Introduction
On February 14, 2018, the County of Inyo filed a condemnation action against Los Angeles Department of Water and Power (LADWP) in Inyo County Superior Court. The filings request the court to approve Inyo County’s acquisition by eminent domain of three landfills located in Owens Valley of California’s Eastern Sierra Nevada Mountains.1 Inyo County’s legal action comes after more than a century of conflict over Owens Valley’s land and water between the Owens Valley residents and the City of Los Angeles. As an eminent domain action between two municipal entities, Inyo County must demonstrate its ability to put the properties to a “more necessary public use” than LADWP.2 The court’s ruling will reflect on California’s history of prioritizing urban over rural development and the potential for local governments to regain control of natural resources from absentee rights holders.
The court should incorporate the value of local community control of land and water in its determination of what constitutes “more necessary public use.” Approving the condemnation action and placing the landfills’ land and water rights with Inyo County would confer greater opportunity for its population to provide input on the administration of resources through local politics and civic engagement. This precedent would endorse a vision of eminent domain’s public use standard beyond economic valuation, to encourage natural resource use that is responsive to the priorities of the surrounding population.
I. The California Water Wars
When California became a state in 1850, its arid climate necessitated a new system of water rights to encourage mass migration and settlement. Tension between California’s hasty adoption of common law and the reliance of California’s early gold mining and agricultural industries on irrigation resulted in a water regime that recognized both riparian and prior appropriation water rights.3 Riparian rights, used in the eastern United States, gives water rights to owners of land adjacent to the water source. Prior appropriation allocates water rights to the first-in-time productive user of the water, allowing for diversion of water from its original source. Prior appropriation was convenient to administer in the absence of a land office4 and rewarded settlers’ “entrepreneurial” efforts.5 Legal recognition of prior appropriation water rights allowed settlers to claim private ownership of resources, thereby encouraging and rewarding settlement in California.
The arrival of white settlers to Owens Valley initiated the legacy of dispossession and displacement which came to define the region’s conflicts over water. Paiute Shoshone Indian tribes, including the Lone Pine, Big Pine, Mono, and Fort Independence tribes, lived in Owens Valley before the discovery of California’s gold and silver drew miners and cattlemen to the region. In 1861, scarce conditions ignited the Owens Valley Indian Wars between the Paiute Shoshone and the newly arrived settlers.6 The wars ended in 1863 when the U.S. military forcibly relocated the local Paiute Shoshone to Fort Tejon and the San Sebastian Reservation.7 As the displaced Paiute Shoshone returned to Owens Valley over the following decades, they found their native lands converted to private use in Owens Valley’s emerging mining and agricultural economy.8
Meanwhile, Californian coastal cities like LA experienced explosive population growth. In just fifty years, from 1860 to 1910, LA’s population grew from 4385 to 319,198 people.9 Water was the most important factor in the history and growth of LA.10 Early on, the Los Angeles River sufficiently provided water to LA, but finding new sources of water was essential to sustaining LA’s population growth.
In the early 1900s, William Mulholland identified Owens Valley as LA’s new source of water. Mulholland founded LADWP in 1902 and over the next several decades quietly purchased land with the help of the City, until LADWP’s ultimate holdings were approximately 300,000 acres, or 97 percent of all privately owned land in Inyo and Mono counties.11 Owens Valley settlers’ privatization of land and water facilitated LA and Mulholland’s ability to purchase the land directly without revealing their broader intensions of diverting the water to LA.12
LA’s efforts to appropriate Owens Valley’s water contradicted the initial objectives of federal investment in California. The federal government offered aid to construct irrigation systems to convert the arid and semiarid land into an ecosystem suitable for agriculture.13 LA and Mulholland worked with the Bureau of Reclamation, however, to ensure residents of Owens Valley never received federal aid, increasing the likelihood that farmers would sell their lands.14 In 1906, U.S. Congress passed an act that gave LADWP right of way access to build an aqueduct from Owens Valley to LA.15 Congress’s approval of the LA Aqueduct directly endorsed siphoning water from Owens Valley, prioritizing the urban city’s growth.
