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Mammoth Creek fight will stay in Mono County

April 13, 2012

Mammoth Creek.

The fight over Mammoth Creek’s water will stay in Mono County and the Mammoth Community Water District will get some help from the county and the Town of Mammoth Lakes in that fight.

At a court hearing Thursday in Mammoth, the Los Angeles Department of Water and Power and the water district agreed to keep the argument in Mono County, with the caveat, proposed by DWP, that a “neutral” judge was assigned to the cases from now on.

At the 9:30 a.m. hearing Thursday, the courtroom was packed to overflowing with about 80 Mono County residents. Several dozen more people had to sit downstairs in the overflow area, where they could listen but not see the proceedings.

The hearing, requested by DWP in an attempt to move any future hearings on the agency’s two active lawsuits against the water district to Fresno, moved quickly and smoothly. In fact, it was DWP’s attorney who suggested in the beginning of the hearing that the change of venue request be dropped and future court proceedings stay in Mono County—if a neutral judge was assigned to the case.

“It’s become clear to us that there is a big concern (over this issue) so I’m OK with keeping it to Mono County as long as it is assigned to a neutral judge,” said the DWP attorney.

Mono County Superior Court Judge Stan Eller presided over the hearing. He noted at the beginning that he believed he was capable of being “fair and impartial” adjudicating the change of venue issue, and, he noted that he had presided over two previous cases regarding DWP.

One was in 1984 when he was Mono County’s assistant district attorney and ordered a restraining order against DWP to stop them from dewatering Rush Creek near Lee Vining. The second was in 1991, when as district attorney, he ordered the department to re-water the mostly dry Owens Gorge to protect a fledgling fishery in the gorge. He prevailed in both cases and DWP has since been involved in on-going efforts to re-water, and mitigate the impacts created, both waterways.

Both sides agreed to meet again in May 10 for a “status update”, with the expectation that a judge will be in place at that time. The judge will be chosen by the state’s Judicial Council. It is expected that the judge will have experience in adjudicating California Environmental Quality Act cases, since one of the lawsuits against the water district is a claim by DWP that the water district’s Environmental Impact Report on its plan to protect the creek’s fisheries is “deficient.”

The DWP fight to claim it is the senior water rights holder on Mammoth Creek, which is at the heart of both lawsuits, saw more action this past two weeks as well. Both the Town of Mammoth and Mono County have now formally pledged their support for the district. Last Wednesday, Norby’s appeal to the Mammoth Town Council was met with unanimous support and the Town is currently drafting a letter of support to send to both the Los Angeles Mayor and the appointed water commissioners for DWP.
This Tuesday, the water district’s general manager, Greg Norby, went before the Mono County Board of Supervisors to ask for their support.

He got it. The county supervisors unanimously agreed to send a letter to both Los Angeles Mayor, Antonio Villaraigosa and the five water commissioners who oversee the workings of DWP. In fact, the county noted it would be interested in joining with the water district as a possible “amicus curiae” or “friend of the court”.

“I’m normally not supportive of getting involved in other jurisdictions’ disputes… but I believe (in this case) there are reasons we should,” said District 2 Supervisor Hap Hazard. “Mono County was here before Mammoth Lakes (was incorporated) and the same legal principals could be used to argue our county rights. …We may need to get involved at a deeper level in the future.”

“This is a blow to Mammoth,” said District 5 Supervisor Byng Hunt. “(If DWP is successful), this potentially has an impact that none of us want to see.”

“Give ‘em hell,” said District 1 Supervisor Larry Johnston.

Norby said Thursday that he was “very grateful and appreciative” of the level of support offered to the district.

The bottom line in this situation is simple.

DWP recently asserted that it is the senior water rights holder to water rights that the MCWD says were legally granted to it by the State Water Resources Control Board.

DWP disagrees.

Therein lies the conflict, revealed in two lawsuits that challenge more technical issues included in the water district’s “fishery bypass” plans and its urban water management plan.

DWP filed its recent lawsuits in two parts; one late last year and one earlier this year. In both lawsuits against the district, it contends that it is the legal owner of the water rights that Mammoth now depends on from Mammoth Creek, rights that supply an average of about 50 percent of the communities total water needs.

And, to add insult to injury, on Thursday morning, the water district’s attorney, Alan Lilly, noted that DWP is also claiming that its groundwater rights are senior to MCWD’s claims.

Mammoth depends on this groundwater for the other 50 percent of its water needs that don’t come from Mammoth Creek.

But DWP said it’s not trying to “take away” Mammoth’s access to Mammoth Creek.

“…the attorney for the MCWD stated that the legal action by LADWP is an attempt to stop all Mammoth Creek and groundwater use by the Mammoth,” noted Chris Plakos, a spokesman for DWP, in a fax sent to the Times late Thursday. “…this is not the intent…it is about the MCWD’s legal obligation under CEQA. …Extensive investigations show… that Los Angeles has senior water rights…based on the 1905 Owens River water rights filing (and other water rights filings).”

Plakos noted that the MCWD has known for years about DWP’s stance on the water rights issue and the district did not address those concerns properly. Hence, the lawsuits.

Norby said negotiations will continue with DWP and that the district is pursuing more direct contact with Mayor Villaraigosa. DWP said it will continue to negotiate as well.

“The LADWP will continue to work with MCWD officials to seek a fair solution that both communities can work with,” Plakos said in the fax.

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