Musick, Peeler & Garrett LLP Musick, Peeler & Garrett LLP
Jane Ellison Usher (SBN 93783) William H. Hair (SBN 30134)
Cheryl A. Orr (SBN 132379) 2801 Townsgate Road, Suite 200
624 S. Grand Avenue, #2000 Westlake Village, CA 91361
Los Angeles, CA 90017 Telephone: (805) 418-3100
Telephone: (213) 629-7600 Facsimile: (805) 418-3101
Facsimile: (213) 624-1376
First, the District submits that the administrative records for the
2011-2012 and 2012-2013 water years contain substantial evidence,
consistent with the Sinclair Paint analysis confirmed to apply by the
Supreme Court, demonstrating the groundwater pumping rates charged
by the District bore a reasonable relationship to the City’s burdens on or
benefits from the District’s conservation activities. Neither judicial
notice nor new evidence is necessary, in the District’s view, for the Court
1
On the grounds that reply briefs to motions filed on appeal are not permitted
by the California Rules of Court, the City has moved to strike the District’s
reply brief filed on May 14, 2018 in support of the District’s first request for
judicial notice and taking of new evidence on remand. In anticipation of a
second City motion to strike this reply, the District again relies on the
authority provided by the Court’s online statement of its Practices and
Procedures, specifically the instruction that: “Replies to oppositions to
motions” are “due 5 days after filing of opposition to the motion*
(*Generally, the Court of Appeal does not wait for a reply to be filed unless at
its request.).” (See http://www.courts.ca.gov/2970.htm.)
1105045.1 2
to reach this conclusion on the one dispositive question that the Supreme
Court has obligated the Court to address on remand.
1105045.1 3
Evidence, filed May 8, 2018, at p. 20.) The City stated that, if this Court
were to consider the District’s evidence, then “it should allow the parties
equal opportunity to present evidence.” (Id., at p. 21.) The City actually
requested in the alternative to denying the motion that the Court take
judicial notice of the entire 2013-2014 administrative record. (Ibid.) In
response, the District filed the second request to take judicial notice of
the entire record of the District’s 2013-2014 ratemaking. (District’s
Second Request for Judicial Notice/New Evidence, filed May 14, 2018.)
The District’s second request answers the City’s criticism by offering all
evidence to the Court that might possibly be useful to the City, closing
the door on any suggestion that the District seeks to conceal or limit the
Court to a one-sided presentation on the “fair or reasonable” question.
The District submits that this Court is the most appropriate forum
for deciding the remaining constitutional issue. Its ruling will preclude
remand to the trial court for further proceedings that will ultimately be
subject to independent review by this Court – an avoidable waste of
1105045.1 4
resources that will delay the administration of justice. The District’s
goal is to conclude this case with efficiency. As must be apparent, the
City’s goal is to shower the Court with dust and smoke, but not answers
or light, in the hopes that this matter will be returned to the trial court,
where it can be swept up into the City’s lawsuits challenging the
District’s later water years, for which no briefing or other activity has
commenced. That strategy has its own purposes, but that purpose is not
timely justice.
1105045.1 5
[Service on Attorney General
required by Rule 8.29(c)(1)]
2ND Civil No.
[Exempt From Filing Fee
B251810 Government Code § 6103]
Musick, Peeler & Garrett LLP Musick, Peeler & Garrett LLP
Jane Ellison Usher (SBN 93783) William H. Hair (SBN 30134)
Cheryl A. Orr (SBN 132379) 2801 Townsgate Road, Suite 200
624 S. Grand Avenue, #2000 Westlake Village, CA 91361
Los Angeles, CA 90017 Telephone: (805) 418-3100
Telephone: (213) 629-7600 Facsimile: (805) 418-3101
Facsimile: (213) 624-1376
First, the District submits that the administrative records for the
2011-2012 and 2012-2013 water years contain substantial evidence,
consistent with the Sinclair Paint analysis confirmed to apply by the
Supreme Court, demonstrating the groundwater pumping rates charged
by the District bore a reasonable relationship to the City’s burdens on or
benefits from the District’s conservation activities. Neither judicial
notice nor new evidence is necessary, in the District’s view, for the Court
1
On the grounds that reply briefs to motions filed on appeal are not permitted
by the California Rules of Court, the City has moved to strike the District’s
reply brief filed on May 14, 2018 in support of the District’s first request for
judicial notice and taking of new evidence on remand. In anticipation of a
second City motion to strike this reply, the District again relies on the
authority provided by the Court’s online statement of its Practices and
Procedures, specifically the instruction that: “Replies to oppositions to
motions” are “due 5 days after filing of opposition to the motion*
(*Generally, the Court of Appeal does not wait for a reply to be filed unless at
its request.).” (See http://www.courts.ca.gov/2970.htm.)
1105045.1 2
to reach this conclusion on the one dispositive question that the Supreme
Court has obligated the Court to address on remand.
1105045.1 3
Evidence, filed May 8, 2018, at p. 20.) The City stated that, if this Court
were to consider the District’s evidence, then “it should allow the parties
equal opportunity to present evidence.” (Id., at p. 21.) The City actually
requested in the alternative to denying the motion that the Court take
judicial notice of the entire 2013-2014 administrative record. (Ibid.) In
response, the District filed the second request to take judicial notice of
the entire record of the District’s 2013-2014 ratemaking. (District’s
Second Request for Judicial Notice/New Evidence, filed May 14, 2018.)
The District’s second request answers the City’s criticism by offering all
evidence to the Court that might possibly be useful to the City, closing
the door on any suggestion that the District seeks to conceal or limit the
Court to a one-sided presentation on the “fair or reasonable” question.
