LL.M., UC Berkeley; J.D., University of British Columbia
May 28, 2013
“Water courts: Are they right for California?”2 A distinguished panel gathered at the University of California, Davis on January 26, 2013 to entertain this question as part of the 2013 California Water Law Symposium (“Symposium”). This panel aptly fit the theme overarching the Symposium: “Beyond the water wars: collaborative management solutions for a shared resource,”3 as it contemplated the potential benefits and drawbacks of California adopting a management solution like Colorado’s specialized water courts.
Californian policymakers’ and legal practitioners’ contemplation of courting the idea of water courts matters at a deeper level for it suggests perhaps the status quo needs fundamental improvement. The panel’s discussion implicates the broader issue of how we ought to structure our judicial institutions to better serve the needs of citizens relying on courts to resolve water resource disputes. This article presents some of the diverse issues examined by the panel in their discussion, and offers suggestions to help California move further along in that quest.
2. The debate: The panelists’ individual views
Motivating the panel discussion is Colorado’s establishment of seven water divisions in 1969.4 Carved according to Colorado’s seven major river basins,5 these seven water divisions wield “special jurisdiction over matters concerning major watersheds.”6 Each division has a water court, with a district court judge chosen to preside as its water court judge.7 Water judges may hear non-water law cases, but no other judges may hear water law cases in that division.8 Each water judge is also joined by a referee, clerk, and division engineer in the division.9
For California, the question was whether similarly specialized courts were right and whether they would promote efficiency and predictability or incite litigation?10 Against this backdrop, moderator Professor John Leshy challenged the panel to present their views.
Four distinguished panelists ran with the challenge: Justice Gregory Hobbs of the Colorado Supreme Court and Colorado Judicial Advisory Council; Justice Ronald Robie of the California Court of Appeal, Third Appellate District; attorney Stephanie Hastings of Brownstein Hyatt Farber Schreck, LLP; and Judge Jack Komar of the Santa Clara County Superior Court.
Justice Hobbs: Water courts offer virtues of stability and flexibility
Fittingly foretelling of the mix in views about to flow from the panel discussion, Justice Hobbs opened with a poem entitled “The Divide.” The poem relates to Colorado’s role as the mother of rivers, guided in their courses by the great Continental Divide. Colorado must take particular care in managing its water, because so many downstream states rely on it. Therefore, Colorado adopted its specialized system of water courts as one creative solution to this delicate water management challenge. Justice Hobbs found this system affording in the virtues of “stability, reliability, adaptability, and flexibility.”
Justice Robie: California has the SWRCB and needs complex litigation
Justice Robie took a different view, beginning his remarks by defending the way California administers water rights. He said, “Colorado is Colorado, and California is California. We’re different.” He anchored his defense of California’s status quo in two major reasons. First, components of California’s existing system already fulfill functions performed by the referees in Colorado. Take California’s State Water Resources Control Board (“SWRCB”) for example. Second, California’s lawsuits over water often require complex litigation courts because the suits can involve over dozens of parties and lawyers, as well as many experts. In conclusion, Justice Robie expressed that while it is great how Colorado’s water courts work, “that remedy to that problem is simply not a remedy to California’s problem.”
Hastings: Why are we courting the idea of water courts? Why it won’t work in California & what will
Given the question of whether water courts were right for California, Hastings approached it altogether differently. She began by asking, “why are we talking about this — what is the problem?” In her view, the problem that is causing rumblings over water courts as a potential solution is the significant time and expense currently associated with water rights litigation in California. For example, Hastings explained how one case she handled took four years and hundreds of pleadings just to be designated complex. These kinds of time spans, suggested Hastings, greatly disincentivised water rights adjudication in California.
Hastings acknowledged that the special preferences given to water courts in Colorado likely ensured predictability and efficiency, and made experts out of water court judges. However, she identified two institutional barriers to their adoption in California. First, unlike Colorado’s sole reliance on prior appropriation, which enables its water courts to treat individual adjudications with relative ease, California’s unique hybrid11 system of riparian and appropriative water rights necessitates system-wide adjudications that often involve hundreds of parties. This greatly disincentivises litigation. Second, the lack of institutional mechanisms for identifying groundwater users further limits a move to Colorado’s system.
Consequently, Hastings proposed a “baby bear” management solution that neither maintains the status quo nor prescribes water courts in California. Instead, to streamline water rights adjudication by remedying existing disincentives, she proposed a voluntary registry for water claimants that would allow them to identify existing rights or future claims. This solution would greatly ease the arduous process of identifying interests for water lawyers, suggested Hastings. She also questioned why water cases could not be entitled to preference, as CEQA12 cases are.
Judge Komar: Water cases cannot fit easily into watertight compartments
Rounding out the panel, Judge Komar launched his remarks by chronicling the development of complex litigation courts in California. The reason is, in his mind, they offered the natural place to look for water court judges. Judge Komar then noted that while water cases “are truly unique in virtually every way,” they also “virtually partake of every other area.” Therefore, he agreed with Justice Robie that California does not need water courts. Instead, he urged us to look to our approach to CEQA cases, which involves a designated judge in certain large superior court districts to hear CEQA cases as well as others. This approach, suggested Judge Komar, made these judges well-rounded and benefited the system.
