CALIFORNIA TROUT, INC. et al., Plaintiffs and Appellants, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Respondents, CITY OF LOS ANGELES, City of Los Angeles Department of Water and Power, Real Parties in Interest and Respondents.
This is a consolidated appeal from the denial of petitions for writs of mandate filed by California Trout, Inc., National Audubon Society and Mono Lake Committee (plaintiffs) to command the State Water Resources Control Board (Water Board) to rescind two licenses confirming rights to the appropriation of water. The licenses validate the diversion of water from four creeks in Mono County, tributaries to Mono Lake, for the generation of power and for domestic uses by the City of Los Angeles and its Department of Water and Power (collectively referred to as L.A. Water and Power). Plaintiffs contend that the licenses are in violation of Fish and Game Code section 5946,1 which directs that licenses for the appropriation of water in portions of Mono and Inyo Counties, issued after September 9, 1953, must contain conditions which comply with the mandate of section 5937 that sufficient water be released into the streams “to keep in good condition any fish that may be planted or exist below the [point of diversion].” The trial court denied the petitions on the view that section 5946 was not meant to apply to dams, as here, constructed before September 9, 1953. We reject that view.
We will conclude that the plain language of section 5946 gives priority to the uses of water specified in section 5937 and mandates that such priority conditions the appropriation of water authorized by licenses issued to L.A. Water and Power in 1974, 21 years after the effective date of the section.
L.A. Water and Power makes two principal statutory arguments to the contrary. First, section 5946 does not apply when an appropriator takes all of the water from a stream. We answer that this reading would nullify the express requirements of section 5946. Second, the application of the statute to the licenses would be improperly retroactive because the right to appropriate all of the water of the creeks was vested at the time the predecessor to section 5946 became effective (Sept. 9, 1953). That argument fails because L.A. Water and Power was unable to make use of the water necessary to perfect an appropriation right until 21 years after the effective date of section 5946.
L.A. Water and Power alternatively seeks to nullify section 5946 by means of an implied facial challenge to its constitutional validity. Embedded in this challenge is the claim that the Legislature lacks the constitutional power to make reasonable determinations of the priority of water uses. We uphold the power of the Legislature to make such choices.
Water Board takes no issue with plaintiffs' substantive claims, but argues that they are time barred, notwithstanding that it concedes its present authority to act prospectively to condition the affected licenses in compliance with sections 5946 and 5937, as sought by plaintiffs. Given the validity of the concession and that plaintiffs seek only prospective relief, the argument is devoid of substance.
For all of these reasons we will reverse the judgment and direct the trial court to mandate the Water Board to apply the express terms of sections 5946 prospectively to the appropriations at issue.
The present controversy stems from a long history of actions taken by the City of Los Angeles to appropriate the water of creeks, tributary to Mono Lake, and of the Owens River for the domestic use of the city and for the generation of electricity. We include as an appendix a diagram of the affected waterways.
The history commences in 1916. In that year L.A. Water and Power applied for a permit from the State Water Commission to appropriate the water of the Owens River for the purpose of generating electricity. The application proposed to take water from Long Valley Reservoir at the head of the Owens River Gorge for use in three hydroelectric power plants to be located in the Gorge. The application describes the works (means) of diversion as follows: “for Plant ## 1, Long Valley Reservoir Dam, for Plants # 2 and # 3, low concrete with emergency spillway over crest.” The proposed completion date for construction was January 23, 1925. For reasons that do not appear in the record, action on the permit was not forthcoming until many years later.
In 1923 L.A. Water and Power applied for two related permits to appropriate the entire flow of Lee Vining Creek, Walker Creek, Parker Creek, and Rush Creek, all tributaries of Mono Lake, for domestic consumption and generation of electricity. The plan of diversion called for a dam on Lee Vining Creek with a tunnel and conduit to carry the water to a reservoir created by a dam on Rush Creek. Along the way, the waters of Walker Creek would be diverted by means of a shaft into the tunnel and of Parker Creek by direct diversion over the side of the conduit. The water was to be diverted from the reservoir on Rush Creek by a tunnel to the headwaters of the Owens River in Long Valley and then, after use in the Owens Gorge power plants, through the Owens River aqueduct system to Los Angeles. The construction of the proposed works was to be completed by July 1, 1933. Once again, initial action on the permits came later than the proposed completion date. In 1933 the predecessor to section 5937 was first enacted. (Stats.1933, ch. 73, § 525, p. 443.)
In 1934 L.A. Power and Light submitted new applications for permits to appropriate the waters of the aforementioned tributaries of Mono Lake. It explains this action as follows. “During design of the Mono Basin project, it became clear that more water storage would be required than had been requested in the 1923 applications. Therefore, in 1934, the City sought to amend its applications to increase storage capacity and also to add the waters of Mill Creek, north of Lee Vining Creek, as part of the project. However, the Water Board asked the City to file new applications instead and assured the City that its municipal status would protect its priority for water rights. The City then filed [the 1934 applications].” The new applications proposed to accomplish the diversion of water from each of the Mono Lake tributary creeks by use of a dam. The construction of diversion works was to be completed within four years after approval of the application and the accomplishment of the appropriation within seven years after such approval.
All of these applications were still pending in 1935 when L.A. Water and Power applied to the State Department of Public Works for approval of plans to construct the dam on Rush Creek to create Grant Lake Reservoir. The Fish and Game Commission conducted a hearing concerning the necessity of a fishway to allow fish to bypass the proposed dam. The commission found on June 7, 1935, that “a fishway is not practicable and will not be required.”
In 1936 L.A. Water and Power applied to the State Department of Public Works for approval of plans to construct the dam on the Owens River at Long Valley. The Fish and Game Commission conducted a hearing, on April 1, 1936, concerning the necessity for a fishway at this dam and a reconsideration of that issue as to the Grant Lake Dam. There was no immediate resolution of these issues. The “tentative” resolution was that the commission staff and L.A. Water and Power should “get together and work out the possibilities of a [fishcultural reservoir] on Hot Creek [a tributary of the Owens River above Long Valley] that was proposed as a structure to be provided in lieu of fishways at these dams․”
In 1940, Water Board hearings were conducted on the pending applications for permits to appropriate the water of the Mono Lake tributary creeks and the water of the Owens River for electricity generation. L.A. Water and Power withdrew the 1923 applications and the applications of 1916 and 1934 were approved, except for the denial of the proposed appropriation of waters of Mill Creek. Permits for these appropriations were issued on June 1, 1940. These permits, numbers 5555 and 5556, for appropriation of the waters of the Mono Lake tributary creeks, provide that the construction work “shall be completed on or before December 1st, 1945” and that “[c]omplete application of the water to the proposed use shall be made on or before December 1st, 1948.” The amount of water to be appropriated under these permits is not to exceed 93,540 acre-feet per year. L.A. Water and Power did not comply with the deadlines within which the proposed use was to be completed. However, the permits were periodically amended, as authorized by the Water Board, to extend these deadlines, once before September 9, 1953, and several times thereafter. (See fn. 11, post.)
The applications for approval of plans for construction of Grant Lake Dam and Long Valley Dam were also finally resolved in 1940. The Fish and Game Commission adopted an order on August 19, 1940, apparently embodying a negotiated agreement that in lieu of fishways for these dams L.A. Water and Power would provide rights to and partial funding for the establishment of a fish hatchery on Hot Creek. Thereafter, on November 25, 1940, L.A. Water and Power and state officials executed a contract to carry out the agreement establishing the hatchery. The agreement provided: “That [L.A. Water and Power] shall be and is hereby fully and unconditionally relieved and released of any and all obligations, under and by reason of the provisions of [the Fish and Game Code], excepting Sections 528, 531, and 535 to 548, inclusive, by reason of the construction, operation, and maintenance of said two dams, in addition to and over and above those set forth in said order and this agreement, and if [L.A. Water and Power] complies with the provisions of said order and this agreement the State will not at any time whatsoever or at all make any demands upon said [L.A. Water and Power] in addition thereto or beyond those so agreed upon herein.”
Grant Lake Dam and Reservoir construction had been started in 1935 and was completed in 1940. Long Valley Dam and Reservoir construction was apparently commenced in 1936 and completed in 1941.
Prior to the beginning of diversion of water from the Mono Lake tributary streams each had good trout populations, sustained almost entirely by natural propagation. As recently as 1985 trout have inhabited portions of Lee Vining Creek and Walker Creek below the diversion dams, apparently surviving on springs, seepage, spillage, and local runoff.