The District submits that this Court is the most appropriate forum
for deciding the remaining constitutional issue. Its ruling will preclude
remand to the trial court for further proceedings that will ultimately be
subject to independent review by this Court – an avoidable waste of
1105045.1 4
resources that will delay the administration of justice. The District’s
goal is to conclude this case with efficiency. As must be apparent, the
City’s goal is to shower the Court with dust and smoke, but not answers
or light, in the hopes that this matter will be returned to the trial court,
where it can be swept up into the City’s lawsuits challenging the
District’s later water years, for which no briefing or other activity has
commenced. That strategy has its own purposes, but that purpose is not
timely justice.
1105045.1 5
Exempt from Filing Fees
Government Code § 61 03
No. 8251810
Service on Attorney General
required by Rule 8.29(c)(l)
vs.
195249.3
To the Honorable Presiding Justice and Associate Justices of the
District, Division 6:
~ I..AoO ~v::>~
MICHAEL G. COLANTUONO
DAVID J. RUDERMAN
LILIANE M. WYCKOFF
Attorneys for Respondent and
Cross-Appellant
CITY OF SAN BUENAVENTURA
2
195249.3
MEMORANDUM
On May 25, 2018, UWCD filed a Reply in Support of the
District's Second Request for Judicial Notice and Motion to Take
Additional Evidence on Appeal. The California Rules of Court do
(Eisenberg, et al., Cal. Prac. Guide: Civ. App. & Writs (The Rutter
Group 2017) 'li 5.254.) UWCD did not request leave from the Court
to file a reply brief here. Nor has UWCD made any showing this is
the rare circumstance when good cause demands this Court allow a
reply. Instead, the District relies on the Second District's practices
3
195249.3
!
1:
1':
r:~
and procedures identifying when and how to file and serve a reply
when otherwise justified, as though such a rule were justification
itself. (Reply Br. at p. 2, fn, 1.) The Court of Appeal's practices and
~'-""> ~~
MICHAEL G. COLANTUONO
DAVID J. RUDERMAN
LILIANE M. WYCKOFF
Attorneys for Respondent and
Cross-Appellant
CITY OF SAN BUENAVENTURA
4
195249.3
I
[PROPOSED]
ORDER
SO ORDERED.
Dated: _ _ _ _ _ __
Hon. Arthur L. Gilbert
Presiding Justice
5
195249.3
PROOF OF SERVICE
6
195249.3
I
:
cancellation date or postage meter date is more than one day after
service of deposit for mailing in affidavit.
7
195249.3
SERVICE LIST
City of San Buenaventura v. United Water Conservation District, et al.
Supreme Court Case No. S226036
Court of Appeal, Second Appellate District, Div. 6, Case No. B251810
Santa 8arbara Superior Court Case Nos. VENCI 00401714 & 1414739
8
195249.3
Via U.S. Mail Via U.S. Mail
Adam Hoffmann Stanly Tokio Yamamoto
Hanson Bridgett LLP Office of District Counsel
425 Market Street, 26th Floor 5750 Almaden Expressway
San Francisco, CA 94105 San Jose, CA 95118
Attorneys for Santa Clara Valley Attorneys for Santa Clara Valley II,
Water District, Amicus Curiae Water District, Amicus Curiae
I
9
195249.3
Via U.S. Mail Via U.S. Mail
Jeffrey S. Lawson Jeffrey J. Patrick
Silicon Valley Law Group Ernest A. Conant
1 North Market Street, Suite 200 Law Offices of Young
San Jose, CA 95113 Wolldridge, LLP
Attorneys for Great Oaks Water 1800 30th Street, 4th Floor
Company, Amicus Curiae Bakersfield, CA 93301
Santa Ynez River Water
Conservation District, Amicus
Curiae
10
195249.3
Via U.S. Mail Via U.S. Mail
June S. Ailin Heather C. Beatty
Alshire & Wynder, LLP Marcia Scully
18881 Von Karman Ave., #1700 The Metropolitan Water District
Irvine, CA 92612 of Southern California
Attorneys for City of Signal Hill, 700 North Alameda Street
Amicus Curiae Los Angeles, CA 90012-2944
Attorneys for The Metropolitan
Water District of Southern
California, Amicus Curiae
11
195249.3
Exempt from Filing Fees
Government Code § 61 03
No. 8251810
Service on Attorney General
I
required by Rule 8.29(c)(l)
vs.
194748.4
To the Honorable Presiding Justice Gilbert and Associate
Justices of the Court of Appeal:
Evidence on Appeal.
UWCD only considered all285 exhibits in this record after the two
part of the records on which this Court reviews the rates in issue -
consider this evidence, the City has not had opportunity to brief the
evidence of which the District seeks notice, either here or in the trial
court, where the proceedings have been stayed pending this appeal.
2
194748.4
effort to decide not only the validity of the charges in FYs 2011-2012
and 2012-2013, but also the FY 2013-2014 charges - all within the
90-days permitted post-submission - when the trial court would be
better suited to this task. Indeed, that the District goes to such
extraordinary lengths to have the Court review this subsequent
record demonstrates that it agrees that the two rate-making records
in issue are insufficient to justify these rates under Proposition 26.
The City opposes this Second Request for Judicial Notice and
Motion to Take New Evidence on Appeal. The Court should deny
UWCD's attempt to impermissibly obtain notice of extra-record
evidence in violation of settled case law, the separation of powers,
our common law, and UWCD's principal act.
3
194748.4
II. ARGUMENT
4
194748.4
Cross-Respondent Brief, filed with this Court April17,
2014.
briefed its merits pending this appeal. In addition, this Court has not
provided the parties an opportunity to brief this evidence either,
particularly because it denied UWCD's request to notice a portion of
5
194748.4
the FY 2013-2014 record before Supreme Court review. Thus, were
the Court to grant the District's motion, this Court would be the first
to review this voluminous record without the benefit of briefing by
the parties, or findings by the trial court.
