2011-00112886-CU-JR

Modesto Irrigation District vs. Heather Robinson Tanaka

Nature of Proceeding:   Motion for Summary Judgment and/or Adjudication

Filed By:  Bullock, Matthew G.

Defendant State Water Resources Control Board’s (“Board”) motion for summary
judgment is GRANTED.

This action involves a dispute over water rights and the Board’s duty to take action
against an allegedly unlawful diverter, Co-Defendant Heather Robinson Tanaka
(“Tanaka”).  Plaintiff Modesto Irrigation District (“MID”) lawfully diverts water from the
San Joaquin River System.  Tanaka diverts water as well.  MID contends that
Tanaka’s diversion is unlawful and injures MID’s interests as a lawful diverter.

In 2009 the Board contacted Tanaka and requested information substantiating her
water rights.  MID also complained to the Board about Tanaka’s diversion of water.
The Board has not taken enforcement actions against Tanaka to ensure that she does
not unlawfully divert water.  Several months after it filed its administrative complaint
with the Board, MID withdrew the complaint and filed the instant civil action against
both Tanaka and the Board.

MID’s civil complaint contains six causes of action for declaratory or injunctive relief.
In the first three causes of action (against Tanaka only), MID seeks declarations that
Tanaka does not hold any rights to the water she allegedly diverts.  The fourth and fifth
causes of action (also against Tanaka only) seek injunctions barring Tanaka from
diverting water in the future.

Only the Sixth Cause of Action for Injunctive Relief is directed at the Board.  In support
of this cause of action, MID alleges at paragraphs 70 and 71 of the complaint:

70. The State Board has violated the public trust by allowing unlawful
Delta diversions, including Defendant Tanaka’s diversions, to continue
without enforcement. These unlawful diversions take water away from
the public trust uses the State Board is affirmatively required to protect.         71. Further, the uncertainty created by unlawful Delta diversions,
including the unlawful diversions of Defendant Tanaka, preclude the
State Board from properly administering the public trust. [Citation.] The
administration of the public trust requires the State Board to protect the
public trust when allocating water resources, such as considering water
right applications and amending existing water rights. [Citation.] The
State Board cannot properly evaluate the impact of new applications or
the amendment of existing water rights on the public trust if it does not
understand the existing system demands. [Citation.] Despite the
significant uncertainty caused by unlawful Delta diversions, the State
Board has undertaken the regulation of legal public trust uses, while
refusing to enforce illegal Delta diversions, thereby violating the public
trust.”  (Citations omitted.)

Based upon these allegations, MID prays for a declaration that the Board violated the
public trust.  It also prays for an injunction “barring the State Board from continuing to
violate the public trust and requiring the State Board to ensure that Tanaka does not
divert water unlawfully.”  (Compl. at 17, ¶ 6.)

The Board now moves for summary judgment and raises several arguments
contesting the viability of the sixth cause of action.  Because the court agrees that MID
should not be permitted not maintain this lawsuit against the Board, it grants the
motion.

Preliminarily, the court reiterates that the only cause of action against the Board is one
for injunctive relief.  An injunction, however, is only a remedy, not an independent
cause of action.  (See, e.g., Marken v. Santa Monica-Malibu Unified School Dist.
(2012) 202 Cal.App.4th 1250, 1266 [citation omitted].)  Thus, the court could treat the
instant motion as one for judgment on the pleadings and grant the motion with leave to
amend.  The court declines to do so because it is clear from MID’s prayer that it seeks
a declaration of the Board’s enforcement duties in addition to an injunction.  Thus,
although the only cause of action against the Board is denominated as one for
injunctive relief, the allegations and prayer collectively can be construed to establish a
cause of action for declaratory relief.

As noted above, the only declaration that MID seeks as against the board is that the
latter “violated the public trust.”  The court will not make such a declaration because it
is purely retrospective in nature.  (See Doan v. State Farm Gen. Ins. Co. (2011) 195
Cal.App.4th 1082, 1096 [“Declaratory relief operates prospectively, serving to set
controversies at rest before obligations are repudiated, rights are invaded or wrongs
are committed”] [citation omitted]; accord County of San Diego v. State of California
(2008) 164 Cal.App.4th 580 “Declaratory relief operates prospectively to declare future
rights, rather than to redress past wrongs”] [brackets and citations omitted].)

Nonetheless, even assuming the allegations state a valid cause of action for
declaratory relief, i.e., for a declaration that the Board is violating or will violate its duty
to protect the public trust, the court concludes that the motion should be granted.  To
the extent MID seeks a declaration that the Board is violating or will violate its public
trust duties because it refuses to take any anti-diversion enforcement action against
Tanaka, it is superfluous.  In the first five causes of action, MID asks the court to
declare Tanaka’s diversions unlawful and enter an injunction barring her from diverting              water in the future.  If the instant action results in a determination that Tanaka is not
entitled to divert water, then the court can grant appropriate injunctive relief, and a
declaration and/or injunction obligating the Board to issue Tanaka a cease and desist
or otherwise bar her from doing the same would serve no purpose other than to
duplicate efforts.  Similarly, if the court determines that Tanaka is entitled to divert
water and on that basis denies injunctive relief, there will be no need for the Board
take up the issue of Tanaka’s rights to divert.  In fact, if the Board were to consider that
issue after this court had already decided it, then at worst this case could give rise to
inconsistent decisions about Tanaka’s water rights, and at best it would result in
duplicative determinations.  The court declines to issue a declaration of the Board’s
duties under these circumstances.  (See CCP § 1061 [“The court may refuse to
exercise the power granted by this chapter in any case where its declaration or
determination is not necessary or proper at the time under all the circumstances”];
Girard v. Miller (1963) 214 Cal. App. 2d 266, 277 [“The availability of another form of
relief that is adequate will usually justify refusal to grant declaratory relief”]; see also
Aetna Cas. & Sur. Co. v. Aceves (1991) 233 Cal.App.3d 544, 554-556 [trial court
abused its discretion by summarily adjudicating declaratory relief cause of action that
brought potential for inconsistent judgments].)

The only relief that MID prays for and which its causes of action against Tanaka do not
encompass is its request for an injunction “barring the Board from continuing to violate
the public trust… .”  (Compl. at 17, ¶ 6.)  The existence of this prayer does not alter the
court’s decision to grant summary judgment because, assuming the complaint
contains an otherwise viable cause of action to support the prayer, MID is not entitled
to such an injunction.  The Board’s evidence demonstrates the nonexistence of a
triable issue as to whether it generally carries out its enforcement duties.  (See
Undisputed Material Facts 6-7, 16.)  MID’s evidence, however, does not demonstrate
the existence of a triable issue.  (Id.)

The motion is GRANTED.

The Board’s evidentiary objections are OVERRULED.

MID’s objections are OVERRULED, except its final objection to Paragraph 15 of the
O’Hagan Declaration, which is SUSTAINED.

Pursuant to CRC 3.1312, the Board is directed to submit a formal order for the court’s
signature, and a judgment.