3. The free debate
Before inviting the panelists to engage in free debate, Professor Leshy opined that three large problems in California obstructed a move to a Colorado-type of system: California’s exclusion of pre-1914 water rights from the SWRCB’s oversight, the state’s lack of oversight over hydrologically related groundwater resources, and the strange hybrid system of riparian and appropriative rights.
Opening the free debate, Justice Hobbs emphasized that “we’re not that unlike.” He clarified that he was not arguing for Colorado’s system to belong in California. Rather, he argued California has a “well crisis,” which is chronic overdraft of groundwater resources like the crisis that triggered Colorado’s adoption of its system in the 1960’s. Hastings agreed California had a crisis, but saw it more as one of uncertainty that could be solved through “more effective and wise groundwater management.”
Justice Robie steered the discussion to the possibilities afforded by using the rules of court, the development of CEQA judges, and judicial education. However, he did not end without responding to Hastings’ remark about delay. He pointed out the lawyers’ equally complicit behavior in seeking extensions.
Judge Komar joined Justice Robie in expressing skepticism over preference. He urged attention instead toward the due process challenge of serving all parties whose rights are potentially implicated in complex water cases.
In response, Justice Hobbs suggested that Colorado’s system precisely avoids this problem of ferreting out every individual, through a resume notice proceeding binding all users on an in rem basis. To this, Judge Komar replied, “court decisions are like train tickets; they are good for this trip and this trip only.”
Justice Robie agreed, saying that while Colorado’s system was enviable, California had unique riparian needs. Although Justice Hobbs responded that California can rely on its reasonable and beneficial use doctrine, Justice Robie insisted that it was still hard to get a hold of everyone. Consequently, Hastings reiterated the potential value of a California water right registry. Finally, Judge Komar wished California would develop an in rem system.
4. Beyond the Symposium: Whither a Eureka moment?
Where does this panel discussion leave us around the issue of whether water courts are right for California? This article argues that progressing beyond the divide in views, and towards a comprehensive understanding, requires taking ownership of two tasks. First, we should deepen the debate of whether a system of specialized courts like that of Colorado’s would play an appropriate role in California’s context by systematically reviewing its merits and drawbacks. Second, we should broaden the debate to uncover the underlying issues as hinted at by Hastings: what concerns motivate California’s flirtation with this idea in the first place?
As Churchill explained in 1939 that the action of Russia could not be forecast because “[i]t is a riddle, wrapped in a mystery, inside an enigma; but perhaps there is a key,” we must similarly unpeel the problem to extract the key. California’s deep introspection into the adequacy of existing institutions to resolve water conflicts is central to resolving the debate of whether to adopt water courts like Colorado’s for a simple reason. That is, just like in contemplating courtship, a person can gain great insight into the appropriateness of engaging with an appealing prospect by looking within to uncover their needs. Such deep introspection can save costs otherwise incurred by rushing into courtship with the wrong match. Therefore, we should cultivate vigilant self-awareness into the weaknesses of our water rights adjudication system that demand improvement first, before we contemplate the appropriateness of establishing water courts.
In sum, to figure out whether to adopt water courts from Colorado, like Archimedes, California need brew in the bathhouse no longer. Rather, as this great state could exclaim “Eureka!” upon discovering gold at Sutter’s Mill in 1848, and so claim it for a motto, once again, California may proclaim “Eureka!” for finding the key. That key is: before courting attractive solutions from afar to bring us beyond the water wars, we must first examine the genesis of shortcomings in our water law to determine if reforming our existing institutions alone will address those concerns.
1 Thanks to the organizers and panellists at the California Water Law Symposium for launching the panel discussion. Thank you to Professor Doremus, James H. House and Hiram H. Hurd Professor of Environmental Regulation, UC Berkeley Law for expert feedback on this topic for an expanded paper. Thank you to Fulbright Canada and the Law Foundation of British Columbia for generous support for this research and program of study.
2 California Water Law Symposium, Water Courts: Are they right for California?, http://www.waterlawsymposium.com/content/water-courts-are-they-right-california/.
3 California Water Law Symposium, Beyond the Water Wars: Collaborative Management Solutions for a Shared Resource, http://www.waterlawsymposium.com/; Holly Doremus, The Persistent Problem of Standing in Environmental Law, 40 Envtl. L. Rep. News & Analysis 10956 (2010) for analytical approach.
4 Water Rights Determination and Administration Act of 1969, Colo. Rev. Stat. §§ 37-92-102 to -602 (2000).
5 John E. Thorson, Ramsey L. Kropf, Andrea K. Gerlak, and Dar Crammond, Dividing Western Waters: A Century of Adjudicating Rivers and Streams, Part II, 9 U. Denv. Water L. Rev. 299, 345 (2006).
6 Gregory J. Hobbs, Jr. In praise of fair Colorado. The practice of poetry, history, and judging 342 (2004).
7 Barbara Cosens, Resolving Conflict in Non-ideal, Complex Systems: Solutions for the Law-Science Breakdown in Environmental and Natural Resource Law, 48 Nat. Resources J. 257, 296 (2008).
9 Gregory J. Hobbs, Jr., Reviving the Public Ownership, Antispeculation, and Beneficial Use Moorings of Prior Appropriation Water Law, 84 University of Colorado Law Review 97, 113 (2012); Id.
10 California Water Law Symposium, supra note 2.
11 Lux v. Haggin, 69 Cal. 255, 10 P. 674 (Cal. 1886).
12 California Environmental Quality Act, California Public Resources Code § 21000 et seq.