DUARTE, J. —
The Department of Fish and Wildlife (Department) appeals from a judgment in favor of the Siskiyou County Farm Bureau (Farm Bureau), interpreting a statute requiring notification when an entity plans to "substantially divert" water from a river or stream.
We shall reverse because the trial court incorrectly found the statute, Fish and Game Code section 1602,
Regardless of an entity's legal right to take water, such as for agricultural purposes, and regardless of whether the taking alters the streambed itself, section 1602, subdivision (a) unambiguously requires notification to the Department if an entity plans to "substantially divert" water. After notification, a statutory mechanism — arbitration followed by court review — exists to resolve disputes about diversions. This notification requirement neither encroaches on any entity's water rights, nor impairs the powers and duties of the State Water Resources Control Board (Board), which has filed an amicus curiae brief fully supporting the Department's position.
As we will explain, the trial court appears to have been led astray by a questionable and aborted enforcement policy issued by a single Department employee (the Stopher criteria), as well as the deluge of extrinsic material proffered by the Farm Bureau in its effort to demonstrate a latent ambiguity in the statute. As we have recently cautioned, although extrinsic evidence may reveal a latent ambiguity in a statute, such ambiguity must reside in the statutory language itself. It cannot exist in the abstract, or by ignoring the statutory language. (See Alameda County Flood Control & Water Conservation Dist. v. Department of Water Resources (2013) 213 Cal.App.4th 1163, 1179-1180, 1188-1190, 1195 [152 Cal.Rptr.3d 845] (Alameda).) Here, the extrinsic evidence reveals no ambiguity in the statute: The term "divert" had a long-established meaning in the context of water law before enactment of the statute, and we presume the Legislature was aware of that meaning when it used divert as it did in section 1602.
If the Farm Bureau and allied amici curiae believe the statute as written reflects poor public policy, a remedy lies "on the other side of Tenth Street, in
The Farm Bureau filed a complaint for declaratory relief alleging that for over a century "ranchers and farmers in Siskiyou County have extracted water from streams and rivers to irrigate crops and pastures, to water livestock, and for use in their homes and businesses. Not until now, some fifty years after the legislature adopted ... sections 1600 et seq., has [the Department] asserted that [such extraction] requires compliance with section 1602 regardless of whether there is any alteration of a river, stream, or lake." Farmers and ranchers either had to comply with this new interpretation or risk "civil and criminal prosecution. For this reason, [the Farm Bureau] brings this action for declaratory relief to clarify the rights and duties of its members under ... section 1602 who do not alter the streambed in exercising their water rights." The purportedly new interpretation referenced by the complaint was based on the Stopher criteria, which presumed that any diversion of water within the relevant watershed was a substantial diversion within the meaning of section 1602.
The Department unsuccessfully moved for judgment on the pleadings, and the parties then contested whether or not the statute — as proposed to be applied — was ambiguous. The trial court found it was.
To resolve the question of statutory ambiguity, the trial court considered extrinsic evidence and resolved the purported ambiguity against the Department, which timely appealed from a judgment prohibiting it from "bringing enforcement action against agricultural water diverters for failing to notify the department of the diverter's intention to lawfully exercise his water right absent alteration to the bed, bank, or stream."
The trial court found the statute's plain meaning supported the Department's view that the word divert encompassed diversions that did not alter the streambed itself, but found there was a latent ambiguity and applying the plain meaning would lead to absurd results, raise doubts about the constitutionality of the statute, and cause a conflict between the Department's duties and the Board's duties.
We agree with the trial court that the plain meaning of the statute supports the Department's position. Our agreement, however, ends there. Although the Department's interpretation of the statute plausibly accounts for the statutory
We shall reverse with directions to enter judgment in favor of the Department.
Section 1602 now provides in relevant part: "An entity may not 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 deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake, unless all of the following occur [(listing notification and other requirements.)]" (§ 1602, subd. (a).)
The trial court found the plain meaning of divert as used in section 1602 was broad and supported the Department's position herein. Yet the trial court then found a latent ambiguity in the term. As we now explain, there is no semantic ambiguity as posited by the Farm Bureau, latent or otherwise.
First, we review some basic principles of California water law, to establish the background for the specific legislation at issue. (Pt. 1A., post.) Next, we briefly describe the devastating effect of the gold rush on California's rivers and streams, again to provide background for the relevant legislation. (Pt. 1B., post.) We then describe the history of section 1602. (Pt. 1C., post.) We then discuss early interpretations of section 1602. (Pt. 1D., post.) Finally, we consider whether any proffered extrinsic evidence establishes an alternative equally plausible candidate of meaning of divert as used in section 1602, and conclude no such alternative meaning has been demonstrated. (Pt. 1E., post.)
