Judge allows Mojave an extension

Mojave Pistachios Joshua Nugnet Spokesperson– On August 5, 2021, Judge Kirk Nakamura of the Orange County Superior Court issued a tentative decision, before the court held hearing agreeing with IWVGA that Causes of Action (COA) Nos. 6 (replenishment fee) and 14-18 (takings) should be dismissed with prejudice and without leave to amend the claims. The Court preliminarily reasoned California’s “pay first, litigate later” doctrine prevents any aggrieved person from challenging agency actions that would necessarily prevent IWVGA from collecting the Replenishment Fee, without first paying the fees. During the hearing, attorney for Mojave, Scott Slater, argued that the Court’s basis for dismissal was too broadly applied and would imply that the California state constitution overrides federal constitutional protections. Mr. Slater further explained that the challenges encompassed by COA Nos. 14-18 are independent claims to protect water rights that could be pursued without directly challenging the Replenishment Fee.

The Court ultimately allowed Mojave 20 days to amend COA Nos. 14-18 (takings claims) to preserve its constitutional claims. We believe this leave to amend will demonstrate that Mojave is challenging the IWVGA’s underlying actions that unlawfully determined water rights via the Groundwater Sustainability Plan (GSP) and other implementing actions. The Court also allowed Mojave 20 days to amend its First Amended Complaint and Petition (FAP) to clarify the scope of COA No. 2 (earlier extraction fee). While the Court ultimately dismissed the COA No. 6 (direct challenge to replenishment fee), the remaining causes of actions, combined with these future amendments, will allow Mojave to continue to challenge IWVGA’s actions that illegally adjudicated water rights without due process of the law and to litigate the damages incurred by Mojave.

In summary, all claims challenging the GSP will continue. If the GSP (or Sustainable Yield Report and Allocation Plan) falls, the replenishment fee falls. And if the GSP case survives - our taking case addresses the damages.

Story First Published: 2021-08-13