While the City agrees with UWCD that any review of the
FY 2013-2014 rates must be made on the entire record, the trial court
is better suited to that task This Court is obligated to resolve this
appeal by July 23, 2018 - within 90 days of its April 24, 2018
submitted. (Cal. Const., art. VI,§ 19.) Such a short time is not
conducive to fact finding from the lengthy and complex records
here.
Ill. CONCLUSION
6
194748.4
I
..)'y,:}w:::> ~.rn..-...
MICHAEL G. COLANTUONO
DAVID J. RUDERMAN
LILIANE M. WYCKOFF
Attorneys for Respondent and
Cross-Appellant
CITY OF SAN BUENAVENTURA
7
194748.4
I.I.~·
I"
,,~
PROOF OF SERVICE
8
194748.4
)L BY E-MAIL OR ELECTRONIC TRANSMISSION:
Based on a court order or an agreement of the parties to accept
service by e-mail or electronic transmission, by causing the
documents to be sent to the persons at the e-mail addresses listed on
the service list on May 22, 2018 from the court authorized e-filing
service at TrueFiling.com. No electronic message or other indication
that the transmission was unsuccessful was received within a
reasonable time after the transmission.
ExecutedonMay22,2018,ot~j_.
Ashle)TAUOY
9
194748.4
SERVICE LIST
City of San Buenaventura v. United Water Conservation District, et al.
Supreme Court Case No. S226036
Court of Appeal, Second Appellate District, Div. 6, Case No. B251810
Santa Barbara Superior Court Case Nos. VENCI 00401714 & 1414739
Courtesy Copy
Via Email Through TrueFiling
Miles P. Hogan
Assistant City Attorney I.
~
City of Ventura
P.O. Box 99
Ventura, CA 93001 I
Phone: (805) 654-7818
Email:
mhogan@cityofventura.ca.gov
Attorneys for Appellant City of San
Buenaventura
10
194748.4
Via U.S. Mail Via U.S. Mail
Alan Diamond Stanly Tokio Yamamoto
Greines Martin Stein & Richland Office of District Counsel
5900 Wilshire Blvd., 12th Floor 5750 Almaden Expressway
Los Angeles, CA 90036 San Jose, CA 95118
Attorneys for Santa Clara Valley Attorneys for Santa Clara Valley
Water District, Amicus Curiae Water District, Amicus Curiae
11
194748.4
Via U.S. Mail Via U.S. Mail
James R. Cogdill Jeffrey J. Patrick
Howard Jarvis Taxpayers Fnd. Ernest A. Conant
921 Eleventh Street, Suite 1201 Law Offices of Young
Sacramento, CA 95814 Wolldridge, LLP
Attorneys for Howard Jarvis 1800 30th Street, 4th Floor
Taxpayers Foundation, Amicus Bakersfield, CA 93301
Curiae Santa Ynez River Water
Conservation District, Amicus
Curiae
12
194748.4
Via U.S. Mail Via U.S. Mail
Robert M. Dato Heather C. Beatty
Buchalter & Nemer, PC Marcia Scully
18400 Von Karman Ave., #800 The Metropolitan Water District
Irvine, CA 92612-0514 of Southern California ! .
13
194748.4
Via U.S. Mail
Clerk of the Court
Santa Barbara Superior Court
1100 Anacapa Street
Santa Barbara, CA 93121-1107
14
194748.4
Exempt from Filing Fees
Government Code § 61 03
No. 8251810
Service on Attorney General
required by Rule 8.29(c)(l)
vs.
!94248.5
To the Honorable Presiding Justice and Associate Justices of the
Court of Appeal of the State of California for the Second Appellate
District, Division 6:
2
194248.5
• Page 6, last full sentence: "The City's pumping, which has
increased with its population growth, compounds this
overdraft problem."
3
194248.5
Basin include the Saticoy Spreading Grounds, which
increase the surface flow of the Santa Clara River."
• Page 15, last sentence of the first full paragraph: "It should
also be recognized that the City operates its municipal
water delivery service to those parcels at a profit."
case, exceed both the scope of the Court's letter request for
4
194248.5
~;
i
I
supplemental briefing and the records on this appeal and are
I.
5
194248.5
DATED: May 22, 2018 COLANTUONO, HIGHSMITH &
WHATLEY, PC
MICHAEL G. COLANTUONO
DAVID J. RUDERMAN
LILIANE M. WYCKOFF
Attorneys for Respondent and
Cross-Appellant
CITY OF SAN BUENAVENTURA
,.
I
6
194248.5
TABLE OF CONTENTS
MEMORANDUM .................................................................................................. 12
I. INTRODUCTION .................................................................................... I2
II. THE COURT SHOULD STRIKE OR DISREGARD UWCD's
MISREPRESENTATIONS ........................................................................ 14
A. UWCD Misrepresents the Law .................................................. 14
I. UWCD bears the burdens of production and
persuasion that its charges are limited to its
service or regulatory costs.............................................. 14
2. UWCD would ignore Proposition 26's
proportionality test, the application of which
was the very purpose of the Supreme Court's
remand ................................................................................. l7
B. UWCD Misrepresents the Record ............................................ 18
I. City does not threaten Santa Paula basin's
safe yield .............................................................................. 19
2. City's pumping has not increased with
population growth ............................................................. 19
3. M&l pumping has not recently exceeded
agricultural pumping .......................................................... 20
4. City wells are not in the over-drafted area of the
Oxnard Plain basin ............................................................ 21 f
5. The Saticoy and El Rio spreading grounds cannot I
deliver water to all basins ................................................ 22 I
6. UWCD misstates the effect of recharge on the
Santa Paula basin ................................................................ 23
7. The Mound basin receives indirect benefit from
UWCD's replenishment activities at best .................... 24
8. UWCD ignores apparent subsidy of piped
water charges ..................................................................... 26
7
194248.5
9.
