Madera Judge asks for more information in lawsuit over fees for groundwater projects

SJV Water is a nonprofit, independent online news publication covering water in the San Joaquin Valley. Lois Henry is the CEO/Editor of SJV Water. She can be reached at lois.henry@sjvwater.org. The website is www.sjvwater.org.

Round one of a lawsuit brought by a group of farmers against Madera County over land assessment fees left both sides standing — for now.

On June 18, Madera County Superior Court Judge Brian Enos inched forward on the county’s attempt to dismiss a lawsuit brought by the California United Water Coalition. He granted the county’s motion for judgment on the pleadings, but gave the coalition 60 days to provide more information.

Meanwhile, the injunction against the fees remains in place. A new hearing date has not been set.

“I feel good for now, but this is just round one,” said Robert Bishel, board member of the coalition.

Coalition attorney Patrick Gorman agreed, predicting the case would likely drag into 2025.

Judge Enos wanted to see more details in the original lawsuit about whether coalition members had paid the disputed fees, and if so, when.

“They are saying that unless you can show that you paid before you filed the lawsuit, you’re out,” Gorman explained to the crowd of attendees after the hearing.

That may be a key issue due to California’s long-standing “pay first, litigate later” rule. No matter how unfair a fee or tax may seem, it must be paid until a court rules that it’s illegal.

Mojave Pistachios LLC recently lost a case over pumping fees of $2,130 per acre foot in the Indian Wells Valley in eastern Kern County. On June 14, the company was ordered to pay $30 million in back fees.

Coalition members feel the Mojave Pistachios ruling doesn’t apply because the injunction against the Madera County fees was granted before they were actually due. Regardless, they said, they will canvas their members to figure out who paid and when as requested by the judge.

The county does not believe the coalition will be able to find members who paid.

“You would think they would be able to find someone who is a member of their organization who could demonstrate that they paid before the lawsuit was filed,” said Steve Ngo, lawyer for the county. “But in fact, they didn’t.”

But Judge Enos also noted other differences in the Mojave Pistachios case.

“The court finds big nuance in Mojave Pistachios,” Enos said.

The Mojave Pistachios case involved a “quantifiable” amount of groundwater subject to fees for known projects. In the Madera case, the land assessment fees were to pay for future water projects, he noted.

“The constitution requires it to be explained now,” he said of government taxation.

Tale of the fees

The land assessment fees were voted on in a Proposition 218 election and approved by the Madera County Groundwater Sustainability Agency (GSA). They were intended to pay to import water, build recharge basins, repair domestic wells harmed by over pumping and more, according to Stephanie Anagnoson, Director of the county’s Water and Natural Resources Department and manager for the County GSA.

The county is the GSA for 215,000 acres across parts of three subbasins. Those lands are outside of water district boundaries so landowners rely almost exclusively on groundwater.

In June 2022, the County GSA held Proposition 218 elections to set fees in the Madera, Delta-Mendota and Chowchilla subbasins. Chowchilla landowners voted them down. But owners in the Madera subbasin didn’t generate enough protest votes to stop a $246 per acre per year. The election resulted in a $138-per-acre fee in Delta-Mendota.

The farmer coalition sued over the fees in the Madera subbasin saying the Proposition 218 election was conducted improperly. It was granted an injunction against the fees on December 6 2022, shortly before the fees were due on Dec. 12, 2022.

“These ‘fees’ place an unconstitutional burden solely on farm owners, many of whom operate small family farms who can ill afford it,” the coalition’s lawyer wrote in the initial petition.

‘Real stakes for farming’

The County GSA says that without those fees, it does not have funding to move forward with projects in its groundwater plan, which was approved by the state per the Sustainable Groundwater Management Act.

That puts the entire subbasin in jeopardy, Anagnoson wrote in an email. If subbasin plans are deemed inadequate the state Water Resources Control Board can put the region into probation, a first step toward the state taking control of pumping allotments.

“If there is no domestic well mitigation program, I think it is likely the subbasin goes into probation and the State Board intervenes,” Anagonson wrote in an email after the hearing. “These are very real stakes for farming.”

The state Water Board put the Tulare Lake subbasin, which covers most of Kings County, on probation earlier this year. Now Kings County farmers will be forced to register wells, meter them, report their extractions and pay the state $20 per acre foot pumped on top of fees they are paying their groundwater agencies.