In October 1952 the subject of the drying up of the Owens River Gorge as a result of L.A. Water and Power's appropriations was raised during a hearing conducted by the State Senate Interim Committee on Fish and Game. During the hearing counsel for L.A. Water and Power was asked if it planned to “dry up” Rock Creek. Counsel said that L.A. Water and Power still had on file an application for diverting Rock Creek. Counsel was asked if the Owens Gorge applications had called for diversion of all water from the Gorge. Counsel answered that the application had called for a diversion of more than the mean runoff figure for Long Valley. An L.A. Water and Power representative gave economic costs of lost power as the reason why no water could be permitted to flow down the Gorge.
When the committee chairman asked where else in California a river had been dried up in such fashion as the Owens Gorge L.A. Water and Power countered with its report on improved fisheries as a result of Hot Creek hatchery and Long Valley Reservoir. During the hearing “Aubrey Lyon, in behalf of Bishop Izack Walton League chapter, made a strong appeal for some water to be left in the Gorge for benefit of wildlife. He requested the committee to aid attempts to secure provisions in state laws establishing a priority in the use of water for the benefit of fish, plant and wildlife. He pointed out that if the City could dry up the Gorge, all streams are in jeopardy of being dried up, and then ‘we'd have no wildlife in this area.’ ”
In 1953 the Senate Interim Committee On Fish and Game made a report to the Legislature that cited as a major problem in the Inyo–Mono area the development of the stream in the Owens River Gorge for power purposes. The report recounted the history of the project and asserted that the planned program would result in the diversion of all water from the Gorge, removing the area as a fishing ground. The report suggested that there was still an opportunity to negotiate “for the maintenance of a minimum stream flow through the Owens River Gorge to preserve this portion of the stream as a fishway.” However, it appears that the complete diversion of the stream from the Gorge was accomplished in August 1953.
In the water years between 1940–41 and 1962–1963 the amount of water diverted from the Mono Lake creeks out of the Mono Basin varied from a low of zero to a high of 96,900 acre-feet. The median amount was 64,400 acre-feet in the water year 1952–1953. The average yearly amount diverted for this period was approximately 51,000 acre-feet. The discrepancy between the amounts of water actually diverted and the 93,540 acre-feet per year limit in the permits for appropriation was attributable to the inability of L.A. Water and Power's facilities outside of the Mono Basin to handle any greater amounts of water. This situation led unspecified representatives of the State Water Resources Control Board and the Department of Water Resources to warn L.A. Water and Power, in an unspecified manner, “to take steps to develop its full entitlement to the waters of the Mono Basin or risk the potential that other appropriations might be granted rights by the Water Board.” Because of those warnings and because of the City's need for additional water and because of the presence of many of the conveyance facilities required for the development of additional water resources from Inyo and Mono Counties, in 1963 the City authorized construction of the Second [Los Angeles Aqueduct] Project.
“As originally conceived, planned, and executed, [this] project required the construction of no new facilities in the Mono Basin. Principal construction was to increase the capacity of the conveyance canal from Alabama Gates near Lone Pine into Haiwee Reservoir and to construct a new aqueduct, roughly paralleling the First [Los Angeles Aqueduct], to carry the water to the City of Los Angeles. The project was anticipated to develop an additional approximately 150,000 [acre-feet per year] for the City from three principal sources in approximately three equal parts or approximately 50,000 [acre-feet per year] apiece. These sources were increased groundwater pumping from the Owens Valley Groundwater Basin, operational savings within Inyo County, and increased average diversions from the Mono Basin․” The construction of the second Los Angeles Aqueduct was completed in 1970. In the water years 1970–1971 through 1973–1974 Mono Basin diversions in acre-feet respectively were: 94,300; 104,500; 101,700; and 123,600.
In 1974 the State Water Resources Control Board issued licenses 10191 and 10192 asserting that L.A. Water and Power had made proof, as of May 2, 1973, of a right to take 89,200 acre-feet per year of the aggregate flows of the Mono Lake tributary creeks, under permit 5555 and 70,200 acre-feet per year under permit 5556, as these permits had been extended by action of the Water Board after September 9, 1953.
L.A. Water and Power presents a melange of arguments which we view as presenting three cognizable kinds of claims.
The first kind addresses the construction of section 5946: (1) it does not apply to permits or licenses which involve the appropriation of water from dams constructed prior to its effective date, September 9, 1953; (2) it does not apply to licenses for the appropriation of water which are predicated upon permits issued before the effective date of the section. We answer that the plain language of the section rules out these claims.
The second kind of claim, though framed as theories of estoppel, vested rights or administrative construction, is predicated upon the claim that section 5946 is implicitly conditioned by the common law principle that statutes should not be read retroactively so as to divest L.A. Water and Power of rights acquired prior to its effective date. We answer that the application of section 5946 to the appropriations in this case does not divest L.A. Water and Power of rights for the reason that it was unable to use the water before the effective date of the section by which the claimed rights might have been acquired.
Failing these arguments, L.A. Water and Power impliedly attacks the constitutionality of section 5946 as exceeding the Legislature's power to allocate the uses of water. We answer that there is no such constitutional impediment.
Section 5946, Plainly Read, Affects The Appropriation of Water; It Expressly Subjects Licenses for the Appropriation of Water in Mono and Inyo Counties, To The Priority of Water Uses Mandated by Section 5937
Our task is to “ ‘read and examine the text of the act and draw inferences concerning meaning from its composition and structure’ ” as applied to the material facts of a case. (Nunez v. Superior Court (1983) 143 Cal.App.3d 476, 480, 191 Cal.Rptr. 893, quoting from 2A Sutherland, Statutory Construction (4th ed. 1973) § 47.01, p. 70.) Where the application of the text to such facts is clear, it must be so applied.2 That is the case here. As will be seen, the difficulty with L.A. Water and Power's statutory arguments is that they do not address or satisfactorily account for the language of section 5946.
By way of summary, the controlling language is to be found in the second sentence of section 5946. It forbids the issuance of a “permit or license” after September 9, 1953, to “appropriate water ” in designated portions of Mono and Inyo Counties “unless conditioned upon full compliance with Section 5937.” (Emphasis added.) This provision contains no language which limits its application to dams constructed before the specified date. It is exclusively a rule which limits the appropriation of water by giving priority to the uses specified in section 5937.
Section 5946 expressly incorporates and applies section 5937 so as to limit the appropriation of water. The latter section mandates, in pertinent part, that “[t]he owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.” Whatever the scope of section 5937, as it applied before September 9, 1953, section 5946 incorporates its requirements and makes them applicable to permits and licenses for the appropriation of water so as to give priority to the uses specified in section 5937. This reading is borne out by the language and syntax of the statute and the circumstances of its adoption.
The Trial Court Incorrectly Limited The Application of Section 5946 to Dams Constructed After September 9, 1953
Section 5946 presently reads in full: “The provisions of Section 5938 shall not be applicable to dams constructed in District 4 1/212 after September 9, 1953. [¶] No permit or license to appropriate water in District 4 1/212 shall be issued by the State Water Rights Board after September 9, 1953, unless conditioned upon full compliance with Section 5937. Plans and specifications for any such dam shall not be approved by the Department of Water Resources unless adequate provision is made for full compliance with Section 5937.” 3
“District 4 1/212” consists of portions of the Counties of Mono and Inyo not included in other districts, embracing all of the dams and tributaries subject to this action. A “ ‘[d]am’ includes all artificial obstructions.” (§ 5900, subd. (a).)
The trial court held that section 5946 applies only to the appropriation of water from dams constructed after September 9, 1953. That is not what it says. The operative language, contained in the second sentence, is not so limited. It is the first and third sentences of section 5946 which are directed to dams constructed after September 9, 1953. That is so because they concern fishways, a means by which to physically achieve the purposes specified in section 5937, which must be built during construction of the dam.
Section 5937 is addressed to the release of water from dams; dam owners must “at all times” release sufficient water “to keep in good condition any fish that may be planted or exist below the dam” regardless whether that is accomplished through a fishway or other means of release.4
The first sentence of section 5946 says that the provisions of section 5938 shall not apply to dams constructed after September 9, 1953. Section 5938 authorizes the development of a fish hatchery in lieu of the construction of a fishway over or around a dam, if that proved impracticable.5 The removal of that option removes an impediment to the direction contained in the third sentence of the section.