Because the trial court spent much time on basic water law principles which are assumed by the parties, we provide the reader with a brief summary, taken from a recent case:
"... [W]ater use by both appropriators and riparian users is limited by the `reasonable use' doctrine, which forbids the waste of water or its unreasonable use." (Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229 Cal.App.4th 879, 888-890 [177 Cal.Rptr.3d 735], fns. omitted.)
"Over [150 years ago], gold drew throngs of adventurers to early mining communities in the Sierra Nevada. When the halcyon years were over, a few earnest argonauts decamped and went to the river bottoms, and pointed great water cannons, called monitors, at the hillsides hoping to dislodge sparkles of gold from the sandy detritus.... [¶] Although considerable quantities of gold washed down and were separated from the gravel, the hydraulic mines annually discharged 600,000 cubic yards of debris, which soon choked the American and Sacramento Rivers with tailings, raised the beds of these
The injunctive relief just mentioned (see People v. Gold Run Ditch & Mining Co. (1884) 66 Cal. 138 [4 P. 1152]; see also Woodruff v. North Bloomfield Gravel Min. Co. (1884) 18 Fed. 753) had significant consequences:
"[These] decision[s] led to the virtual demise of hydraulic mining, and the Legislature finally responded by declaring that hydraulic mining could only be carried on if it could be done without material injury to navigable streams or the lands adjacent thereto [citation].... In addition, one who desires to [deflect], alter or divert the course of a nonnavigable stream in any surface mining dredging operation must obtain the approval of the board of supervisors [citation].
"Turning our attention to the immediate origins of [section 1602], it appears over the years, the Legislature, concerned with the decline in the fish population, enacted a number of laws including those, 1) prohibiting persons from depositing any substance or material deleter[i]ous to fish where it could pass into the waters of the state [citations], 2) prohibiting mining operations in the Trinity and Klamath game district for four months each year, except when mining debris could not pass into the waters, [citation], 3) making it unlawful to construct or maintain devices in certain streams which impeded the passing of fish up and down the stream [citation], 4) authorizing the Fish and Game Commission to require the owner of any new or enlarged dam to install and maintain fishways [citations], and, 5) allowing access to waters impounded by a dam to fishermen during the open season [citations].
"Despite these efforts, siltation caused by the removal and washing of aggregate seriously affected anadromous fish, such as salmon and steelhead, by preventing spawning and suffocating eggs and fry. Aggregate operations had rendered certain portions of the Tuolumne River useless for spawning and placed the American River in jeopardy. [Citations.]
The purpose of remediating adequate spawning reaches for anadromous fish was detailed in a 1959 legislative report introduced as extrinsic evidence at trial. (Sen. Permanent Fact Finding Com. on Natural Resources (1961 Reg. Sess.).) We will refer to this as the Senate Report.
Originally enacted as part of a new chapter 6 of division 2 of the code, former section 1602 provided in significant part: "Any person who substantially diverts or obstructs the natural flow or substantially changes the bed, channel or bank of any river, stream or lake, or uses any material from the streambeds, shall notify the department of such operations, except when the department has been notified pursuant to Section 1601. The department within 30 days of receipt of such notice, or within the time determined by mutual written agreement, shall submit to the person its recommendations as to measures necessary to protect fish and wildlife." (Stats. 1961, ch. 909, § 2, p. 2532.)
As we have explained in a prior case, in 1970 the Legislature prohibited diversions until an agreement was reached with the Department, and arbitration provisions were added to facilitate disputes. We emphasized that violations of the section, then renumbered section 1603 (Stats. 1970, ch. 1357, § 2, p. 2524), "either by failure to notify the Department of a project or by refusing to incorporate the Department's proposed project modifications or the decision of the arbitration panel into the project, became a misdemeanor" (Willadsen v. Justice Court (1983) 139 Cal.App.3d 171, 176 [188 Cal.Rptr. 488] (Willadsen)).
In 1976, chapter 6 of division 2 of the Fish and Game Code was repealed and revised (Stats. 1976, ch. 603, §§ 1-2, pp. 1447-1451), and by regulation the Department declared "all rivers, streams, lakes, and streambeds" to be
As relevant to the current dispute, section 1602 can be parsed to read as follows: "An entity may not [(1)] substantially divert or obstruct the natural flow of, or [(2)] substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or [(3)] deposit or dispose of debris, waste, or other material ... where it may pass into any river, stream, or lake [absent, inter alia, notification to the Department]."