The City does not and cannot profit from its
water utility ......................................................................... 26
I0. The City does not have the same population as
Ventura County.................................................................. 27
I I. The City did not waive its total cost of service
argument ............................................................................. 28
12. UWCD may not argue extra-record evidence ........... 29
Ill. REPLY BRIEF: UWCD'SARGUMENTS LACK MERIT .................. 29
A. Existence of the District's Zone B Charge Proves It
Does Not Limit Zone A Charges to Cost................................ 29
B. The District Cannot Show a Fair or Reasonable
Relationship Because It Comingles Its Zone A
Charge Proceeds With Discretionary Funds ............................ 32
C. UWCD Cannot Justify the 3: I Ratio with Factors
Unrelated to the City's Burdens on or Benefits from
the District's Services .................................................................... 33
IV. THE COURT SHOULD STRIKE OR DISREGARD UWCD'S
UNAUTHORIZED REPLY BRIEF ........................................................ 39
V. CONCLUSION ......................................................................................... 40
PROPOSED ORDER ............................................................................................ 42
8
194248.5
TABLE OF AUTHORITIES
Page(s)
Cases
Hawran v. Hixson
(2012) 209 Cal.App.4th 256 ................................................................... 5
9
194248.5
Moore v. City of Lemon Grove
(2015) 237 Cal.App.4th 363 ................................................................. 14
People v. Rhodes
(2005) 126 Cal.App.4th 1374 ...............................................................17
California Constitution
Article X ...................................................................................................... 35
Article X, § 2 ...............................................................................................35
Statutes
10
194248.5
Rules
11
194248.5
MEMORANDUM
I. INTRODUCTION
adduce and argue that evidence, and then allow that process to play
12
194248.5
out subsequently, allowing the parties and Court alike more time
the first question this Court's letter inviting briefs posed: Is the
sided brief presenting it. It did so aware this Court's order invited
resubmitted on April 24th, the City provides this motion to aid the
13
I 94248.5
II. THE COURT SHOULD STRIKE OR DISREGARD
UWCD'S MISREPRESENTATIONS
Cal.App.4th 982, 997; cf. Moore v. City of Lemon Grove, (2015) 237
Cal.App.4th 363, 375-376.) However, UWCD reads those older cases
to eviscerate Proposition 26's requirement a rate-maker prove a
service fee is not a tax by demonstrating it "does not exceed the
reasonable costs to the local government of providing the service or
product." (Cal. Const., art. XIII C, § 1, subd. (e)(2).) Were the
disputed charge viewed as a fee for a benefit or privilege or a
regulatory fee, a cost-of-service limit would still apply. (Cal. Const.,
art. XIII C, § 1, subd. (e)(1), (3) & final par.) Indeed, in California
Building Industry Association v. State Water Resources Control Board
(May 7, 2018, 5226753) _ Ca1.5th _ [2018 WL 2090997, at *10]
14
194248.5
(CBIA) our Supreme Court freshly holds regulatory fees cannot
15
194248.5
Moreover, the record does not support UWCD's claim that the
General Fund pays only for water conservation activity. UWCD cites
to its own resolutions and descriptions of the General Fund. (Supp.
16
194248.5
2. UWCD would ignore Proposition 26's
proportionality test, the application of
which was the very purpose of the Supreme
Court's remand
pay no more than service cost; only the class as a whole does so.
(Supp. Ltr. Br., p. 8.) This may be true if the class is rationally drawn
and comprises only those who put roughly comparable burdens on,
Otherwise, an agency could simply set one rate for the favored few
who are undercharged for the services they received and for the
17
194248.5
logic and evidence to conclude a customer class is well-drawn. Why
customers. (Supp. Ltr. Br., pp. 27-28.) Thus, its categories reflect the
political priorities of the 1966 Legislature and not the realities of how
evidence. For the sake of brevity, the City focuses on only UWCD's
..
18
194248.5
I. City does not threaten Santa Paula basin's
safe yield
Paula basin threatens that basin's safe yield. (Supp. Ltr. Br., p. 6.) In
fact, the City pumps far less than its adjudicated allocation of 3,000
allocated over 7 years].) Indeed, from 2009 to 2010, the City reduced
its extractions by nearly a half, to just 630 acre-fee, while agriculture
(AR2:55:22 [Table 3].) UWCD claims the City threatens the safe yield
(AR1:96:6; AR2:155:6.)
19
194248.5
demonstrate its pumping decreased - not increased - over recent
years as it, like other Southern California water utilities, has greatly
flow toilets, efficient drip irrigation practices, etc. Thus, the City's
cites only a 1993 Water Resource Evaluation for the Santa Paula
the Santa Paula basin. (Supp. Ltr. Br., pp. 6-7.) Again, it cites a
20
194248.5
while municipal use never exceeded 5700 AFY].) UWCD's 2009-2010
Groundwater Extractions].)
Ltr. Br., p. 7, 10.) It does not. Its Oxnard Plain wells are located in the
northwest, far from the southeast pumping hole. (AR1:78:8 & 13;
AR2:165:13 & 21.) The southeastern Oxnard Plain basin- and
Pleasant Valley basin, in which the City has no wells - suffer from
long-term overdraft, which the District itself found largely "has been
contrast, can sustain additional pumping that does not affect the
Indeed, the Oxnard Plain includes some five different aquifers. (See
21
194248.5
10 JAE 2024-2025 [distinguishing northwest and southeast Oxnard
several basins. (Supp. Ltr. Br., at p. 6.) Not so. The Saticoy and El Rio
spreading grounds are designed to "recharge the aquifers
Valley basin through the Pumping Trough Pipeline and the Pleasant
i
t
22
194248.5
basins in the District, but instead connect the spreading grounds to
the agricultural pipelines. (ARl :28:20.)