It says that “[p]lans and specifications for any such dam” must comply with section 5937. (Emphasis added.) “[S]uch dam” refers to the provisions of the first sentence for that is the only other reference in section 5946 having to do with the construction of dams. Since section 5937 requires the release of water from a dam for use in the maintenance of fish populations below, it is obvious that to accomplish that purpose the dam must be appropriately designed and constructed. Hence the requirement that “such” dams comply with section 5937 means that they shall be designed and constructed so as to have a fishway (and) or other physical means of conveying water past the dam for use in maintenance of the fish population below the dam.
The trial court went wrong, so it appears, because the second sentence, with which we are here concerned, also refers to section 5937. But as we next show, the second sentence is not concerned with the physical capacity of a dam to comply with section 5937 but with the substantive limitations it places upon the appropriation of water.
L.A. Water and Power Reads Section 5946 so as to Eviscerate its Explicit Application of Section 5937 to Limit the Appropriation of Water
L.A. Water and Power claims that section 5946 does not apply so as to condition a permit or license which would appropriate all of the water of a stream. The argument has two parts; (1) that section 5946 only reiterates section 5937 as it applied before the enactment of section 5946 and (2) that section 5937 does not apply to limit the appropriation of water.
Section 5937, so its argument goes, is only a rule for the operation of dams, presupposing and addressed to the usual circumstances where sufficient un appropriated water remains to keep some fish below the dam alive if carefully disgorged. (See Friant Dam, 18 Ops.Cal.Atty.Gen. 31, 36–39 (1951); c.f. generally Instream Flow Requirements, 63 Ops.Cal.Atty.Gen. 95 (1980); but see State Water Resources Control Board—Water Appropriation Regulation, 57 Ops.Cal.Atty.Gen. 577, 578–583 (1974); c.f. Comment, Use It or Lose It: California Fish and Game Code Section 5937 and Instream Fishery Resources (1980) 14 U.C.Davis L.Rev. 431.) In this manner, L.A. Water and Power would have us read section 5946 to apply only to un appropriated water, an obvious reversal of its meaning.
L.A. Water and Power reads section 5937 as if it were not incorporated into section 5946 and made applicable to permits or licenses for the appropriation of water. That reading is embedded in its argument that the meaning to be given section 5937 is that which preceded its incorporation into section 5946.
L.A. Water and Power reasons that until 1937 the predecessor of section 5937, section 525, only addressed the release of water through fishways. (Compare Stats. 1933, ch. 73, p. 443 with Stats. 1937, ch. 456, p. 1400.) In 1937 the present language extending section 525 to all releases of water “over, around or through the dam” was enacted. In 1937, and for many preceding years, the Water Code declared as state policy that the use of water for domestic purposes is the highest use of water and the use of water for irrigation purposes is the next highest use. (Stats. 1921, ch. 329, § 1, p. 443.) It apparently was assumed in some quarters at the time of adoption of those sections that the appropriation of water for “higher” domestic or irrigation uses must be approved regardless of the detriment to “lower” uses, e.g., in-stream use for fishery or recreation purposes. (Cf. National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 428, 189 Cal.Rptr. 346, 658 P.2d 709, [hereafter Audubon] disclosing this as the view held by the Water Board in 1940.) Given this assumption, so it is claimed, section 5937 is not meant to operate as a rule affecting the appropriation of water.
Notwithstanding that the Water Board does not presently take this position either here or in its regulations 6 , the manifest flaw in the argument is that, regardless of the original scope of application of section 5937, the purpose of its incorporation into section 5946 is expressly to “condition [ ]”, and therefore limit, the “appropriat[ion]” of water by the priority thereby given to the preservation of fish.
Section 5946 provides that “[n]o permit or license to appropriate water in District 4 1/212 shall be issued ․ after September 9, 1953, unless conditioned upon full compliance with Section 5937.” One does not show compliance with a rule by claiming that it is inapplicable. Compulsory compliance with a rule requiring the release of sufficient water to keep fish alive necessarily limits the water available for appropriation for other uses. Where that effects a reduction in the amount that otherwise might be appropriated, section 5946 operates as a legislative choice among competing uses of water. L.A. Water and Power's argument would render section 5946 senseless, a conclusion we are not permitted to reach.
The purpose that is manifest in the language of section 5946 also appears as an explicit chapter in the legislative history of its enactment. As introduced, the bill by which section 526.5, the predecessor to section 5946, became law carried an urgency clause explaining its necessity. It said: “Proposals for diversions of water in District 4 1/212 are now being considered which, if effected will destroy all of the fish life in large sections of the streams in that district and interfere with the economy in area which is dependent to a large extent on recreation. It is necessary that this act take effect immediately to prevent further destruction of the fish life in District 4 1/212.” (Sen. Bill No. 78 (1953 Reg. Sess. as introduced Jan. 6, 1953; emphasis added.) As the recitation of facts shows, this bill followed interim committee hearings at which were discussed both the impending diversion of water in the Owens River Gorge, for which permits had already issued and some dams completed, and planned diversions from another stream in the district.
The urgency clause was later deleted and language inserted to preclude the application of (current) section 5947, which prohibits excessive releases of water so “as to destroy fish life below such release,” to the operation of the generating facilities of a hydroelectric project then under construction.7 However, the provisions of (current) section 5946 remained fully applicable. Thus the legislative policy to “prevent further destruction of the fish life in District 4 1/212” by “sufficient releases” of water from dams remained as embodied in section 5946. The deletion of the urgency clause affected only the effective date of the section and not its purpose or legal effect.8
The urgency clause, as part of the history of section 5946 available to the Legislature, emphasizes what the language of the section tells us, that it was meant to apply as a rule preventing the destruction of fish by the appropriation of water for other uses by permits or licenses issued after September 9, 1953. That purpose could not be achieved if, as L.A. Water and Power would have it, the rule allowed the appropriation of all of the water otherwise available to those ends.9
In view of the language and syntax of section 5946, the history of its enactment, and the extrinsic evidence of contemporaneous views of its purpose, we reject as untenable the argument that section 5946 permits the appropriation of all of the water in a stream in District 4 1/212 after September 9, 1953.
The Application of Section 5946 To the L.A. Water And Power Licenses Does Not Retroactively Alter Rights Acquired Under Previously Issued Permits
L.A. Water and Power argues that section 5946 cannot be applied to licenses issued to it in 1974 which are predicated upon permits issued to it prior to September 9, 1953, because to do so would retroactively alter rights accrued by issuance of the permits. The argument is dressed in a variety of theoretical garb. It assumes that the statute is ambiguous with respect to its retrospective operation, an assumption we indulge only for the sake of argument.
We answer that section 5946 does not retroactively alter rights granted L.A. Water and Power under the permits because the appropriation of water necessary to perfect such rights was not and could not be accomplished prior to September 9, 1953.
L.A. Water and Power appeals to the rule of statutory construction that “legislative enactments are generally presumed to operate prospectively and not retroactively․” (See In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587, 128 Cal.Rptr. 427, 546 P.2d 1371; fn. omitted.) They reason that they gained rights pursuant to the permits underlying the licenses issued prior to the effective date of section 5946, September 9, 1953. Comprehension of the argument requires that we relate at some length the statutory scheme concerning licenses and permits to appropriate water.
The exclusive method of acquiring rights to appropriate or use water is by compliance with the statutory scheme in the Water Code. (Wat.Code, § 1225.) Appropriation of water must be for a beneficial use and failure to use all or any part of water to which a right of use has vested for five years extinguishes the appropriation. (Wat.Code, § 1241.) Any person may apply to the Water Board for a permit for any unappropriated water. (Wat.Code, § 1252.) The application must set forth, inter alia, the nature and amount of the proposed use, the location and description of proposed works to accomplish diversion, the time for completion of construction, and the time for the complete application of the water to the proposed use. (Wat.Code, § 1260.) The Water Board must act upon the application and may grant, or refuse to grant, a permit and may reject any application after a hearing. (Wat.Code, §§ 1250, 1350.)
“Upon the approval of an application the board shall issue a permit.” (Wat.Code, § 1380.) The issuance of a permit gives the right to take and use water only to the extent and for the purpose allowed in the permit. (Wat.Code, § 1381.) “A permit shall be effective for such time as the water actually appropriated under it is used for a useful and beneficial purpose in conformity with [Division 2 of the Water Code] but no longer.” (Wat.Code, § 1390.) The Water Board may reserve jurisdiction to amend, revise, supplement, or delete terms and conditions in a permit in specified circumstances by decision or order. (Wat.Code, § 1394.) “[Construction of the works of diversion] shall be completed and the water applied to beneficial use in accordance with this division, the rules and regulations of the board, and the terms of the permit and within the period specified in the permit.” (Wat.Code, § 1397.) These periods may be extended by the Water Board for good cause shown. (Wat.Code, § 1398.)