The Legislature has declared section 1602's explicit legislative purpose to be as follows: "The Legislature finds and declares that the protection and conservation of the fish and wildlife resources of this state are of utmost public interest. Fish and wildlife are the property of the people and provide a major contribution to the economy of the state, as well as providing a significant part of the people's food supply; therefore their conservation is a proper responsibility of the state. This chapter is enacted to provide conservation for these resources." (§ 1600; see Stats. 2003, ch. 736, § 2, pp. 5522-5523.) With insubstantial changes, this is the same purpose as when the statute was first enacted. (See Stats. 1961, ch. 909, § 2, p. 2532.)
Questions soon arose surrounding the interpretation of "substantially" and "divert." Some argued that substantially was too vague, and some, including the Farm Bureau and allied amici curiae, contend divert refers to diverting the streambed itself, and not merely pumping (or otherwise taking) water therefrom. Although divert is the key term for our purposes, some discussion of both terms is necessary to fully understand the contentions on appeal.
As for the term divert, the California Attorney General and one court have impliedly or directly invited the Legislature to clarify its meaning, to no avail.
In 1973, the California Attorney General considered, inter alia, whether a "person diverting water from a stream by means of a pump" was subject to former section 1602. (56 Ops.Cal.Atty.Gen 360 (1973).) While discussing related questions, the Attorney General pointed out that "the same factor which provides for steelhead and salmon spawning beds is that which attracts aggregate companies, an abundance of gravel. The Legislature was specifically concerned over the protection of salmon and steelhead spawning gravels from adverse aggregate operations when sections 1600 through 1603 were originally enacted in 1961." (Id. at p. 362, citing the Senate Report.) "Many spawning riffles that are used by salmon and steelhead during high flows are completely dry and exposed during low summer flows.... [¶] ... [¶] Aggregate companies during the long summer months can and do operate in these dry areas located in the flood plain and remove such gravel used for spawning in the winter. It is clear that a legislative purpose of [former] section 1602 was to protect gravels used by salmon and steelhead for spawning from aggregate operations." (Id. at p. 363.)
In language relevant to this appeal, the 1973 Attorney General opinion finds:
"Of course this provision applies to any method of diversion. The difficult question is what constitutes a `substantial' diversion of the natural flow. At least two possible detrimental effects on fish and wildlife resources come to mind. Pump diversions can divert all of the flow of a stream thus dewatering the area downstream. Pump diversions can also suck in small fish.
"Any pump diversion or series of pump diversions that are capable of dewatering a stream at extreme low summer flows or greater flows, or could result in detriment to fishlife in the stream because of flow reduction would constitute substantial diversion of the natural flow and thus come within the purview of [former] section 1602.
"All pump diversions are capable of diverting small fish, fry and eggs out of a stream, river, or lake but a general rule cannot be laid down for what would constitute a substantial diversion, because of the innumerable factual variations." (56 Ops.Cal.Atty.Gen., supra, at pp. 364-365, italics added.)
Thus, the 1973 Attorney General opinion concluded that mere pumping qualified as a diversion under the statute, but added the caveat that whether a diversion was substantial depended on the specific facts of each case.
Ten years later, Weaver (decided in 1983) contained a cautionary dictum, albeit in the context of defining substantial rather than divert:
"In enacting [former section 1602], we feel confident that the Legislature was not concerned with children skipping rocks across a stream, or building sand castles, or hikers dislodging a few stones as they climbed the bank of a river. On the contrary, by using the word substantially, the Legislature certainly intended to prohibit an owner from bulldozing material in a streambed which would cause the stream to change its course materially, or a like change which might interfere with the spawning grounds of anadromous fish, unless the plans were first approved by the Department (or found to have an insignificant effect upon the ecosystem in the vicinity of the projected change). Our conclusion is fortified by the language which prohibits using any material from the streambeds unless the Department was notified. Therefore, a person moving sand or gravel from a streambed acts at his peril unless he or she first notifies the Department.
Thus, Weaver raised a concern that the statute might have been written more broadly than intended, because it could be read to cover ordinary agricultural pumping, without movement of gravel or obstruction of a spawning reach. There was no legislative action to address the concerns expressed by Weaver or by the earlier Attorney General opinion.
The Legislature could easily have amended section 1602 if it perceived an interpretive problem. Indeed, as the trial court in this case observed, Weaver asked the Legislature to clarify what constituted a substantial diversion under the statute (Weaver, supra, 147 Cal.App.3d at pp. Supp. 33, 38), yet the Legislature did not do so. Thus it impliedly embraced the Attorney General's interpretation, by declining to clarify the language at issue despite revising the statute in other ways over the years.