UWCD falsely claims these spreading grounds "provide
recharge for all District basins." (Supp. Ltr. Br., p. 10.) However, it
cites a study of only the spreading grounds' impact on the Oxnard
Plain basin and, in particular, two of five aquifers that compose it -
the upper and lower aquifers. (AR1:18:6 [finding spreading
recharges upper, but not lower, Oxnard Plain aquifer].) The Saticoy
and El Rio spreading grounds thus recharge the Oxnard Plain and
the Oxnard Forebay (aka Montalvo) basins- but not the Mound or
Santa Paula basins where the City also maintains wells - and pipe
water to the agricultural users in the southeast whose long-term
extractions have created a pumping hole there.
23
194248.5
Basin doesn't respond to recharge at United Water's Saticoy
is recharged by the Oxnard Plain and the Santa Paula basins. (Supp.
Ltr. Br., p. 10.) The sources and amount of recharge to the Mound
24
194248.5
connection between the Santa Paula and Mound basins is uncertain.
the Mound basin must cross the Montalvo fault, which indicates
Aquifer into the Mound Basin." (AR1:4:5; AR2:5:70.) Thus, while the
Paula basin and from the Ventura foothills to some extent, it is not
total demand in the Mound basin. (Supp. Ltr. Br., p. 10.) Again, it
cites stale evidence - a 1996 study prepared for the City. (AR1:92:1.)
2003 at over 5,500 acre-feet, and has declined fairly steadily in recent
years." (Ibid.; see also AR2:52:61 [Figure 5-2: Annual Mound basin
25
194248.5
8. UWCD ignores apparent subsidy of piped
water charges
UWCD claims piped water users pay the costs to serve them.
(Supp. Ltr. Br., p. 7.) It does not, however, rebut the City's
observation (City Supp. Ltr. Br., p. 31) the funds in which those fees
services subsidize piped water service and are therefore not used for
at p. *11] [water regulatory fee not tax because, inter alia, "the gap
between storm water permit fee revenues and storm water program
Br., p. 15), which would violate Proposition 218 under such cases as
26
194248.5
(Capistrano). UWCD does not base this incredible claim on record
evidence, but on a 1986 decision of our Supreme Court holding that
Proposition 13 was not offended if the City received a rate of return
UWCD claims the City did not argue to .the Supreme Court
that UWCD' s fees exceed the total cost of service, citing only
language in the Supreme Court opinion noting the City accepted one
authority UWCD cites on that point, but argued another. (Supp. Ltr.
Br., p. 33 [citing Ventura, supra, 3 Cal.Sth at p. 1212].) The City did, of
course, present the total cost argument to the Supreme Court.
(Opening Brief on the Merits, at p. 42 et seq. ["The Charges Exceed
the Total Cost to Provide the Service"].) Again, even if this Court
treats the requirements of article XIII C, section 1, subdivision (e)(2)
as resolved for UWCD here, one cannot meaningfully address the
final paragraph of that section 1 without some consideration to what
it costs UWCD to provide the service for which it charges the City.
(Cf. CBIA, supra,_ Cal.Sth _ [2018 WL 2090997 at p. *11] [noting
28
I 94248.5
12. UWCD may not argue extra-record
evidence
29
194248.5
the services from which the City benefits. (Supp. Ltr. Br., p. 12.)
The City pays both Zone A and Zone B charges for pumping
from some of its wells. If Zone B does not cover all the costs of the
Freeman Diversion Dam, then the General Fund must subsidize the
charges may only fund services for that zone - not services
water charge levied by the district in any zone or zones, shall not
produce funds for district purposes that would exceed such amount
30
194248.5
available to the owners of the property in question .... The
groundwater extraction charges are not imposed for services that are
the Freeman Diversion Dam serves but part of the District, then
UWCD must charge all its costs to construct and operate that Dam
to Zone B. Yet, UWCD admits otherwise. (Supp. Ltr. Br., p. 10
equal protection violation. (E.g., jensen v. Franchise Tax Bd. (2009) 178
31
194248.5
on the administrative records) if the City pays a rate which bears a
fair or reasonable relationship to its benefits or burdens on the
District's services. The Court cannot do so without examining the
what the District chooses to spend from its General Fund is not a
proper estimate of what it costs to provide water conservation
32
194248.5
~l!
I
I·
UWCD seeks to justify the 3:1 ratio, citing no fewer than eight
those services - the essential terms of the test the Supreme Court
that these factors are reflected in its record and bear some
per parcel than for urban water use. (Ibid.) True, but irrelevant.
I
Impacts on groundwater basins are not affected by the imaginary
I
I
33
194248.5
lines drawn in a watershed to determine land ownership. Indeed, it
34
194248.5
argument is neither proven on these records nor a reason to shirk
and not as UWCD and the farmers for whom it advocates would
prefer. (Silicon Valley Taxpayers Ass'n, Inc. v. Santa Clara County Open
Space Authority (2008) 44 Cal.4th 431, 448 [Courts must "enforce the
provisions of our Constitution and 'may not lightly disregard or
Third, UWCD continues to claim that the 3:1 ratio serves the
argument fails to persuade for two reasons. First, the law does not
true that overcharging City customers for water will encourage them
to conserve, but the same can be said for any overcharge. More
35
194248.5
Fourth, UWCD points out that the City is growing and
therefore increasing its water demand. (Supp. Ltr. Br., p. 17.) If true,
produced from the basins the District seeks to conserve, while M&I
the southeastern Oxnard Plain and Pleasant Valley basins; the City's
4 AF means "acre-foot."
36
194248.5
I·.
wells are located elsewhere. (AR1:62:34 ["the majority of the I
1.
overdraft in the Oxnard [P]lain aquifers has been caused by
septic use pose water quality challenges. (Supp. Ltr. Br., p. 17.) But
UWCD does not show these uses are in the City- which is sewered
- or that agricultural use does not pose water quality problems of
its own, such as overuse of fertilizers or concentration of naturally
occurring substances like selenium and arsenic.