“There shall be cause for revocation of a permit if the work [of diversion] is not commenced, prosecuted with due diligence, and completed or the water applied to beneficial use as contemplated in the permit and in accordance with this division and the rules and regulations of the board.” (Wat.Code, § 1410; Stats.1986, ch. 670, § 4.) “Immediately upon completion of the construction of works and application of the water to beneficial use the permittee shall report the completion to the board.” (Wat.Code, § 1600.) “If the determination of the board as to completion is favorable to the permittee, the board shall issue a license which confirms the right to the appropriation of such an amount of water as has been determined to have been applied to beneficial use.” (Wat.Code, § 1610.)
We accept, for purposes of argument, L.A. Water and Power's synopsis of the general effect of actions concerning permits and licenses. “California law, as it exists today and as it existed in 1953, provides that appropriative water rights are acquired by placing water to beneficial use in accordance with the terms of a permit granted by the Water Board. It is the granting of the permit, not the issuance of the license, which ‘gives [the permittee] the right to take and use the amount of water specified in the permit.’ (Water Code Section 1455.) The right then vests when the water is actually diverted and placed to beneficial use.” L.A. Water and Power assumes that in view of these considerations it acquired a vested right to divert the entire flow of the Mono Lake tributary streams before 1953 when section 5946 came into effect. We do not concur in this critical assumption.
The rule of prospective construction of statutes applies only to resolve an ambiguity which arises when it is unclear whether a statute applies so as unfairly to change the legal significance of material facts occurring before its enactment. (See In re Marriage of Bouquet, supra, 16 Cal.3d at p. 587, 128 Cal.Rptr. 427, 546 P.2d 1371; “the presumption against the retroactive application of statutes” is subordinated “to the transcendent canon of statutory construction that the design of the Legislature be given effect”; see also 58 Cal.Jur.3d, Statutes, § 23, p. 341; citations omitted.) Where such an ambiguity exists, and the statute can be read to affect pre-enactment rights, values of fairness emanating from due process principles of fair notice aid in the determination whether the statute was meant to be so applied. (See generally Retrospectivity and Retroactivity of Civil Legislation Reconsidered, 2 Sutherland, Statutory Construction (4th ed. 1986) Legal Commentary, p. 171.)
That rule is of no aid to L.A. Water and Power because, assuming that section 5946 is ambiguous with respect to its effect upon “vested” water rights, its application to the licenses at issue makes no cognizable alteration of the legal significance of the underlying pre-enactment permits.
The only appropriative rights that could invoke a retroactivity claim leave available some 50,000 acre-feet of water per year to satisfy the requirements of section 5946. We are given no reason to suppose that this is an insufficient amount of water to satisfy those requirements. We will assume that that is the case for purposes of this appeal on two grounds. The first is that since L.A. Water and Power seeks to avoid the plain meaning of the statute, by a claim of latent ambiguity, it should bear the burden of demonstration. The second reason is that we need not reach the issue of retroactivity as to “vested” water rights if there is sufficient water available, in excess of that put to use prior to September 9, 1953, to satisfy the demands of section 5946.
Before pursuing the question of the availability of the 50,000 acre-feet of water per year over and above that put to use prior to the effective date of section 5946, we first address the suggestion that section 5946 does not apply to any case in which a post-enactment license is predicated upon a permit issued prior to the effective date of the section, September 9, 1953. That argument succeeds only if the disjunctive “permit or license” in the second sentence of the section can be read as exclusively meaning the conjunctive “permit and license.” In this case it cannot be so read.
Section 5946 applies to any “permit or license” issued after September 9, 1953. What is necessarily implied from the use of the disjunctive is that, even reading “or” as “and/or” 10 , it encompasses the disjunctive circumstance in which a permit precedes and the license succeeds the effective date of the section. Thus section 5946 minimally must be read to apply section 5937 to some post-enactment licenses issued to confirm an appropriation of water authorized by pre-enactment permits. If the statute were wholly meant to preclude this reading, the natural phrasing would be “permit and license” or, more precisely, “permit and ensuing license.” It does not, and the legislative circumstances in which section 5946 was enacted militate against such a reading. As discussed above, section 5946 was meant “to prevent further destruction of the fish life in District 4 1/212” insofar as that could be accomplished by the attachment of section 5937 conditions to post-enactment licenses, whether or not predicated upon pre-enactment permits.
However, to give unbridled rein to the retroactivity argument we indulge another assumption, that in some cases section 5946 should not be applied to post-enactment licenses so as to preclude the alteration of rights acquired pursuant to pre-enactment permits. To that end we examine the policies which inform the presumption against retroactivity.
The test is whether section 5946 operates retroactively in any cognizable legal sense upon a prior event. “Law operates in the flow of time, and a single controversy may involve a series of events, and occasions for official decision, occurring at many different points in the flow.” (Hart & Sacks, The Legal Process (Tent. ed. 1958) p. 640.) The problem is to discern the materiality of events with respect to the policy advanced by the presumption of prospectivity. The source of the presumption is the “general consensus that notice or warning of the rule should be given in advance of the actions whose effects are to be judged.” (2 Sutherland, Statutory Construction, supra, § 41.02, p. 340.) Application of a statute is retroactive only when it gives a different and potentially unfair legal effect to actions taken in reliance on the preenactment law. (Mahon v. Safeco Title Ins. Co. (1988) 199 Cal.App.3d 616, 620–623, 245 Cal.Rptr. 103.)
That would occur here only if section 5937, as applied via section 5946, substantially alters the legal effect of actions taken before enactment of section 5946, e.g., reduces or obliterates an existing right to the appropriation of water, acquired incident to the pre-enactment construction of works of diversion and the (appropriative) use of water made available thereby. It did not.
Although the diversion works authorized by permits 5555 and 5556 were completed prior to September 9, 1953, they were insufficient to accomplish the full appropriation of water authorized by the permits and such water was not in fact appropriated until 1973, 20 years after the effective date of section 5946.
That delay was occasioned because the second Los Angeles Aqueduct, the facility necessary to enable the transport the water from the diversion dams to the uses specified in the permits, was not completed until that year. As a consequence, the actual use of 50,000 acre-feet of water by which rights to its appropriation are acquired did not, because it could not, occur until completion of the aqueduct. That project was not within the projects listed in permits 5555 and 5556 issued in 1940. The construction of the second aqueduct was prompted inter alia by the perception that the pre-enactment plans and projects had not resulted in a successful appropriation by use of the amount of water in the Mono Lake tributary creeks. Accordingly, application of section 5946 to the L.A. Water and Power licenses, insofar as they sought to affirm an appropriation essentially based on post-enactment conduct, is simply not a retroactive application of the statute.
The situation is not materially different than if L.A. Water and Power had sought licenses in 1953 based upon its completed works of diversion and actual diversion of water that could be accomplished thereby and then in 1963 had applied for permits to appropriate the additional 50,000 acre-feet per year in issue in this case. Section 5946 would apply to the later permit and license in that circumstance and no plausible claim of retroactivity could be maintained.
That is essentially the circumstance here, except that, apparently through the torpor of the Water Board and L.A. Water and Power, the original permit process was allowed to tarry interminably. The initial permits, 5555 and 5556, were extended by act of the Water Board on several occasions, all but one of which occurred after September 9, 1953.11 The administrative act of extension ordinarily has the effect of extending rights to appropriate water not yet used (see generally Eaton v. State Water Rights Board (1959) 171 Cal.App.2d 409, 415–416, 340 P.2d 722 [affirming rights so acquired as against a competing private claim to appropriate until revoked by the Water Board] ). But where that act occurs, as here, after the effective date of legislation affecting the conditions of such appropriation, and the “extension” entails a new or different scheme of appropriation, the legislation is wholly prospective in its effect. To conclude otherwise would be to indulge the anomaly that the presumption against retroactivity operates to sanction rights acquired only by action taken after the date of enactment.