The question of statutory ambiguity is not merely a linguistic question — although it is that — it is a question striking at the heart of California's lawmaking system. "The Legislature may make no law except by statute and may enact no statute except by bill." (Cal. Const., art. IV, § 8; see People's Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 325-326 [226 Cal.Rptr. 640].) A statute is the mechanism for exercising legislative power. Thus, statutory language is the measure of its meaning, and not some progenitor, be it the author of a precursor bill, or detritus from the legislative process. (See, e.g., Lungren v. Deukmejian (1988) 45 Cal.3d 727, 742 [248 Cal.Rptr. 115, 755 P.2d 299]; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699-701 [170 Cal.Rptr. 817, 621 P.2d 856].) Therefore, "[i]f the meaning of a statute can be declared without the support of a statutory text, the law is not made `by' the statute, it is made by the courts in violation of the Constitution." (City of Sacramento v. Public Employees' Retirement System (1994) 22 Cal.App.4th 786, 795 [27 Cal.Rptr.2d 545] (Sacramento).)
Thus, legislative history — a term now broadly used to mean the background materials that precede the enactment of a particular bill — is irrelevant unless it aids in resolving an ambiguity in the statutory language. (See People v. Snook (1997) 16 Cal.4th 1210, 1215 [69 Cal.Rptr.2d 615, 947 P.2d 808] [absent ambiguity "we presume the Legislature meant what it said and the plain meaning of the statute governs"].)
Moreover, the fact that "`"a statute can be applied in situations not expressly anticipated by [the Legislature] does not demonstrate ambiguity. It demonstrates breadth."'" (Estate of Earley (2009) 173 Cal.App.4th 369, 376 [92 Cal.Rptr.3d 577]; see Souza v. Lauppe (1997) 59 Cal.App.4th 865, 873-874 [69 Cal.Rptr.2d 494].)
"`An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.' [Citation.] `A claim of latent ambiguity requires a provisional examination of extrinsic matters to make the judgment whether the claim is tenable.' [Citations.] [¶] If extrinsic evidence factually conflicts, the trial court's resolution of that conflict is reviewed for substantial evidence, otherwise the trial court's ... interpretation ... is reviewed de novo." (Alameda, supra, 213 Cal.App.4th at p. 1180.)
With this understanding, we now examine the extrinsic evidence to determine if it shows the Farm Bureau's interpretation plausibly accounts for the statutory language so that its interpretation stands in relative equipoise to the Department's.
Before the enactment of the original statute, diversion meant: "A turning aside or altering the natural course of a thing" (1 Bouvier's Law Dict. (8th ed. 1914) p. 898, col. 1), "turning of a watercourse or a part of it out of its natural channel" (Ballentine's Law Dict. (2d ed. 1948) p. 391, col. 2, italics added), and "taking water from the channel in which it flows" (1 Cal. Digest Words & Phrases (Bancroft-Whitney 1960) p. 531, col. 2, italics added).
Thus the dictionary definitions, although not dispositive, strongly favor the Department's candidate of meaning.
Before the adoption of section 1602, the usage of divert in the context of California water law was entirely consistent with the Department's interpretation, and undermines the Farm Bureau's.
Leading California water treatises emphasize "`It is immaterial ... whether the water was taken from the river by means of a canal, ditch, flume, or pipe, or by any other method.' It is the fact of diversion, and not the mode, that is material." (Hutchins, supra, Exercise of Appropriative Right, p. 162, fn. omitted; see 1 Rogers & Nichols, Water for Cal. (1967) Riparian Rights, § 172, p. 233 ["riparian owner can divert water ... in any way he desires as long as he does not take more than his reasonable share..."]; see id., Appropriative Water Rights, §§ 204-206, pp. 294-298 [same rule for appropriators].)
A statutory definition flowing from a source predating section 1602, Water Code section 1706 (see Stats. 1943, ch. 368, § 1706, p. 1629), provides: "The person entitled to the use of water by virtue of an appropriation ... may change the point of diversion, place of use, or purpose of use if others are not injured by such change...." (Italics added.) As the trial court recognized, some cases interpreting this provision involve diverting water for ranching or other agricultural purposes. (See, e.g., Barnes v. Hussa (2006) 136 Cal.App.4th 1358, 1364-1365 [39 Cal.Rptr.3d 659]; Pleasant Valley, supra, 61 Cal.App.4th at pp. 746, 779.) Case law can help define terms, as we have noted in another case involving water law. (Osborn, supra, 116 Cal.App.4th at p. 773.)