The LA Aqueduct was completed in 1913.16 Throughout the 1920s, however, Owens Valley residents protested against LADWP, including dynamiting sections of the aqueduct pipeline and kidnapping LADWP agents. As the protests intensified, LADWP distributed propaganda depicting Owens Valley residents as lawbreakers, attempting to sway public opinion in LA.17 Because LADWP is a municipally owned utility company, LA residents directly influence LADWP’s projects through city elections. An early example of LA residents exerting voter power over LADWP came in 1911, when voters approved construction of hydroelectric sites along the aqueduct. The installation of hydroelectric sites on the LA Aqueduct improved LA’s energy self-reliance but also intensified the financial stake LA had in the productivity of the LA Aqueduct and the continued flow of water from Owens Valley. Today, LADWP is the largest municipal utility in the United States, serving nearly four million people18 and contributing, as of recently, roughly $250 million to LA’s annual budget.19 Inyo County residents lack similar opportunity to voice input through civic procedures. Instead, they must rely on litigation to challenge LADWP in court for the threat or realization of harm resulting from LADWP’s conduct.
II. Litigating Rights to Water
The most significant source of water flowing through the LA Aqueduct came from surface water rights which LADWP acquired in 1905, allowing diversion of up to 50,000 miner’s inches (or 1250 cubic feet per second) from the Owens River.20 LADWP’s majority ownership of the land in Owens Valley also allows it to pump significant amounts of ground water.21 By 1926, the diversion of water from Owens River transformed Owens Lake into a dry lakebed.22 Without water cover, the lake became the largest emitter of PM10 particulate matter in the country, creating dangerous health impacts for the surrounding communities including respiratory problems and cancer.23 Moreover, the depletion of ground water caused natural vegetation to disappear. These health and environmental harms gave rise to a series of legal challenges to govern water appropriation from Owens Valley. This resulted in the Long Term Agreement in 1991 to regulate the allocation of groundwater and the State Implementation Plan (SIP) in 2016 to oversee dust mitigation efforts on Owens Lake.24
But as water becomes scarce, LADWP has demonstrated a willingness to forego its contractual obligations to Inyo County. In April 2015, when drought conditions thought to be intensified by climate change reduced water flow from the Sierra Nevada Mountains, LADWP announced it would shut off of all water to Owens Valley with only three days’ notice, threatening residential and commercial access to water.25 Despite the Long Term Agreement’s prohibition against LADWP unilaterally terminating water to Inyo County, it took the threat of a court injunction before LADWP retreated from its position.26
LADWP’s actions during the drought renewed anger over LADWP’s apparent disregard for its obligations to Inyo County residents.27 In response, LA Mayor Eric Garcetti stated:
[I]t’s a false dichotomy . . . . Turning city folk against rural folk, in California we are in this together. And we for instance just made peace with Owens Valley . . . . After a hundred years of fighting we’ve made peace. Which will return more water to them, more water to us and not . . . do stupid things like mitigate dust on a dry lake bed.28But Garcetti’s remarks reflected his unawareness of some Inyo County residents’ priorities for water use.29
Gravel cover, an alternative to using water to mitigate dust from Owens Lake, allows LADWP to fulfill their obligations under the SIP at lower cost and to increase water available to LA. However, laying gravel is a disruptive process, especially to the tribal cultural resources on and near the lakebed. The Native American Grave Repatriation Act30 and California Assembly Bill 5231 require tribal consultation for development projects that disturb earth. Speaking to the Inyo County Board of Supervisors, Kathy Jefferson Bancroft, Tribal Historic Preservation Officer (THPO) for the Lone Pine Paiute-Shoshone Tribe, stated:
[N]umerous resources have been discovered since the start of [LADWP] projects on the lake and they are being found by being destroyed. . . . [T]he sites and resources need to be recorded and Tribal history and input regarded. . . . [And] much of the problem comes from projects being started at the last-minute, and not properly planned ahead of time so that resources can be spared. . . . [T]he current “Best Available Control Measures” [including gravel cover] are creating a high-maintenance artificial environment that is also causing damage.32Danelle Bacoch Guterriez, THPO for Big Pine Paiute-Shoshone Tribe, added she hopes the Board of Supervisors understands “the value Tribes hold in those resources and the health issues involved.”33 With LADWP’s profits at odds with the priorities of Owens Valley residents, Bancroft’s and Guterriez’s remarks demonstrate the difficulties of compelling an absentee rights holder to work equitably with the local population.