However framed, the argument lacks substance. L.A. Water and Power gained no rights to appropriate the water in issue prior to September 9, 1953 because it failed to use the water by which such rights might have been obtained. As related, the perfection of a water right requires the actual use and diversion of the water for which a permit to appropriate has been issued. Here, despite the completion of the works of diversion as proposed in the permit to appropriate the entire flow of these streams, L.A. Water and Power, prior to September 9, 1953, was able to divert and place to beneficial use only approximately one-half of the flow of the streams that could be obtained by the works of diversion planned and accomplished under the permits pending in 1953. The reason for this is that L.A. Water and Power had no physical means by which to export and use more than this amount of water and hence could not appropriate the full amount of water contemplated by the permits. That awaited the completion in 1973 of the second aqueduct to Los Angeles.
In fact, it was not until 10 years after the enactment of section 5946 (and 15 years after the date of completion of the projects originally authorized by the permits) that L.A. Water and Power was bestirred to begin the action necessary to acquire the water right it proffers as “vested” at the time of enactment of section 5946. Permitting such a relation back would not serve the goals of fairness that underpin the presumption that statutes are intended to operate prospectively.
L.A. Water and Power next comes at the problem by framing the issue as a question of equitable estoppel. It claims that the state is estopped to apply section 5946 to the licenses principally because of the Hot Creek hatchery agreement.
We note at the outset that strictly speaking the Hot Creek hatchery agreement could not amount to an estoppel with respect to the future exercise by the Legislature of the law-making power. The only manner in which that power could be fettered is by a constitutional constraint, e.g. by a valid contract authorized by the Legislature. Assuming for the purpose of argument that the estoppel doctrine were applicable, the Hot Creek hatchery agreement would not suffice to invoke it.
We start with yet another assumption, that the hatchery agreement was valid when consummated. The fruit of the Hot Creek agreement was approval of the plans for the dams and applications for appropriations of water under consideration at that time. However, as related, the appropriations actually accomplished pursuant to those applications allowed sufficient unappropriated waters to remain to keep fish below the dams on the Mono Lake tributary creeks in good condition.
The benefit of the Hot Creek hatchery bargain was a permit to complete a present scheme of appropriation of water, not a permit to kill fish and destroy fish habitat whether necessary or not. As it turned out, it was not necessary to destroy the fish habitat in the Mono Lake creeks as contemplated because the scale of appropriation did not pan out. There is no term of the contract which says L.A. Water and Power may carry forward a “right” to destroy fish habitat in connection with future schemes for appropriation of water. Much less does the contract say that such a right would override the law concerning appropriation of water at such point in the future.
Moreover, as to the application of section 5946, an estoppel argument cannot succeed since that would effectively nullify the statute and estoppel doctrine does not reach so far. “[N]o court has expressly invoked principles of estoppel to contravene directly any statutory or constitutional limitations.” (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 28, 157 Cal.Rptr. 706, 598 P.2d 866; also c.f. e.g. State of California v. Superior Court (Fogerty) (1981) 29 Cal.3d 240, 244–247, 72 Cal.Rptr. 713, 625 P.2d 256.) The reason for this constraint is that statutory law is available to all and allowing estoppel to contravene directly a statutory limitation would confer upon agency officials a pernicious power to repeal statutes. (See County of San Diego v. California Water etc. Co. (1947) 30 Cal.2d 817, 826–827, 186 P.2d 124; also c.f. City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 498–499, 91 Cal.Rptr. 23, 476 P.2d 423.)
We also find unpersuasive the argument that we should defer to a claimed long-standing administrative interpretation of the statute. L.A. Water and Power suggests that the Water Board has consistently interpreted section 5946 as inapplicable to licensing proceedings stemming from permits issued before the effective date of the statute. It bases this assertion on a memorandum legal opinion of counsel to the Water Board dating from December 1953. In the memorandum counsel concluded, inter alia, that, where a dam had been constructed without facilities for compliance with section 5946 under a permit issued before the enactment of that statute, the subsequent issuance of a license need not be conditioned upon such compliance. L.A. Water and Power suggests that this opinion has been endorsed by the Water Board because, as to 61 licenses in District 4 1/212 issued on permits granted before September 1953, no condition appears on the face of the license which says that it must comply with the rule requiring the release of water to preserve fish life.12 The perceived consistency is marred by the fact that one such license does contain such a condition. Moreover, as related the Water Board's posture in these proceedings is to disassociate itself from any construction of the statute.
Aside from the evidence of inconsistency, this purported showing of a consistent administrative interpretation is entirely insufficient. There is no way to tell from the facts adduced whether the Water Board has ever endorsed the proffered interpretation. The nature of the other appropriations as to their effect on fish habitat is entirely opaque.
Moreover, the underlying opinion of counsel does not present the construction of the statute which is purported. The opinion does not consider the application of section 5946 to cases where the dam as constructed is capable of being operated in a manner allowing compliance with section 5946. Counsel's opinion is premised on the unexamined assumption that any application of section 5946 to a license stemming from a pre-enactment permit would involve circumstances in which we might characterize the application as retroactive. The opinion simply does not address the prospective application of the statute in circumstances such as those presented here.
Lastly, proof of such an administrative construction is only the first hurdle. The ultimate resolution of the question of meaning of the statute is a judicial question. “ ‘[A]n erroneous administrative construction does not become decisive no matter low long continued.’ ” (People v. Union Oil Co. (1957) 48 Cal.2d 476, 480, 310 P.2d 409.) “An administrative officer may not make a rule or regulation that alters or enlarges the terms of a legislative enactment.” (Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal.2d 753, 757, 151 P.2d 233.)
L.A. Water and Power's Implied Challenge To The Authority of the Legislature To Determine The Priority of Water Uses, As in Section 5946, Founders on the Provision Of the California Constitution Upon Which It Relies, Article X, Section 2
The remaining argument advanced by L.A. Water and Power is that if section 5946 were construed as requiring a minimum in-stream flow preservation of fish it would be unconstitutional by virtue of California Constitution, article X, section 2. It provides that water rights, “shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.” L.A. Water and Power argues that the Legislature may not impose a categorical priority for one use of water because reasonableness of use requires comparison of contending alternative uses which is an adjudicative question that cannot be constrained by a statutory rule. Indeed, L.A. Water and Power submits that use of minimal stream flows for preservation of fish in these circumstances is an unreasonable use in view of its need to use the water for domestic consumption. These arguments are unpersuasive. We find no preclusion in article X, section 2, of legislative power to make rules concerning what uses of water are reasonable, at least so long as those rules are not themselves unreasonable. We cannot say that section 5946 is unreasonable in requiring a minimal in-stream flow for preservation of fish in the areas it affects.
We note at the outset that it is an open question whether the test of unreasonable use under article X, section 2 refers only to inordinate and wasteful use of water or applies comparatively to preclude any use less than the optimum allocation of water. (See Audubon, supra, 33 Cal.3d at p. 447, fn. 28, 189 Cal.Rptr. 346, 658 P.2d 709.) Indeed, L.A. Water and Power was of the view in that case that a comparative application was inappropriate. (Ibid.) It apparently wished to rely on the Legislature's general rule in Water Code section 106 that use of water for domestic purposes is the highest use of water as establishing per se that such use is always a reasonable use. Yet here, it takes the opposite view concerning the comparative application of article X, section 2 and advances a legal theory that would sweep aside all legislative rules concerning reasonableness of water use. Setting aside these ironies, and assuming for the sake of argument that article X, section 2 applies comparatively, we find no arguable merit in the claim that section 5946 would conflict with that constitutional provision if construed to call for minimum in-stream flow for preservation of fish.
Article X, section 2 (enacted in 1928 as art. XIV, § 3) was a response to the decision of the California Supreme Court in Herminghaus v. South. California Edison Co. (1926) 200 Cal. 81, 252 P. 607. (Audubon, supra, 33 Cal.3d at p. 442, 189 Cal.Rptr. 346, 658 P.2d 709.) Herminghaus held that the Legislature had no power to divest riparian owners of the right to “the customary flow of water which is or may be beneficial to his land.” (Herminghaus, 200 Cal. at pp. 100–101, 252 P. 607.) The doctrine of reasonable use which limited uses among riparians was found inapplicable as between a riparian and an appropriator. (Ibid.) This riparian right was seen as a property right introduced by the adoption of the common law, which was vested and which was not subject to devesting via the exercise of the police power. (Id., at pp. 95, 117, 252 P. 607.) Hence, the Legislature could not “arrogate to itself the right to determine what are the ‘useful and beneficial purposes' ․ to which ․ already vested rights shall be limited in their use and enjoyment․” (Id., at p. 117, 252 P. 607.) Since the riparian right was a vested property right it could not be taken without compensation; rather it could only be taken by eminent domain. (Id., at pp. 111–112, 252 P. 607.) Herminghaus was overturned by article X, section 2. (Audubon, supra, 33 Cal.3d at p. 442, 189 Cal.Rptr. 346, 658 P.2d 709.) The claim that such alteration was a taking was rejected in (Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 700–705, 22 P. 5.)