Sixth, UWCD argues the 3:1 ratio is justified because the City
supply the 0-H potable water system"].) Nor does UWCD discuss
37
194248.5
the equally important benefit to farmers from a reliable source of
water that will not kill their crops, as will salty water.
Seventh, UWCD claims, based on extra-record evidence, that
the City's use of water returns less water to the groundwater table.
(Supp. Ltr. Br., p. 18.) True, but UWCD's selective recitation of extra-
record evidence shows this difference cannot justify the 3:1 ratio or
demonstrate that all City water use is appropriately treated as
flowing to the ocean, as UWCD's latest argument does. (Supp. Ltr.
Br., p. 27-28 [showing ratio of, at best for UWCD, 22.2% to 13.8%
recharge as between agriculture and M&I- a ratio of 1.6 to 1].)5
That UWCD must cite extra-record evidence to make this claim (and
the City therefore examines that data in response) proves this record
cannot justify the 3:1 ratio on this basis.
Eighth and finally, UWCD argues both that its rates do not
exceed the cost of its water conservation services in toto (Supp. Ltr.
Br., p. 13) and that the City exceeds the scope of the issues on
remand to argue the contrary (Id. at p. 34). The two arguments are
contradictory and therefore unpersuasive. Moreover, as detailed
supra, UWCD cannot show its rates do not exceed the cost of
38
194248.5
determined Proposition 26 requires. (CBIA, supra,_ Cal.5th _ [2018
WL 2090997, at *10] [regulatory fees may not exceed estimated cost
of regulatory program].) The only record evidence UWCD can cite is
water conservation.
The Court need not sort out these disparate and inconsistent
claims in the short period it has to resolve this appeal. It need only
observe that the records UWCD made for the two rate-makings at
issue did not state the justifications UWCD offers for the statutory
3:1 ratio. If UWCD desires to rely on these justifications to benefit
farmers at the expense of its non-agricultural constituents, it may do I
so in its legislative discretion on a future record -assuming I!
I
substantial evidence can be mustered for these points. For now, they
are but the unsupported, post hoc rationalizations of counsel. I
I
IV. THE COURT SHOULD STRIKE OR DISREGARD
UWCD'S UNAUTHORIZED REPLY BRIEF I
,1.
1...
39
194248.5
Appeal. The California Rules of Court do not authorize a reply in
reply.
As UWCD' s purported Reply is improper and unauthorized,
the Court should strike it in its entirety or, in the alternative,
disregard it.
V. CONCLUSION
40
194248.5
form of order), simply ignore them, or accept this motion as a reply
brief. The issues here are of too great an import to be decided in the
MICHAEL G. COLANTUONO
DAVID J. RUDERMAN
LILIANE M. WYCKOFF
Attorneys for Respondent and
Cross-Appellant
CITY OF SAN BUENAVENTURA
I'
!
41
194248.5
[PROPOSED] ORDER
!
!
pages 2-3.
• Page 5, first full paragraph, sentence beginning: "As the
record confirms .... "
• Page 6, first full paragraph, last sentence: "The Saticoy and
El Rio spreading grounds were designed with a canal
42
194248.5
system, allowing selective delivery to each basin in the
district."
• Page 10, first bullet point, first sentence, second clause: "the
[Freeman Diversion] dam provides recharge for all District
43
194248.5
basins by supplying water to the Saticoy and El Rio
spreading grounds."
• Page 10, second bullet point, second sentence: "The
44
194248.5
charges did not in the aggregate exceed its regulatory
costs."
SO ORDERED.
Dated: _ _ _ _ _ __
Hon. Arthur L. Gilbert
Presiding Justice
45
194248.5
PROOF OF SERVICE
46
194248.5
cancellation date or postage meter date is more than one day after
service of deposit for mailing in affidavit.
47
194248.5
I'
I
SERVICE LIST
City of San Buenaventura v. United Water Conservation District, et al.
Supreme Court Case No. S226036
Court of Appeal, Second Appellate District, Div. 6, Case No. B251810
Santa Barbara Superior Court Case Nos. VENCI 00401714 & 1414739
City of Ventura
P.O. Box 99 I'
Ventura, CA 93001 I
Phone: (805) 654-7818
Email:
mhogan@cityofventura.ca.gov
Attorneys for Appellant City of San
Buenaventura
48
1942485
Via U.S. Mail Via U.S. Mail
Alan Diamond Stanly Tokio Yamamoto
Greines Martin Stein & Richland Office of District Counsel
5900 Wilshire Blvd., 12th Floor 5750 Almaden Expressway
Los Angeles, CA 90036 San Jose, CA 95118
Attorneys for Santa Clara Valley Attorneys for Santa Clara Valley
Water District, Amicus Curiae Water District, Amicus Curiae
49
194248.5
Via U.S. Mail Via U.S. Mail
James R. Cogdill Jeffrey J. Patrick
Howard Jarvis Taxpayers Fnd. Ernest A. Conant
921 Eleventh Street, Suite 1201 Law Offices of Young
Sacramento, CA 95814 Wolldridge, LLP
Attorneys for Howard Jarvis 1800 30'h Street, 4'h Floor
Taxpayers Foundation, Amicus Bakersfield, CA 93301
Curiae Santa Ynez River Water
Conservation District, Amicus
Curiae
50
194248.5
Via U.S. Mail Via U.S. Mail
Robert M. Dato Heather C. Beatty
Buchalter & Nemer, PC Marcia Scully
18400 Von Karman Ave., #800 The Metropolitan Water District
Irvine, CA 92612-0514 of Southern California
Attorneys for Tesoro Refining and 700 North Alameda Street
Marketing Company LLC, Amicus Los Angeles, CA 90012-2944
Curiae Attorneys for The Metropolitan
Water District of Southern
California, Amicus Curiae
51
194248.5
Via U.S. Mail
Clerk of the Court
Santa Barbara Superior Court
1100 Anacapa Street
Santa Barbara, CA 93121-1107
52
194248.5
[Service on Attorney General
required by Rule 8.29(c)(1)]
2ND Civil No.