III. Eminent Domain
The recent condemnation action by Inyo County in County of Inyo v. Los Angeles Department of Water and Power follows this history of confrontation between Inyo County and LADWP and tests the ability of local government to condemn land and water use. A California Code of Civil Procedure amendment allows for condemnation actions between public entities if the property is appropriated to a “more necessary public use.”34 Outside limited guidance,35 the burden is on the condemnor to demonstrate their use is more necessary than the condemnee’s use. However, there are yet to be any published decisions clarifying this standard. A lack of precedent or legislative guidance gives the court a significant role in interpreting California’s “more necessary public use” eminent domain doctrine.36
County of Inyo presents an opportunity for the court to turn away from perceiving public use in economic terms to consider the importance of local control of land and water resources. While historically California courts and the legislature have valued development of LA’s urban economy above Owens Valley’s agricultural economy, other existing law supports protecting local use of water. California’s area of origin laws attempt to abate concerns of another “Owens Valley type water grab” by prioritizing local water rights over new interregional projects.37 While LADWP’s activities are largely unaffected by them,38 the laws were enacted as a response to the recognized injustices against Owens Valley residents.39
In approving Inyo County’s condemnation action, the court would allocate the landfills’ land and water rights to Inyo County. Inyo County residents, who currently lack political influence over LADWP, would then have the opportunity to affect land and water use decisions on those properties through local elections and civic engagement. While not directly restorative of the lands dispossessed from the Paiute Shoshone, incorporating local control into the court’s interpretation of “more necessary public use” would help transition management of some resources closer to the Owens Valley tribes and residents who have been most affected by LADWP’s policies. By acknowledging the value of local control of land and water, the court would imbue California’s “more necessary public use” standard with a more attentive assessment of societal relationships to natural resources which support the livelihoods of local residents.40
[1] Eminent domain is the government’s taking of private property for a “public use” with “just compensation.” See Cal. Const. art. 1, § 19(a).
[2] See Complaint in Condemnation & Demand for Jury Trial ¶ 3, Inyo County v. L.A. Dep’t of Water & Power, No. SICVCV-1862064 (Cal. Super. Ct. Feb. 14, 2018); Complaint in Condemnation & Demand for Jury Trial ¶ 3, Inyo County v. L.A. Dep’t of Water & Power, No. SICVCV-1862065 (Cal. Super. Ct. Feb. 14, 2018); Complaint in Condemnation & Demand for Jury Trial ¶ 3, Inyo County v. L.A. Dep’t of Water & Power, No. SICVCV-1862067 (Cal. Super. Ct. Feb. 14, 2018); cf. Cal. Const. art. 1, § 19(a), (c)-(d).
[3] See e.g., Lux v. Haggin, 4 P. 919 (Cal. 1884).
[4] See Robert G. Dunbar, Forging New Rights in Western Waters 61 (1983).
[5] See Barton H. Thompson, Jr., John D. Leshy & Robert H. Abrams, Legal Control of Water Resources 191, 238 (5th ed. 2013).
[6] See John W. Key, The Owens Valley Indian War 1861-1865 (unpublished thesis, U.S. Army Command and General Staff Coll., 1979), http://vredenburgh.org/tehachapi/data/owenswar.htm.
[7] See id.
[8] See Owens Valley Paiute, Nat’l Park Serv., https://www.nps.gov/manz/learn/historyculture/owens-valley-paiute.htm (last updated Feb. 28, 2015).
[9] Historical General Population City & County of Los Angeles, 1850 to 2010, L.A. Almanac, http://www.laalmanac.com/population/po02.php (last visited Sept. 16, 2018).
[10] Raphael J. Sonenshein, Los Angeles: Structure of a City Government, The League of Women Voters of L.A. 94 (2006), https://my.lwv.org/sites/default/files/leagues/los-angeles/structureofacity.pdf.
[11] See County. of Inyo v. Yorty, 108 Cal. Rptr. 377, 380 (Cal. Ct. App. 1973).
[12] See id.
[13] See Reclamation Act of 1902, Pub. L. No. 161, ch. 1093 (1902).
[14] See Thompson et al., supra note 5, at 240.
[15] Act. of June 30, 1906, ch. 3926, § 4, 30 Stat. (1906) (enacted).
[16] Los Angeles Aqueduct, History (2010), http://www.history.com/topics/los-angeles-aqueduct.
[17] See Leslie Maryann Neal, 1924 Owens Valley Protests Foreshadow California’s Scary Drought Problems, All That’s Interesting (Aug. 21, 2014), 2.
[18] See L.A. Dep’t of Pub. Works, Urban Water Management Plan ES-6 (2015).
[19] See Despite Public Criticism, DWP Transfers $241.8 Million to LA’s General Fund, L.A. Daily News (Nov. 28, 2017, 5:58 PM), https://www.dailynews.com/2017/11/28/despite-public-criticism-dwp-transfers-241-8-million-to-las-general-fund/.