L.A. Water and Power relies on Gin S. Chow, supra, for the assertion that the question of reasonableness cannot be constrained by statute. The last argument considered in Gin S. Chow was that the newly enacted constitutional amendment was fatally vague because the terms “reasonable” and “unreasonable” provided no adequate standards. The Supreme Court answered as follows: “[W]hat is a useful and beneficial purpose and what is an unreasonable use is a judicial question depending upon the facts in each case. Likewise, what is a reasonable or unreasonable use of water is a judicial question to be determined in the first instance by the trial court. There would seem to be no more difficulty in ascertaining what is a reasonable use of water than there is in determining probable cause, reasonable doubt, reasonable diligence, preponderance of evidence, a rate that is just and reasonable, public convenience and necessity, and numerous other problems which in their nature are not subject to precise definition but which tribunals exercising judicial functions must determine.” (Id., at p. 706, 22 P. 5.)
L.A. Water and Power takes this as a rule that the question of reasonableness invariably must be resolved ad hoc, adjudicatively, and there is no place for the legislative articulation of rules concerning reasonableness. That certainly is not the holding of Gin S. Chow, which did not consider such a question. The rule proffered is unsupported by apposite authority and insupportable in reason and legal doctrine.
All that the reasoning in Gin S. Chow connotes is that in the absence of an a priori rule a court may ascertain whether a use of water is unreasonable from the facts and circumstances of particular cases. Hence, it is often asserted that “[w]hat constitutes a reasonable use or method of diversion is ordinarily a question of fact.” (United States v. State Water Resources Control Board (1986) 182 Cal.App.3d 82, 130, fn. 24, 227 Cal.Rptr. 161.) Actually, since what occurs is development of a standard of reasonableness on the facts of the case it should be described as a making of law for the particular case. (See Traynor, The Riddle of Harmless Error (1970) p. 71.) The typical example of such a process is case-by-case determination of the standard of reasonable care in the law of tort. However, the fact that, ordinarily, the standard of reasonableness is fixed ad hoc does not impel the view that the Legislature has no power to fashion rules concerning reasonableness, e.g. by enacting statutory safety obligations which become the basis of negligence per se.
L.A. Water and Power cites no case holding a statute unconstitutional as inconsistent with article X, section 2 for promulgating a rule concerning the reasonableness of water use. The contrary view is implicit in Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 60 Cal.Rptr. 377, 429 P.2d 889. After adverting to Gin S. Chow for the proposition that reasonableness of water use is a “question of fact” (Joslin, p. 139, 60 Cal.Rptr. 377, 429 P.2d 889) the opinion says: “․ such an inquiry cannot be resolved in vacuo isolated from statewide considerations of transcendent importance.” (Id., at p. 140, 60 Cal.Rptr. 377, 429 P.2d 889, orig. emphasis.) The inquiry must be resolved in view of “policy pronouncements relative to the use and conservation of natural waters․” (Ibid.) In view of absence of any public policy favoring amassing of sand and gravel (the contending use) that use “is as a matter of law unreasonable within the meaning of [article X, section 2].” (Id., at p. 141, 60 Cal.Rptr. 377, 429 P.2d 889.)
Ordinarily, absent a plain constitutional mandate, a conflict in public policy between the judiciary and the Legislature must be resolved in favor of the latter. (See e.g., Gin S. Chow, supra, 217 Cal. at p. 698, 22 P. 5.) Where various alternative policy views reasonably might be held whether the use of water is reasonable within the meaning of article X, section 2, the view enacted by the Legislature is entitled to deference by the judiciary. An invitation to substitute the policy view of a court in this circumstance for a reasonable policy enacted in a statute is an invitation to return to the benighted days of substantive due process.
It is yet another irony that the claim to such authority is founded on article X, section 2, an amendment enacted to vest the “right” in the Legislature, over the judicial objection in Herminghaus, to determine the useful and beneficial purposes of water use. Article X, section 2, explicitly assigns to the Legislature the right and obligation to enact laws in furtherance of its policy. “This authorization discloses that the framers of article X, section 2, recognized that the promotion of its salutary policies would require granting the Legislature broad flexibility in determining the appropriate means for protecting scarce water resources.” (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 351–352, 158 Cal.Rptr. 350, 599 P.2d 656; fn. omitted.) That is to say, there is “broad legislative authority for the conservation and regulation of scarce water resources․” (Id., fn. 6.) That authority is sufficient to authorize the Legislature to enact statutes which determine the reasonable uses of water. (See generally, Audubon, supra, 33 Cal.3d at pp. 443 and 447–448, fn. 30, 189 Cal.Rptr. 346, 658 P.2d 709.)
Of course, the Legislature's broad authority is not unlimited. If a statute sanctioned a manifestly unreasonable use of water, it would transgress the constitution. That is not the case here. The Legislature's policy choice of the values served by a rule forbidding the complete drying up of fishing streams in Inyo and Mono Counties in favor of the values served by permitting such conduct as a convenient, albeit not the only feasible, means of providing more water for L.A. Water and Power, is manifestly not unreasonable. Accordingly, we have no warrant to override the Legislature's rule in section 5946 concerning that balance.
In sum, none of the considerations urged by L.A. Water and Power impels the conclusion that we should construe section 5946 as inapplicable to all licenses deriving from permits issued before its effective date. The statute directs that “no permit or license” shall be issued in District 4 1/212 after September 9, 1953, unless the appropriation is compatible with release of sufficient water to keep fish below the dams in good condition. For the foregoing reasons, we are constrained so to apply it. The licenses in 1974 met the criteria of section 5946 for application of the rule against diversion of water destructive of fish habitat. Accordingly, those licenses should not have been issued to confirm a right to appropriate water in an amount forbidden by that rule. The remaining question is whether the licenses, invalid when approved in 1974, may be attacked by means of redress in these proceedings.
The Water Board contends that the judgment of dismissal should be upheld on grounds that plaintiffs' action is untimely. L.A. Water and Power adopts the contention and arguments of the Water Board by reference. The premise underlying the claim is that plaintiffs seek judicial review of the Water Board's 1974 action granting issuance of the licenses. The Water Board demurred on this ground and the demurrer was overruled. The trial court reasoned that the demurrer was not well taken because the petitions alleged facts showing a continuing duty of the Water Board to apply section 5946 to the licenses, if that statute were applicable at the time of the issuance of the licenses. We agree.
The Water Board takes a curious position. It concedes, indeed it insists, that these licenses are subject to its “ongoing” power of revocation. It reasons: “Section 5937 as a water allocation statute necessarily implements California Constitution Article X, section 2, requiring the reasonable use of water. Similarly section 5937 is a legislative expression of the public trust protecting fish as trust resources when found below dams. (Audubon, supra, 33 Cal.3d at p. 446, note 27, 189 Cal.Rptr. 346, 658 P.2d 709; People v. Truckee Lumber Co. (1897) 116 Cal. 397, 400–401, 48 P. 374). Therefore, the enforcement of section 5937 is within the jurisdiction of the [Water Board] which has an ongoing duty to ensure the reasonable use of water and the protection of public trust values in water allocation decisions.” This reasoning a fortiori applies to the less sweeping conclusion that section 5946 is a water allocation statute, i.e., the conclusion we have earlier reached. It follows that the Water Board must view its 1974 action of issuing the licenses as open to a present correction to bring them into conformity with section 5946. However, the Water Board submits that plaintiffs cannot obtain such relief by means of this action because that would “call for the Board to look backward and review its past decisions which have become final by the passage of time.” This proffered distinction between forward looking and backward looking remedies is contrived and unpersuasive.13
Water Board places principal reliance upon Water Code section 1360. It provides in pertinent part: “Any person interested in any application may, within 30 days after final action by the board, file a petition for a writ of mandate․” The Water Board suggests that “final action by the board” means final action by the board in any proceeding pertaining to any state of the process by which the right to water is secured or by which such a right is revoked. It implies that such a reading is impelled by an implicit policy of the statutory scheme to give finality to its actions in determining the allocation of water rights. Water Board misreads the section and, moreover, argues the contrary policy. Section 1360 has nothing to do with licenses, let alone the revocation of licenses, the relief sought by plaintiffs. It applies only to the initial, i.e. application, stage of the process by which the permit to appropriate water is secured. That is made clear by the text and position of section 1360 in the statutory scheme.