What is more significant about Water Code section 1706 is that equivalent language appeared in Civil Code former section 1412, enacted in 1872, and
Consistent with such usage, California courts used the term divert to mean the mere taking of water from a channel. (Miller & Lux v. Enterprise C. etc. Co. (1915) 169 Cal. 415, 433 [147 P. 567] [opening headgate "would inevitably divert into the canal water that would otherwise pass into the slough"]; see Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist. (1935) 3 Cal.2d 489, 519 [45 P.2d 972] [pumping underground water described as a diversion]; Hutchins, supra, p. 249 ["Diversion of the water by raising it over the banks of the stream `by pump, or other similar appliances' has been specifically upheld"]; see also People v. Glenn-Colusa Irrigation Dist. (1932) 127 Cal.App. 30, 32 [15 P.2d 549] ["diversion ... by means of a battery of pumps located near the head of the canal"].)
As our Supreme Court has held, discussing riparian rights, "Whatever be the just proportion of water to which any riparian proprietor is entitled, that proportion cannot be diminished by the fact that in order to utilize it he must raise it from the bed of the stream by pumps, or other similar appliances. Every diversion of water from a stream is artificial — a disturbance of the natural order of things. A dam or a ditch is as much an artificial mechanism as a pump, it may indeed be much more so; and the one alters the natural conditions in the same sense that the other does. The right to take the water at all is a right to change the ordinary course of nature; and the methods employed, so long as their use does not infringe the like and equal rights of others, are immaterial." (Charnock v. Higuerra (1896) 111 Cal. 473, 480-481 [44 P. 171], italics added.) This broad meaning of diversion has never been changed in California water law. (See Simons v. Inyo Cerro Gordo Co. (1920) 48 Cal.App. 524, 537 [192 P. 144]; 62 Cal.Jur.3d (2013) Water, § 300, p. 374; 62 Cal.Jur.3d, supra, § 154, p. 209 [riparians]; 62 Cal.Jur.3d, supra, § 215, p. 274 [prescriptive rights].)
This reading of divert is consistent with its usage in a case involving the public trust doctrine. As stated by our Supreme Court: "`If the public trust doctrine applies to constrain fills which destroy navigation and other public trust uses in navigable waters, it should equally apply to constrain the extraction of water that destroys navigation and other public interests. Both actions result in the same damage to the public interest.'" (Audubon, supra,
Therefore, it is difficult to conceive that when the Legislature wrote "divert or obstruct," it did not understand that "divert" meant something other than "obstruct," because from time immemorial in California to divert meant to take water by any reasonable means that did not injure others with lawful rights to the same water.
In determining the meaning of divert in section 1602, it is also appropriate to consider how the Legislature has used that or similar terms in related contexts.
Water Code section 5100, former subdivision (b), adopted just a few years after section 1602 (see Stats. 1965, ch 1430, § 1, p. 3358), defines diversion
In contrast, Government Code section 40404, subdivision (c), adopted in 1949, well before section 1602, authorized local legislative bodies (see Gov. Code, § 34000) to condemn property for "[w]idening, straightening, or diverting the channels of streams." (Gov. Code, § 40404, subd. (c), italics added; see Stats. 1949, ch. 79, § 1, pp. 211-212.) The qualification that the diversion must pertain to the channels of streams shows that the term divert had a broader meaning and that the Legislature was aware of that meaning and wanted to limit it: In regards to condemnation, it did not intend this statute to apply to diversions of water unless those diversions changed the channels of the streams.
We note with particular interest that a fairly recent statute, enacted in 2012, adds a $10,000 civil penalty to deter diversions contravening section 1602 that are made for the purpose of facilitating production or cultivation of controlled substances on public lands, or while trespassing on private lands. (§ 12025, subd. (a)(1).) In adopting this statute, the Legislature in part found, "Many illegal marijuana growsites include water diversion with irrigation pipes, ... illegal damming and water diversion, and pesticides and insecticides that are sometimes added directly to streams and ponds." (Stats. 2012, ch. 390, § 1, subd. (a)(5).) Such "[i]llegal water diversion for the purpose of cultivating marijuana poses a direct threat to California's endangered coho salmon. To prevent their extinction from northern California waters, it is imperative that habitat restoration occurs." (Stats. 2012, ch. 390, § 1, subd. (a)(6).)
The trial court examined documents purportedly bearing on the legislative intent behind the words of the statute, both prior to the 1961 enactment, including the 1959 Senate Report referenced by both the 1973 Attorney General opinion and by the Weaver decision, and documents bearing on subsequent amendatory statutes.
