PUB00109

• Year: 1995
• Title: Califormia Water
• CWCB Section: Interstate & Federal
• Author: Arthur L. Littlewort
• Description: History, overview, and explanation of water rights and legislation of California
• Publications - Doc Type: Historical

A court may refer a water rights case to
the State Board for a report on the facts
or on all issues.

Recent cases raise questions about the
efficiency of the reference procedure.

66 CALIFORNIA WATER

The State Board initially adopts an order of determination that
is then filed with the court, which issues a final decree. Water Code
~ 2750-2783. The decree of the court is the fmal adjudication of the
rights of all existing claimants to waters in the system. Water Code
~ 2768. The decree declares the water rights of each party, including
the priority and amount, point of diversion, and season, purpose,
and place of use. Water Code ~ 2769. The decree may also make
allowances for incomplete appropriations for which the rights can be
confirmed in the supplemental decree. Water Code ~ 2801. Statutory
adjudication proceedings have been upheld as constitutional. Wood
v. Pendola (1934) 1 Cal.2d 435, 442-444. The California Supreme
Court has stated that a claimant, for the purposes of statutory adju-
dication' may include persons seeking recognition of public trust uses
on a stream-wide basis. National Audubon Society v. Superior Court
(1983) 33 Cal.3d 419, 431, fn. 11.

Reference Procedure. The Water Code authorizes both the state and
federal courts to request the State Board to act as referee in any dis-
pute involving water rights. Water Code ~ 2000 et seq. The request
for a reference is usually done by motion of one or more of the par-
ties and may be opposed. An order of reference may cover all issues,
in which case the State Board is asked to decide the case, or the
order of reference may request only an investigation of any or all of
the physical facts. Water Code ~ 2001. The State Board may control
its own investigation and report procedures without interference by
the referring court. Water Code ~ 2010; Pasadena, page 918.
After its investigation, the State Board produces a report that
contains its fmdings on the law and the facts. Water Code ~ 2010. The
parties may take exceptions to the report, which are then determined
by the court in a de novo trial. Delay is often an advantage to some of
the parties in water rights litigation, and a motion for reference may
be made for that purpose. There is also some question about the effi-
ciency of the reference procedure. In two recent cases, despite several
years spent before the State Board pursuant to a reference order,
lengthy trials were still required. Los Angeles v. San Fernando (1975)
14 Cal.3d 199; Environmental Defense Fund v. East Bay Municipal
Utility District (Superior Court Alameda Co. (1990) No. 425955).

Dedication to Public Use
A public entity requiring water may secure water rights through
eminent domain proceedings. With the doctrine of intervening
public use, water appropriated for public use may also become
dedicated to public use without the owner's actual consent. This