The Water Code provisions pertaining to the sequence of procedures and actions for the appropriation of water are grouped in 11 chapters of division 2, part 2. The organization of the provisions parallels the order in which actions must be taken to obtain a right to appropriate water, i.e., application, permit, and license. Section 1360 is part of the provisions concerning the first step, application for a permit, and immediately follows the sections which govern the hearings which the Water Board must conduct upon such an application. Accordingly, the antecedent reference for the term “application” is “applications for permits to appropriate water” in section 1250. Similarly, the antecedent reference for the term “final action by the board” is section 1350 which does not pertain to board action on licenses: “The board may grant, or refuse to grant a permit and may reject any application, after hearing.”
The pertinent provisions relating to licenses are to be found in sections 1615 to 1618. Section 1615 provides: “The holder of any permit to whom the board has issued a license for an amount of water or a season of use less than specified in the permit, may, within 30 days after such issuance, file a petition for a writ of mandate in the superior court, to inquire into the validity of the order of the board.” In a similar manner, section 1677, which follows the statutes addressed to the revocation of licenses by the Water Board, provides; “Any petition for a writ of mandate to inquire into the validity of an order of the board revoking a license shall be commenced within 30 days after the service of notice of revocation on the license.” Hence, section 1360 is not a statute of limitations applicable to these licenses and none of the potential limitation-of-action provisions in the Water Code pertain to petitioners.
Failing this argument, Water Board suggests that, if section 1360 is not an applicable statute of limitations, more general provisions of the Code of Civil Procedure apply, specifically section 338, subdivision 1 (three years for a liability created by statute) or 343 (four years for relief provided by other statutes) are applicable. This claim could tender a material defense if plaintiffs sought a remedy for past usage of water taken under the licenses. But that is not the case.
The relief sought by plaintiffs is wholly forward looking. They do not seek to recover water misallocated in the past or to adjust future releases in recognition of that fact. Rather, they seek to have section 5946 applied, wholly prospectively, to L.A. Water and Power's licenses by removing the Water Board's imprimatur of their validity. The Water Board concedes it has the authority to do so (see also fn. 6, ante ) and no private rights sanctioned by a statute of limitations preclude such action. Accordingly, Water Board, having conceded the merits of plaintiffs' claim, recognizes a plain legal duty on its part to revoke the licenses and to condition their reissuance upon compliance with section 5937.
The jurisdiction of the board to revoke a license is not limited to revocation predicated upon a determination that such action generally subserves the public trust doctrine. In Audubon the Supreme Court implied from the legislative grant of broad substantive authority to the Water Board a commensurate procedural power, under Water Code section 2501, to reconsider water rights previously granted in the light of a “legislative mandate”, e.g., to reconsider the kind of rights here in issue. (33 Cal.3d at pp. 448–449, 189 Cal.Rptr. 346, 658 P.2d 709.) In so doing the Supreme Court acknowledged difficulties in justifying a textual basis in section 2501 for this action. Nonetheless, in order to allow the Water Board to carry out “the legislative mandate” the Supreme Court read the statute broadly to avoid a procedural gap. (Ibid.) The same reasoning applies to this case.
The legislative mandate of section 5946 was either overlooked or misconstrued in the actions of the Water Board granting the licenses here in issue. We agree with the Water Board that the mandate of section 5946 is a specific legislative rule concerning the public trust. Since the procedural avenue of Water Code section 2501 authorizes the reconsideration of these appropriations for compliance with the general public trust doctrine, it must also be available for reconsideration of a claim for redress under a specific public trust rule—section 5946.
In the course of reconsideration, the Water Board is subject to the direction of the Legislature. Since the Water Board has the power to re-examine the water rights declared in these licenses, for conformity with the public trust doctrine, there is no legal reason why that re-examination should not be subject to the legislative rule enunciated in section 5946. The Legislature, not the Water Board, is the superior voice in the articulation of public policy concerning the reasonableness of water allocation. The unfortunate fact that the Water Board did not hear the Legislature's voice in 1974 does not warrant, by the passage of time, its turning a deaf ear now.
It remains for us to consider the impact of these conclusions on the relief sought by the plaintiffs. As noted the plaintiffs seek a writ commanding the Water Board to employ section 5946 to licenses 10191 and 10192. We agree that application of the rule will require reduced diversions of water from the Mono Lake tributary creeks, albeit in an amount that cannot be precisely calculated on the record before us. We agree with the Water Board that questions of timing and the degree of alteration of the allocations of water to comply with section 5937 are, in the first instance, matters that are within its purview. Hence, plaintiffs are not entitled to a writ constraining the Water Board in the exercise of that authority. If it is determined that the 50,000 acre-feet per year of water identified in this opinion as available over and above the amounts used by L.A. Water and Power prior to September 9, 1953, is inadequate to meet the requirements of section 5946, the parties may tender the question of a right to an increased entitlement under section 5946 pursuant to the principles of retrospectivity discussed in this opinion.
California Trout suggests that the application of section 5946 will also require that water be released into the Owens River Gorge. But the two licenses at issue do not pertain to appropriation of water that otherwise would have been available to sustain fish in the Owens River Gorge. The dams referred to in section 5937, as imported into section 5946, are dams placed at the point of diversion of the water which is appropriated. Section 5946 does not promulgate a rule that is germane to every existing dam along the course of waterworks that appropriated water traverses after it has been diverted. Hence, there is no merit in the contention that rescinding these two licenses has any bearing upon fish habitat below Long Valley Dam.
The judgments of dismissal of the petitions for writs of mandate are reversed. The trial court shall issue appropriate writs, commanding the Water Board to exercise its discretion to conduct proceedings for revocation of licenses 10191 and 10192, subject to its authority to reissue them consistent with section 5946, as construed in this opinion.
1. All references to sections are to the Fish and Game Code unless otherwise noted.
2. It bears repeating that the meaning of a statute derives from its text. “As was said long ago, and often repeated, ‘ “[i]t is elementary that there can be no intent in a statute nor expressed in its words; that the intention of the legislature must be determined from the language of the statute․” (Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365, 5 P.2d 882.)’ ” (In–Home Supportive Services v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 739, 199 Cal.Rptr. 697.) If the language of a statute is plain with respect to a claimed application, which is to say unambiguous in that context, the courts have a duty to so apply it. This does not necessarily rule out extrinsic indications of meaning, but it does place the statutory text at the center of the inquiry. In simple terms, the statutory language must always be accounted for. These rules derive from fundamental constitutional principles of separation of powers. “For constitutional reasons, the ascertainment of legislative meaning necessarily focuses on the enacted statute and not on an unenacted expression of legislative will, however reliable. An unenacted utterance has force, if at all, only as part of the proper context of the statute.” (Dickerson, The Interpretation and Application of Statutes (1975) p. 144.) Thus, criteria of meaning predicated upon sources external to the statute may be used only to resolve a semantic or contextual ambiguity which appears from its claimed applications to the material facts of a case. (Cf. National Auto & Cas. Ins. Co. v. Contreras (1987) 193 Cal.App.3d 831, 835–837, 238 Cal.Rptr. 627.)
3. Section 5946 is a restatement and continuation of former Fish and Game Code section 526.5, enacted in Statutes of 1953, chapter 1663, section 1. (See § 3.) The sections referred to in section 5946 are restatements and continuations of the sections referred to in section 526.5. (§ 3; former §§ 526.5, 526, 525, Stats.1933, ch. 73; Stats.1937, ch. 456.)Section 526.5, as contained in Statutes of 1953, chapter 1663, provided: “Section 1. Section 526.5 is added to the Fish and Game Code, to read: [¶] 526.5. The provisions of Section 526 shall not be applicable to dams constructed in District 4 1/212 after the effective date of this section. [¶] No permit or license to appropriate water in District 4 1/212 shall be issued by the Department of Public Works after the effective date of this section unless conditioned upon full compliance with Section 525. Plans and specifications for any such dam shall not be approved by the Department of Public Works unless adequate provision is made for the full compliance with Section 525. [¶] Sec. 2. Section 526.6 is added to the Fish and Game Code, to read: [¶] 526.6. It is unlawful for the owner of a dam in District 4 1/212 to release water from the dam, or any facilities for the generation of hydroelectric energy operated in connection therewith, in varying flows in such a manner as to destroy fish life below such release. [¶] Sec. 3. The provisions of Section 526.6 shall not be applicable to the operation of any hydroelectric generating facilities in connection with which there is under construction, on the effective date of this bill, a regulatory dam to control the flows below the point where water is released from such facilities, until such regulatory dam is completed, or June 30, 1955, whichever event occurs first. During any such period of construction prior to June 30, 1955, operation of any hydroelectric generating facilities shall be accomplished in such a manner as to cause the least possible variance in the flow of water released, consistent with the proper operation of the facilities. [¶] Sec. 4. If any provision of this act, or the application thereof to any person or circumstance, is held invalid, the remainder of the provisions, or the application of such provision to other persons or circumstances, shall not be affected thereby.”
