Flexible Framework or Rigid Doctrine? Assessing the Legacy of the 2000 Mojave Decision for Resolving Disputes over Groundwater in California
The string of California Supreme Court cases establishing and elucidating groundwater pumping rights and rules for adjudicating them, culminating in the court's 2000 decision in City of Barstow v. Mojave Water Agency, has produced a framework that is frustratingly rigid and unclear at the same time. Fully litigating the relevant issues under that framework is a potentially time consuming and expensive slog. The rigidity drives up the cost of proving rights and the appropriate formula for allocating water, while the uncertainty creates room for litigious mischief. However, a close look at seven adjudications that have gone to judgment since Mojave shows a more complex and interesting story. In five of those cases, the parties and the courts effectively finessed the property rights rules to reach relatively quick settlements that included creative groundwater management solutions. In two of the seven, however, the Mojave framework produced over a decade of litigation. Both lines of cases hold important lessons for groundwater management generally, and for California as it moves forward in implementing the Sustainable Groundwater Management Act of 2014.