Fallowing lawsuit against OID remains on track

A judge reversed course and decided that the Oakdale Irrigation District must address environmental concerns before implementing a new fallowing program.
A judge reversed course and decided that the Oakdale Irrigation District must address environmental concerns before implementing a new fallowing program. Modesto Bee file

A judge on Tuesday refused the Oakdale Irrigation District’s request to throw out a lawsuit challenging the district’s stalled fallowing program.

Another judge had ruled in May that the district must study how shipping river water elsewhere might affect the groundwater table here, before allowing farmers to idle some land and sell freed-up water to outside buyers. When that judge, William Mayhew, was removed from the case, OID tried to persuade Stanislaus Superior Court Judge Roger Beauchesne to toss out the lawsuit, but had no better luck Tuesday.

Isn’t it amazing what can be accomplished when people actually talk to one another?

Roger Beauchesne, Stanislaus Superior Court judge

The fallowing program never got off the ground because OID didn’t get clearance from state and federal regulators and because of Mayhew’s earlier order, causing some fallowing farmers to lose the opportunity of raising crops.

OID sold other water to outside buyers this year in a deal separate from the fallowing program. Fallowing proceeds could have helped pay for efficiency upgrades on participating farms.

“Frankly, (OID) was being progressive and trying to do the right thing” to comply with state law requiring less waste, OID attorney Valerie Kincaid told Beauchesne on Tuesday. Requiring full-blown environmental impact reports for every water deal could have an unfortunate chilling effect on the district, she said.

Attorney Osha Meserve, representing plaintiffs Robert Frobose and Louis Brichetto, said, “If OID wants to go forth with their plans, all it needs to do is try to comply with CEQA,” or the California Environmental Quality Act. Instead, the OID board majority had issued what’s called a negative declaration, a shortcut meant to streamline a deal by declaring that fallowing would have no effect on the environment.

This is designed solely to frustrate my clients’ attempts to enforce requirements of CEQA.

Osha Meserve, plaintiffs’ attorney

Beauchesne agreed with Meserve, allowing the lawsuit to proceed.

In related action, the judge also rejected OID’s claim that Mayhew mistepped by not requiring that Frobose and Brichetto post a bond covering OID’s potential damages, in case OID eventually prevails.

State law requires such bonds, but judges almost never impose them, and Beauchesne felt caught between the statute and common practice. Because OID had never asked Mayhew to set a bond, Beauchesne ruled that the district had “waived its right to object to the lack of a bond,” but he also exercised a judge’s “inherent authority” and ordered the plaintiffs to post “a nominal bond in the amount of $10,000.”

We’ve worked tirelessly responding (to document demands). We’ve provided thousands of documents. They have all the documents. I don’t know what else they want.

Valerie Kincaid, OID attorney

Additionally, Beauchesne declined to order OID to provide more documents to the other side for the time being. Meserve accused OID of “stonewall” tactics meant to frustrate her clients, while Kincaid said, “We’ve provided all the documents they’ve asked for.”

The fallowing case created a spinoff when the OID board majority sued to exclude the minority, composed of Linda Santos and Gail Altieri, from closed-door strategy discussions and votes on the fallowing lawsuit. The exclusion action was not at issue Tuesday and is proceeding on a separate track, although both women attended Tuesday’s court hearing.

A few weeks ago, Meserve dropped accusations in the fallowing case that OID illegally spent public money and that board member Gary Osmundson violated state law by signing up to idle some of his land, then voting to create the fallowing program in hopes of allegedly putting $119,000 in his own pocket.

Garth Stapley: 209-578-2390