In this case, the 1959 Senate Report referred to proposals that never passed, and that explicitly referenced mining activities. True, that Senate Report discussed the same problem addressed by section 1602, but it at best dimly illuminates the meaning of that statute or any statute, for that matter, when its language was not on the table.
It is true, as the trial court found, that the Senate Report detailed the deleterious effects of aggregate mining and streambed alteration on anadromous fish. We note that a separate statute passed in 1961 precluded using vacuum or suction dredge mining absent a permit, which the Department's predecessor would issue upon determining "that such operation will not be deleterious to fish." (Former § 5653; Stats. 1961, ch. 1816, § 1, p. 3864; see now § 5653 et seq.) There is no doubt that the lingering effects of California's mining history continued to affect fish, and that fact was well understood by the 1961 Legislature.
But contrary to the trial court's view, the fact that gravel extraction deemed harmful to anadromous fish motivated the adoption of the relevant statutes does not import into the word divert any requirement that such diversion be linked to gravel extraction, or streambed alteration: The Legislature properly could find the damage done by the gold rush required strong remedial measures extending to all forms of diversion.
The trial court found it significant that section 1602 does not refer to use of water, as did two sister-state statutes. These statutes were described in a report by Ralph N. Kleps, then the Legislative Counsel, included within the Senate Report, with the opinion that California "could enact similar legislation." According to his summary, an Alaska statute required notification for a "hydraulic project" or use of "any equipment that would use, divert, obstruct, pollute or change the natural flow or level of any river lake or stream" and Kleps stated the "Washington law is, in general, similar to the Alaska law."
In the trial court, the Farm Bureau argued the Legislature would not have intended to impact mere water extractions — without alterations of streambeds — pursuant to water rights without leaving some trace of such issue in the legislative record. (See, e.g., In re Christian S. (1994) 7 Cal.4th 768, 782 [30 Cal.Rptr.2d 33, 872 P.2d 574] ["We are not persuaded the Legislature would have silently, or at best obscurely, decided so important and controversial a public policy matter...."]; Ailanto Properties, Inc. v. City of Half Moon Bay (2006) 142 Cal.App.4th 572, 589 [48 Cal.Rptr.3d 340] ["The Legislature `does not, one might say, hide elephants in mouseholes.'"].) But the Legislature did not act silently on this subject: It acted by passing a statute using the word divert, which had a clear, preexisting meaning in the context of water law. That it did not explicitly address the then well-settled meaning of divert and the ensuing consequences of its actions creates no ambiguity in the word divert itself. (See In re Christian S., at p. 782 ["The depth of the debate is the domain of the Legislature."].)
Thus the legislative documents considered by the trial court do not raise a latent ambiguity in section 1602.
The Farm Bureau claims the Department has already administratively interpreted the provision in a manner favoring the Farm Bureau. We disagree.
Second, the Farm Bureau points to a biennial report to the Governor from the Department covering the period July 1, 1960, through June 30, 1962. This document gives a one-paragraph general description of the then "new" statute, in which it is stated — without analysis — that the notification requirement is applicable to "alteration of stream or lake beds." This report was designed to give an overview of the operations of the entire Department over a two-year period, and did not purport to give an authoritative interpretation of the new statute, merely a thumbnail sketch of it.
Third, the Farm Bureau points to the Department's view of the 2003 amendments to the relevant sections, in an enrolled bill report. The document references "Streambed Alteration Agreements" a term added to the statute in the 2003 amendments, and references what it called "the current streambed statutes." (See Stats. 2003, ch. 736, § 2, p. 5522, adopting current § 1601, subd. (a) ["`Agreement' means a lake or streambed alteration agreement."].) But the same document accurately states that the then current version of the statute "requires any person to notify the Department before commencing any activity that will substantially divert or obstruct the natural flow or substantially change the bed, channel, or bank of any river, stream, or lake." (Italics added.) This shows the Department did not view the statute as applicable only to activities that alter the streambed itself, despite the use of the shorthand descriptor "streambed alteration agreement."
