The amicus brief, offered by entities not party to a case to assist in deciding a matter, attempts to resolve an issue before the Siskiyou County Superior Court regarding an allegation by the California Farm Bureau that the California Department of Fish and Game (DFG) has reinterpreted a statute governing notification requirements for diversions of water.

DFG code section 1602 lists numerous requirements for notifiying the department if an entity is going to “substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake” or dispose of various wastes in a water body.

The Farm Bureau filed a request for declaratory relief earlier this year, requesting that the court determine how the DFG should interpret the word “substantial” contained in 1602, the interpretation of which the bureau claims has changed. Also included in the request was a stated belief that the alleged reinterpretation will “require essentially every person that diverts water in accordance with a surface water right” to notify the DFG before exercising that right.

In July, the DFG submitted a demurrer, which states that while the department does not dispute facts in the case, it believes that the Farm Bureau’s case lacks a statement of facts sufficient to constitute a cause of action.

In particular, the DFG alleges that “the Farm Bureau’s limited interpretation of section 1602 is contrary to the plain and unambiguous meaning of the term ‘divert.’” The department also denies the Farm Bureau’s claim that its jurisdiction would conflict with that of the State Water Board if it were to enforce 1602 in the manner it plans.

In its amicus brief, in response to the demurrer request, PLF also argues that the DFG is failing to interpret 1602 correctly by overlooking the term “substantially.” 

Referencing the arguments given by the DFG in its filing, PLF states, “As the Department itself concedes, a bedrock ‘principle of statutory interpretation [is] that when construing a statute every word should be given meaning and effect.’ ... But the Department’s statutory interpretation completely ignores this principle by reading out the word ‘substantially’ in Section 1602.”

PLF goes on to claim that the DFG cannot apply 1602 to diversions put in place before the 1600 series of codes was introduced in 1961, arguing that the wording in the statutes shows a “forward-looking” language that does not apply to activities already underway before the statutes were in place, unless there are planned changes to the diversion.

PLF claims, “To be clear, those who have diverted water under a pre-1914 water right and have been exercising that right ever since, without making any alteration to the means of diversion that would result in a substantial alteration to the watercourse or streambed, may continue to do so without providing prior notice to the Department under Section 1602. This would be true even if the original diversion was (and continues to be) ‘substantial’ within the meaning of Section 1602.”

PLF concludes by alleging that “the department’s disregard of the limiting terms of section 1602 poses a significant threat to residents, ranchers, and other businesses in Siskiyou County and elsewhere throughout California,” a similar claim made by the Farm Bureau in its request.

Citing a statement from Tulare Lake Basin Water Storage District v. United States, PLF states that it believes future litigation will be unavoidable and legitimate if the DFG’s alleged reinterpretation is allowed to remain in effect, “because ‘[i]n the context of water rights, a mere restriction on use – the hallmark of a regulation – completely eviscerates the right itself since [water rights holders’] sole entitlement is to use of the water.’”

A demurrer hearing is scheduled for Aug. 31 at 1:30 p.m. in the Siskiyou County Superior Court.