[Exempt From Filing Fee
B251810 Government Code § 6103]
Musick, Peeler & Garrett LLP Musick, Peeler & Garrett LLP
Jane Ellison Usher (SBN 93783) William H. Hair (SBN 30134)
Cheryl A. Orr (SBN 132379) 2801 Townsgate Road, Suite 200
624 S. Grand Avenue, #2000 Westlake Village, CA 91361
Los Angeles, CA 90017 Telephone: (805) 418-3100
Telephone: (213) 629-7600 Facsimile: (805) 418-3101
Facsimile: (213) 624-1376
Page
1103212.2 2
TABLE OF AUTHORITIES
Page(s)
Cases
California Association of Professional Scientists v.
Department of Fish & Game
(2000) 79 Cal.App.4th 935 ............................................................ 12
In re Saldana
(1997) 57 Cal.App.4th 620 ............................................................ 13
1103212.2 3
Tupman v. Haberkern
(1929) 208 Cal. 256 ....................................................................... 15
Statutes
California Environmental Quality Act, Public Resources
Code section 21000, et seq. ........................................................... 11
1103212.2 4
The United Water Conservation District and the Board of Directors of
United Water Conservation District (collectively the “District”) file this Reply
in Support of the District’s Request for Judicial Notice and Motion to Take
Additional Evidence on Appeal in response to the Opposition (“Opposition”)
filed by the City of San Buenaventura (the “City”).
The District agrees that this Court could alternatively consider extra-
record evidence, including, as the City suggests in its Opposition, the entire
administrative record (“AR”) for the 2013-2014 water year, for the purposes
of similarly facilitating a final resolution of the article XIII C constitutional
issue before this Court and forestalling any further review by the Supreme
Court or need for further proceedings below. 1
1
Concurrently herewith, the District is lodging a flash drive containing the
entire certified AR for the 2013-2014 water year and a Second Request for
Judicial Notice of that full AR.
1103212.2 5
I. The Supreme Court Has Invited This Court to Consider Whether
Supplemental Evidence May be Provided on Remand, and Denied
the City’s Request to Strike This Instruction
In making this determination [of whether the rates meet the reasonable
relationship requirement of Proposition 26], the Court of Appeal may
consider whether, as the District argues, it should be afforded the
opportunity to supplement the administrative record with evidence
bearing on this question. (Opinion, p. 27.)
The Supreme Court denied the City’s Petition for Rehearing. The
Court did, however, modify the “penultimate sentence” to clarify that both
parties could request consideration of extra-record evidence, stating:
1103212.2 6
The matter was specifically “remanded for further proceedings consistent with
this opinion.” (Ibid.)
The Supreme Court merely clarified, as the City asked, that this Court
could consider a request by either of the parties.
II. The Court Has the Power under Section 187 to Consider Extra-
Record Evidence, and Western States is Not the Absolute Bar That
the City Makes it Out to Be
The City’s continued insistence that Western States bars this Court
from considering extra-record evidence ignores the express admonition by the
Supreme Court in that very decision that it was not foreclosing “the possibility
that extra-record evidence may be admissible in traditional mandamus actions
challenging quasi-legislative administrative decisions under unusual
circumstances . . . .” (Western States, supra, 9 Cal. 4th at p. 579.)
1103212.2 7
the law relating to interpretation and obligations of Proposition 218 and later
Proposition 26 was in a state of flux and uncertainty, the parties both
participated years ago in extensive public hearing of the proferred extra-record
evidence – the most pertinent of which has previously been offered by one
party or the other to the Court, and where millions of dollars of funds
earmarked for vital regulatory and conservation activities hang in the balance.
The City’s arguments that the District has not demonstrated that the
extra-record evidence falls within the limited exception in Western States are
internally inconsistent and should be rejected. In Section II.A of its
Opposition, the City argues that the information that the District seeks to
introduce existed at the time of the original rate hearings, while in Section II.C
the City contends that the District’s evidence is dated after the second rate-
making proceeding at issue here. (Compare Opposition, p. 11 with pp. 18 and
20.) The City’s irreconcilable arguments highlight an important fact.
1103212.2 8
consolidated administrative records in this proceeding to which the District
has cited in its Supplemental Letter Brief for substantial evidence of the
reasonableness of the District’s rates under article XIII C. Yet, the specific
technical and expert analyses of that data reflecting the precise quantification
of the differences between agricultural and non-agricultural recharge of the
groundwater in the district did not exist during the prior rate proceedings. The
District admittedly did not undertake to prepare a quantitative analysis of the
differential between the rates for agricultural and non-agricultural pumpers of
ground water during the original 2011-2012 and 2012-2013 rate hearings
because the District did not know the law required as much. As the
requirements of the law were still evolving, it cannot be said that the District
failed to act with reasonable diligence in not adducing that type of quantitative
information earlier, when no case had required such specific evidence.