More importantly, taking it as true — as the trial court found — that the Department has not previously enforced section 1602 absent streambed alteration, that is an insufficient basis on which to find the statute precludes it from doing so. In the face of extreme drought and piscatorial peril, the Department now wishes to employ the full measure of the law to substantial dewatering of streams absent physical alteration to the streambeds. Its previous lack of enforcement does not rewrite the statute. (See Bank of Italy v. Johnson (1926) 200 Cal. 1, 15 [251 P. 784] [agency head "may not by the adoption of any rule of policy or procedure so circumscribe or curtail the exercise of his discretion under the statute as to prevent the free and untrammeled exercise thereof in every case, for an attempt to do so would be for him to arrogate to himself a legislative function"].) "Mere failure to act ... does not constitute an administrative construction." (Estate of Madison (1945) 26 Cal.2d 453, 463 [159 P.2d 630]; see Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1369 [56 Cal.Rptr.3d 591] ["the mere failure to enforce the law, without more, will not estop the government from subsequently enforcing it"].)
In short, we see nothing in the Department's prior construction or enforcement of the statute that raises any latent ambiguity of meaning in the
The trial court posited that the Department's interpretation would lead to absurd results because, "Following [the Department's] argument and applying a literal interpretation, the preservation of fish and wildlife is the only factor to be considered in regulating [a] water right." The trial court separately expressed the view that the Department's interpretation might impair vested
Thus, section 1602, which helps ensure the continued beneficial use of California's water, does not of itself effect a taking under the Fifth Amendment of the United States Constitution or under article I, section 19 of the California Constitution. (Cf. B. C. Cotton, Inc. v. Voss (1995) 33 Cal.App.4th 929, 949-950 [39 Cal.Rptr.2d 484] [applying constitutional doubt canon where a contrary interpretation would raise a takings problem].) If a given diverter's usage is found to be substantial, requiring compliance with mitigation measures or halting such usage would not be a taking, but a proper exercise of regulatory police powers. (See People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal.App.3d 743, 753 [126 Cal.Rptr. 851] (Forni); Walston, The Public Trust Doctrine in the Water Rights Context: The Wrong Environmental Remedy (1982) 22 Santa Clara L.Rev. 63, 85-92 [reallocation of use under public trust doctrine and reasonable use provision of the Cal. Const. does not result in a compensable taking].)
Again, we emphasize that because no ambiguity is presented by the statute, the absurd result rule cannot be used to rewrite it, even if the effects of its application are perceived as unfair — or even absurd — by some.
Quite obviously, a severe drought, which has the effect of further damaging the habitat of an endangered fish species, must be part of the factual matrix considered in determining what is a reasonable use of the water — water which belongs to the people, and only becomes the property of users — riparian or appropriative — after it is lawfully taken from the river or stream. Past practices, no matter how long standing, do not change current reality. (See Audubon, supra, 33 Cal.3d at p. 447 [public trust doctrine case; "In exercising its sovereign power to allocate water resources in the public interest, the state is not confined by past allocation decisions which may be incorrect in light of current knowledge or inconsistent with current needs."]; United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 142 [227 Cal.Rptr. 161] (United States); see also id. at p. 150 ["the Board unquestionably possessed legal authority under the public trust doctrine to exercise supervision over appropriators in order to protect fish and wildlife"].)
Contrary to the parade of horribles posited by the Farm Bureau and some allied amici curiae, and evidently assumed by the trial court, if a different policy is desired, the Legislature may rewrite the statute. (See Osborn v. Hertz Corp., supra, 205 Cal.App.3d at p. 711.) In this connection we note that there is also no discussion — and could not have been any discussion — in the Senate Report of the consequences of the current drought on the viability of anadromous fish, vis-à-vis diversions of water. As we indicated ante, "`"[t]hat a statute can be applied in situations not expressly anticipated by [the Legislature] does not demonstrate ambiguity. It demonstrates breadth."'" (Estate of Earley, supra, 173 Cal.App.4th at p. 376, italics added.) Balancing the needs of fish and agriculture is a matter well within the Legislature's competence, and if this notification statute is viewed by that body to be too onerous to farmers and ranchers, it can change the statute to balance water usage needs as it deems appropriate.
The trial court also concluded that applying what it conceded was the plain meaning of section 1602 would delegate to the Department the authority to adjudicate water rights that is now vested in the Board, and also allow the Department to prioritize beneficial uses of water contrary to the Board's powers. However, the Board, appearing in this court via amicus curiae briefing, disavows any such conflict with the Department. Amici curiae Law Professors, too, support the Department and Board's view that the two agencies act together, not in conflict, regarding issues over overlapping concern. We agree that applying the plain meaning of section 1602 does not blur the lines of authority between these agencies.
The Farm Bureau's point appears to be not that the Department could not have been given the power that the plain meaning of section 1602 confers as we have interpreted it, but rather that it was not given that power, and our interpretation of section 1602 would upset the division of power the Legislature has established between the Board and Department.