4. In pertinent part section 5937 is a restatement and continuation of the provisions contained in former section 525, as it existed at the time of the issuance of permits 5555 and 5556. (See Stats.1933, ch. 73, § 525, p. 443, amended by Stats.1937, ch. 456, § 1, p. 1400.) Section 5937 provides: “The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam. During the minimum flow of water in any river or stream, permission may be granted by the department to the owner of any dam to allow sufficient water to pass through a culvert, waste gate, or over or around the dam, to keep in good condition any fish that may be planted or exist below the dam, when, in the judgment of the department, it is impracticable or detrimental to the owner to pass the water through the fishway.” The term “ ‘Fish’ [as used in § 5937] means wild fish, mollusks, crustaceans, invertebrates, or amphibians, including any part, spawn, or ova thereof.” (§ 45.)
5. Section 5938 provides: “Whenever in the opinion of the commission it is impracticable, because of the height of any dam, or other conditions, to construct a fishway over or around the dam, the commission may, in lieu of the fishway, order the owner of the dam completely to equip, within a specified time, on a site to be selected by the department, a hatchery, together with dwellings for help, traps for the taking of fish, and all other equipment necessary to operate a hatchery station, according to plans and specifications furnished by the department. After such hatchery has been constructed, the department shall operate it without further expense to the owner of the dam except as provided in Sections 5940 and 5941.”
6. Since 1975 the Board has by regulation recognized that section 5937 itself conditions the issuance of permits for the appropriation of water. Title 23, section 782 of the California Administrative Code provides, in pertinent part, that “[i]n compliance with Section 5937 ․ all permits for diversion of water from a stream by means of a dam which do not contain a more specific provision for the protection of fish shall require the permittee to allow sufficient water at all times to pass ․ over, around, or through the dam to keep in good condition any fish that may be planted or exist below the dam․” (Register 87, No. 10—3–7–87; formerly § 762.5 adopted by Register 75, No. 17—4–26–75.)
7. The qualifying section provided: “The provisions of Section 526.6 [now § 5947] shall not be applicable to the operation of any hydroelectric generating facilities in connection with which there is under construction, on the effective date of this bill, a regulatory dam to control the flows below the point where water is released from such facilities, until such regulatory dam is completed, or June 30, 1955, whichever event occurs first.” This provision was deleted in 1957. (Stats.1953, ch. 1663, § 3; Stats.1957, ch. 456, § 5947.)
8. In 1953 the effective date of the legislation without an urgency clause was September 9, 1953. In 1957 this date was inserted in place of the language “effective date.” (Stats.1957, ch. 456, § 5946, p. 1400.)
9. This conclusion also surfaces in secondary reports of the debate in the Assembly concerning the bill by which the statute was enacted. We note that this extrinsic source of meaning is of far less value than those previously related because of its ephemoral extra-record character and because remarks of individual legislators, even when disclosed to a house of the Legislature, do not necessarily reflect the views of other legislators. (See In Re Marriage of Bouquet (1976) 16 Cal.3d 583, 589–590, 128 Cal.Rptr. 427, 546 P.2d 1371.)From a synopsis of the Assembly debate it appears that the floor sponsor, Assemblyman Lindsay, asserted that the bill was to protect a stream from drying up in Mono and Inyo counties. When questioned by another member about whether the bill would give a priority to fish over domestic uses of water Assemblyman Lindsay reportedly replied “that the bill simply continues a policy already established in the law and would not give any right to appropriate water for fish purposes, and that therefore there would be no priority for fish.”Questioned further about the effect of the provisions on water law Lindsay read from an opinion prepared by the Legislative Counsel. The pertinent component of that opinion is: “It must be recognized that it is possible that there might be some conflict between the provisions of the bill and the requirements of Section 3 of Article XIV of the Constitution (which requires that water be used for a beneficial purpose) if the water was required, for example, for human consumption and the court found that under such circumstances the use of the water for fish life was not a reasonable beneficial use (see Tulare Irrigation District v. Lindsay–Strathmore Irrigation District, 3 Cal.2d 489, 567, [45 P.2d 972] ). However, since the bill contains a severability clause, the possible conflict does not affect the constitutionality of the bill in instances where its provisions can be properly applied.”These remarks are somewhat ambiguous concerning Assemblyman Lindsay's reading of the proposed bill as to its effect as a rule of water allocation. On the one hand Lindsay asserted there would be no priority for fish; on the other hand he asserted the enactment would prevent the drying up of the stream. However, immediately thereafter other members flatly asserted that the bill would give fish a priority over all other uses. “Assemblyman Lowrey then took the floor in opposition to the bill, stating that he had an opinion from the legal staff of the State Engineer that the bill would give fish priority over all other uses. He stated that there was a constitutional question involved, in the opinion of the attorneys for the State Engineer. He then suggested that the bill should be amended to take out the first section. [¶] Assemblyman Thomas spoke briefly in favor of the bill on the ground that if it is not enacted fishing on the stream in question might be destroyed. [¶] Assemblyman Hansen objected to the bill on the ground that it would establish a bad precedent, and that the Department of Fish and Game would follow it up with later requests to the Legislature for the same provisions in other areas. [¶] Assemblyman McFall objected to the bill on the ground that it would give priority to fish over domestic uses, and on the ground that the present law provides adequate protection for fish life. [¶] Roll was then called and the bill was passed by a vote of 42 to 14.”In the aggregate this account of the debate on the bill in the Assembly supports the conclusion that the importation of the rule of section 5937 was meant to result in the application of that rule to the allocation of water.This view also finds extrinsic support, albeit the source is of vanishing small significance, in the various assertions of parties opposing and supporting the Governor's veto of the bill. Both groups, including the Department of Fish and Game, which supported the bill, and the State Water Resources Control Board, which opposed it, based their position on the premise that the bill affected a change in the law of appropriation of water.
10. “ ‘And/or’ is taboo” in legislative drafting. (See Cal.Code Comm.Rep. (1949) p. 34.)
11. L.A. Water and Power requests that we take judicial notice of numerous orders of the Water Board granting extensions of time as to completion of the appropriation authorized under permits 5555 and 5556. No party objects to this request and we do so, albeit plaintiffs National Audubon Society and Mono Lake Committee note that the orders of extension of time have numerous unexplained gaps between the expiration of prior orders and their extension. Even discounting these defaults, the showing does not affect our view concerning retroactivity. Only one extension as to each of these permits was issued prior to September 9, 1953. The extensions which were granted after that date, the effective date of section 5946, cannot serve to bootstrap the claim of L.A. Water and Power around the bar of the statute. As explained in the text, the only action that could serve as a ground supporting a claim of retroactivity, predicated upon the appropriation of water, is action taken prior to the enactment of the statute in reliance upon an accurate perception of prior law.
12. L.A. Water and Power contrasts this absence with the consistent presence of such a condition as to licenses on permits in District 4 1/212 issued after the date of enactment of section 5946. However, the inference that the presence of conditions in these licenses is attributable to an application and construction of section 5946 is not compelled. We note that Water Board regulations now provide that all permits, not just those which pertain to District 4 1/212, be conditioned on compliance with section 5937. (23 Cal.Admin.Code, § 782.) Hence, the presence of such conditions in licenses pertaining to District 4 1/212 does not have any necessary bearing on the Water Board's view of section 5946.
13. The Water Board does not contend that plaintiffs have failed to exhaust an available administrative remedy. (See Audubon, supra, 33 Cal.3d at pp. 449–451, 189 Cal.Rptr. 346, 658 P.2d 709.)
BLEASE, Associate Justice.
PUGLIA, P.J., and EVANS, J., concur.