exchange for money from selling freed-up water to outside buyers. Later they added Osmundson as a defendant because he signed up to fallow some of his land, then cast the deciding vote when the board approved the fallowing program, and Osmundson could have made $119,000 in personal profit.

Osmundson has said attorneys cleared him to vote because he would have enjoyed the same terms afforded to all participants.

Brichetto and Frobose additionally sought prosecution against Osmundson from local law enforcement and the California Fair Political Practices Commission.

The plaintiffs on Tuesday dropped accusations that Osmundson violated the California Political Reform Act and engaged in self-dealing, as well as allegations that OID illegally spent public money. The latter claim anticipated that OID would try to use proceeds of another water sale this year to pay fallowing farmers, reasoning that that money should benefit all OID customers and not the relative few volunteering to idle farmland.

The fallowing plan fell apart when a judge agreed with Brichetto and Frobose that state law requires OID to study environmental consequences of shipping water elsewhere. Stanislaus Superior Court Judge William Mayhew issued a preliminary injunction against OID, but the issue remains subject to ongoing litigation. Osmundson’s attorney then had the judge removed from the case, which was assigned to another.

“We’re basically focusing on CEQA,” said a suing attorney, Patrick Soluri, referring to the California Environmental Quality Act that governs agencies in such matters. “We feel comfortable we’re going to win on that. We already have the preliminary injunction, so we’ll focus our energies on that and not be distracted by other things.”

“It is clear that OID lawfully proceeded under CEQA,” contends the district’s demurrer, or motion that the entire lawsuit be thrown out of court.

The battle spawned a related legal challenge when OID sued to keep two of its elected board members out of closed-door strategy discussions and votes on the fallowing lawsuit. A judge last week granted a temporary restraining order against the board’s Linda Santos and Gail Altieri because Soluri’s camp had used the women’s sworn statements, hurting OID’s case in the fallowing matter.

Soluri’s partner, Osha Meserve, said in another court document that in 17 years of handling CEQA matters, she’s never run across an agency that flat-out refused to provide documents.

“OID’s position appears to be based on the cynical belief that it can run up (plaintiffs’) legal fees and force abandonment of the case,” Meserve said in the brief. She has asked that a judge order the district to pay $4,900 to cover the time she and her staff have spent trying to get OID to comply.

An Aug. 9 hearing is scheduled, but Meserve warned that OID’s obstinence likely will force a delay.

This story was originally published July 8, 2016 at 5:32 PM with the headline "Fallowing lawsuit narrows against Oakdale Irrigation District."