Second, as the Department and Board emphasize, they have always had the statutory authority and duty to work cooperatively on issues of common concern.
"The Department is obligated to protect the fish and wildlife resources of the state (... §§ 1700, 5500 et seq.) which are the property of the people of the state (... § 1600), who have `the right to fish upon and from' the state's public lands and waters (state Const., art. I, § 25)." (Fullerton v. State Water
The Board is charged "with maximum flexibility to consider the competing demands of flows for piscatorial purposes and diversions for agricultural, domestic, municipal or other uses" when considering water appropriation claims, and the Board relies on the Department to advise it regarding matters within the Department's expertise, including fish. (Fullerton, supra, 90 Cal.App.3d at pp. 603-604.) The Board has the duty and expertise to administer water appropriations in the public interest, which includes all beneficial uses, including preserving and enhancing fish and wildlife resources. (See Wat. Code, §§ 1243 [fish and wildlife resources are a beneficial use], 1253 [Board shall allow appropriation of water "for beneficial purposes" that "in its judgment will best develop, conserve, and utilize in the public interest the water"], 13000 ["activities and factors which may affect the quality of the waters of the state shall be regulated to attain the highest water quality which is reasonable..."], 13050, subd. (f) [beneficial water uses include "preservation and enhancement of fish"]; United States, supra, 182 Cal.App.3d at pp. 103, 109-110, 116, 126, 130; Fullerton, supra, 90 Cal.App.3d at pp. 603-604.) The Board may act against riparians, too, who unreasonably use water. (United States, supra, 182 Cal.App.3d at pp. 140-142; Forni, supra, 54 Cal.App.3d 743; see Wat. Code, § 275.) It has "`broad,' `open-ended,' `expansive' authority to undertake comprehensive planning and allocation of water resources." (Audubon, supra, 33 Cal.3d at p. 449.)
Water Code section 1243, which declares preservation of fish as a beneficial use of water when the Board considers requests for water appropriations, recognizes the overlapping expertise of the Board and the Department, partly providing: "The board shall notify the [Department] of any application for a permit to appropriate water. The [Department] shall recommend the amounts of water, if any, required for the preservation and enhancement of fish and wildlife resources and shall report its findings to the board."
The Board itself, appearing as amicus curiae on behalf of the Department, states: "The notification requirement Section 1602 establishes for substantial diversions does not conflict with the [Board's] administration of water rights. In fact, Section 1602 can assist the Board in carrying out its responsibilities to protect public trust resources where feasible. Whether a subsequent agreement reached pursuant to Section 1602 conflicts with water right laws or a decision of the [Board] is entirely hypothetical. Even then, limitations on
The trial court also concluded that applying the plain meaning would mean the Department "is guaranteed the appropriation of a minimum in-stream flow for the preservation of fish and wildlife, contrary to law" because such appropriation would bypass Board approval. The Farm Bureau defends the view that applying section 1602 to mere dewatering will in effect grant the Department power to compel minimum in-stream flows. We disagree with this view.
We have previously rejected a claim that a different statute which we construed to require a minimum in-stream flow to preserve fish would be unconstitutional. (See California Trout, supra, 207 Cal.App.3d at pp. 622-625.) It has also been held that the Department cannot acquire an appropriative right to a minimum in-stream flow to preserve fish, for lack of a physical taking of the water, as required to perfect an appropriative right. (See Fullerton, supra, 90 Cal.App.3d at pp. 598-605.) These cases describe two different legal rules. Here, the Department seeks no appropriative rights but merely seeks to exercise the statutory mechanism for determining whether substantial diversions have occurred that may harm fish. This desire is consistent with the portion of Fullerton emphasizing the Department's role in informing the Board of piscatorial needs, before new appropriations are made. (Fullerton, supra, 90 Cal.App.3d at pp. 600-601.)
Accordingly, the Department's plain meaning interpretation of section 1602 does not intrude on the Board's powers or duties.
The judgment is reversed with directions to the trial court to enter judgment for the Department. The Farm Bureau shall pay the Department's costs of this appeal. (See Cal. Rules of Court, rule 8.278(a)(2).)
Robie, Acting P. J., and Murray, J., concurred.
Although we agree with amicus curiae Northern California Water Association's assertion that the state does not "own" all water, rather, the water is owned by the people of California (see Wat. Code, § 102 ["All water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law."]; see State of California v. Superior Court (2000) 78 Cal.App.4th 1019, 1022-1028 [93 Cal.Rptr.2d 276] [insurance coverage case]), we find this distinction to be of no relevance to our decision.
