In re Cow Creek Water Rights CA3

Filed 2/17/16 In re Cow Creek Water Rights CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ----

In re COW CREEK WATER RIGHTS. C073564

GEORGE MCARTHUR, (Super. Ct. No. 38577)

Plaintiff and Appellant,

v.

CLYDE GRECO et al.,

Defendants and Respondents.

Plaintiff George McArthur sought to amend a judicial decree so that it would allow him to transfer his water rights to third parties. The trial court denied his request. After the trial court issued its order, the Legislature enacted a statute that could provide

1

plaintiff the authority he seeks. We reverse and remand this matter so the trial court may reconsider its ruling in light of the recent statute. The California Water Code provides a procedure whereby a court may declare the rights of various claimants to water from a stream system. (Wat. Code, § 2500 et seq.) This procedure, known as a statutory adjudication, authorizes the State Water Resources Control Board (the Board) to investigate and determine a group of claimants’ rights to water in a particular stream system. Following its investigation, the Board enters an order determining the claimants’ rights to the water, and it files the order with the superior court for summary judicial proceedings. In turn, the superior court, after a hearing, enters a decree determining the claimants’ water rights.1 In 1969, the Shasta County Superior Court entered a decree establishing claimants’ rights to water from the Cow Creek stream system (the Decree). The Decree allocates the amount of water parties to the Decree may receive from Cow Creek and designates the locations where parties may use their allocated water. The Decree also defines the specific purposes to which parties may use their allocated water.

1 Our Supreme Court defined the process as follows: “Under provisions for a statutory adjudication of water rights (Wat. Code, § 2500 et seq.), the Board may determine ‘all rights to water of a stream system whether based upon appropriation, riparian right, or other basis of right’ (Wat. Code, § 2501). The proceeding is initiated by a petition of one or more claimants to the stream system’s water. If the Board finds that the public interest and necessity will be served by such a determination, it enters an order granting the petition. (Wat. Code, § 2525.) There ensues an investigation, notice, filing of proof of claims, and a hearing for contests of proof of claims. (Wat. Code, §§ 2550, 2575, 2600, 2650.) Following the hearing, the Board enters an ‘order determining and establishing the several rights to the water of the stream system.’ (Wat. Code, § 2700.) A certified copy of the order is ‘filed with the clerk of the superior court of the county in which the stream system or some part thereof is situated.’ (Wat. Code, § 2750.) The superior court then holds a hearing (Wat. Code, § 2751) and enters ‘a decree determining the right of all persons involved in the proceeding.’ (Wat. Code, § 2768.)” (In re Water of Hallett Creek Stream System (1988) 44 Cal.3d 448, 454, fn. 1.)