[20] See L.A. Dep’t of Pub. Works, supra note 18.
[21] See County of Inyo v. Yorty, 108 Cal. Rptr. 377, 380 (Cal. Ct. App. 1973).
[22] Owens Lake Background, Great Basin Unified Air Pollution Control District, http://www.gbuapcd.org/OwensLake/Background/ (last visited Sept. 21, 2018); see also County of Inyo v. Pub. Utils. Comm’n, 604 P.2d 566, 567 (Cal. 1980).
[23] PM10 is particulate matter which measures less than 10 microns in diameter. Measurements find the air in excess of the National Ambient Air Quality Standard for PM10 more than fifty miles away from the lake, believed to include 40,000 people. See Owens Lake Background, supra note 22.
[24] See Stipulation & Order for Judgement at 10, County of Los Angeles v. Bd. of Supervisors, No. 12908 (Cal. Super. Ct. Oct. 18, 1991); Ramboll Environ, Great Basin Unified Air Pollution Control District, 2016 Owens Valley Planning Area PM10 State Implementation Plan (2016).
[25] See Owens Valley Committee Responds to LA Mayor Garcetti, Sierra Wave Media (July 22, 2015), http://www.sierrawave.net/owens-valley-committee-responds-to-la-mayor-garcetti/.
[26] See id.
[27] See Chris Hayes, LA Mayor Garcetti on Adapting to Historic Drought, MSNBC (July 14, 2015), https://www.msnbc.com/all-in/watch/la-mayor-garcetti-on-adapting-to-historic-drought-484366915772; see also Sierra Wave Media, supra note 25.
[28] Id.
[29] See Sierra Wave Media, supra note 25.
[30] See Native American Graves Protection and Repatriation Act (NAGPRA), Pub. L. No. 101-106, 104 Stat. 3048 (1990) (codified as amended at 25 U.S.C. §§ 3001–3013 (2018)).
[31] See Cal. State Assemb. Bill No. 52, ch. 532 (2014).
[32] Meeting Minutes for September 12, 2017, Bd. Supervisors Cty. Inyo (Sept. 12, 2017), https://www.inyocounty.us/Board_of_Supervisors/Minutes/2017-09-12.pdf. An example of why tribal monitors need to be present for dust mitigation efforts came in 2013, when LADWP archaeologists uncovered evidence of an 1863 massacre on the lakebed. Remarking on the massacre Bancroft stated, “We take this personally—my grandmother told me about this massacre and she knew the people it happened to. . . . This ground, and the artifacts in it, is who we are.” The massacre occurred during the Owens Valley Indian Wars when settlers and U.S. military soldiers chased thirty-five Paiute Shoshone Indians into Owens Lake where they were shot or drowned. See Louis Sahagun, DWP Archaeologists Uncover Grim Chapter in Owens Valley History, L.A. Times (June 2, 2013), http://articles.latimes.com/2013/jun/02/local/la-me-massacre-site-20130603.
[33] Meeting Minutes for September 12, 2017, supra note 32, at 5.
[34] Cal. Civ. Proc. Code § 1240.610 (West 2018).
[35] See Cal. Civ. Proc. Code § 1240.670-1240.680 (West 2018).
[36] See Joris Naiman, Note, Judicial Balancing of Uses for Public Property: The Paramount Public Use Doctrine, 17 B.C. Envtl. Aff. L. Rev. 893, 911 (1990); see also Cal. Civ. Proc. Code § 1220.050 (West 2018) (allocating discretion in condemnation actions to the judiciary).
[37] Craig M. Wilson, California's Area of Origin Laws: A Report to the State Water Resources Control Board and the Delta Stewardship Council 5 Cal. Water Bds. (2013), https://www.waterboards.ca.gov/board_info/agendas/2013/oct/100813_7origin.pdf; see Thompson et al., supra note 5, at 238.
[38] For example, some area of origin laws only apply to permits and licenses granted after the enactment of California’s Water Code. Therefore, these laws do not apply to LADWP’s pre-1914 appropriator, riparian, or percolating ground water rights. Joseph L. Sax, Reserved Public Rights in Water, 36 Vt. L. Rev. 535, 541 n.25 (2012).
[39] See Wilson, supra note 37.
[40] See Complaint in Condemnation & Demand for Jury Trial, No. SICVCV 186-2067, supra note 2; see also Dominic Moulden & Amanda Huron, Creating the Commons, Shelterforce (May 2, 2018), https://shelterforce.org/2018/05/02/creating-the-commons/.