Indeed, the specific quantification data that the District prepared for the
2013-2014 rate-making proceeding was designed to comport with the
Proposition 218 requirements, which the Supreme Court has now confirmed
do not apply to the groundwater pumping charges in dispute. Instead, the
Supreme Court has ruled that a less rigid, more flexible, allocation approach
fairly or reasonably allocating the rates based on the burdens imposed by non-
agricultural groundwater pumpers, like the City, and the benefits they receive
from the District’s regulatory activities, is all that is constitutionally required
in an article XIII C case, such as this one. Had the District previously known
the legal standard under which its rates would be evaluated by the courts, the
District could have more easily expressed the benefits received and burdens
imposed by non-agricultural versus agricultural pumpers during the 2011-2012
(“AR1”) and 2012-2013 (“AR2”) ratemaking proceedings by referencing the
historical data in AR1 and AR2 that the technical and consultants’ reports
discussed more extensively in the 2013-2014 rate-making proceeding to justify
1103212.2 9
its groundwater pumping charges. The City asks the Court to turn a blind eye
to the underlying evidence that was available and did exist at the time of the
District’s ratemaking that was subsequently quantified in the later technical
and consultant reports, which evidence demonstrates the constitutionality of
the disputed rates, but the District did not know at the time would suffice or
was necessary under article XIII C jurisprudence.
1103212.2 10
Town of Tiburon v. Bonander (2009) 1980 Cal.App.4th 1057, 1076 [taking
extra-record evidence in an article XIII D case] 2.)
2
The City concedes, as it must, that the Court did consider extra-record
evidence in the Town of Tiburon case.
1103212.2 11
5 years is not unfair and would not simply be a “post hoc rationalization by the
agency” of its rates in dispute in this case.
1103212.2 12
that the Supreme Court subsequently concluded six years later in Voices of the
Wetlands that a Court has the inherent power under Code of Civil Procedure
section 187 to allow extra-record evidence even in situations not specified in
section 1094.5, subd. (f), the District submits that the same power necessarily
exists where the Court is deciding a traditional mandate case, like this one,
which is not subject to such statutory restrictions.
III. The Court Has the Power Under Section 909 to Take Additional
Evidence
1103212.2 13
[principle exception to law of the case doctrine is an intervening or
contemporaneous change in the law].) 3
The City cannot deny that this litigation has resulted in a sea change in
the law as the Supreme Court has expressly disapproved of the decision in
Pajaro Valley Water Management Agency v. Amrhein (2007) 150 Cal.App.4th
1364 and held that Proposition 218 does not apply to groundwater pumping
charges. Furthermore, the City acknowledges that this Court’s determination
of the fair or reasonable allocation test now required under article XIII C as
amended by Proposition 26 is being closely watched by public agencies whose
rates will be governed by the same standard. (Opposition, p. 17.) This case
certainly presents exceptional circumstances permitting the Court to exercise
its power under Code of Civil Procedure section 909. For the City to claim
otherwise is without merit.
The fact that the cases relied upon by the District to illustrate the use of
the Court’s power under section 909, In re Conservatorship of the Estate of
Hart (1991) 228 Cal.App.3d 1244, 1259 and Golden West Baseball Co. v. City
of Anaheim (1994) 25 Cal.App.4th 11, do not specifically address agency
ratemaking is of no moment. In Estate of Hart, the Court of Appeal took new
evidence in the interests of justice and reversed the trial court judgment. (228
Cal.App.3d at p. 1259.) In Golden West, the Court exercised its power to
make additional findings under section 909 in a case not involving a jury trial
as a matter of right, and identified the case as presenting “an ideal occasion to
apply it.” (25 Cal.App.4th at p. 42.) The Court utilized its powers under
3
Furthermore, nothing under the law of the case doctrine limits the additional
evidence that a party may introduce after remand to evidence that “`could not
have been presented at the at the first trial through the exercise of due
diligence.’” (People v. Barragan (204) 32 Cal.4th 236, 247; Investors Equity
Life Holding Company v. Schmidt (2015) 233 Cal.App.4th 1363, 1377.)
1103212.2 14
section 909 “to avoid protracted post-appeal litigation” in a case where
millions of dollars in litigation expenses had been incurred to finally resolve
the case, after concluding that “remand for further findings by the trial court
would undoubtedly foster another appeal.” (Ibid.)
The Court’s use of its limited power under section 909 in this case will
serve the interests of justice by validating as constitutional the District’s
groundwater pumping charges where the evidence warrants such a finding by
this Court and when doing so will obviate further proceedings on remand and
appeal and finally resolve this expensive litigation.
The Supreme Court has long ago authorized use of section 909 where
the new evidence compels a reversal with directions to enter judgment for the
appellant. (Tupman v. Haberkern (1929) 208 Cal. 256, 269.) That is exactly
the result which should obtain here if the Court takes the additional evidence.
In its Opposition, the City takes exception to this Court reviewing for
sufficiency of the District’s evidence only the twelve (12) documents from the
District’s 2013-2014 ratemaking proceedings that are the subject of the
District’s Request for Judicial Notice and Motion to Take New Evidence. The
City urges, in the alternative to its argument that no extra-record evidence can
1103212.2 15
be considered, that the Court should consider the entirety of the District’s
2013-2014 administrative record as a matter of fairness. (Opposition, pp. 19-
21.)
Because the groundwater pumping rates adopted by the District for the
2013-2014 water year are identical to the 2012-2013 rates at issue here, the
District is fully amenable to the City’s proposal that the Court consider the
entire 2013-2014 administrative record, in order to facilitate a fair and final
resolution of the remaining article XIII C constitutional issue before the Court
on remand. To that end, the District is submitting, concurrently with this
Reply, a second request for judicial notice and a flash drive of the Certified
2013-2014 AR (“AR3”), consisting of 285 exhibits.
Despite the City’s protests to the contrary, the District again confirms
that much of the newly submitted AR3 is duplicative of the combined AR1
and AR2 here for the two prior water years. Specifically, the District agrees
with the City that 175 of the documents from AR3 are also part of the
ratemaking administrative records for 2011-2012 and 2012-2013.
(Opposition, p. 15.) Moreover, from the non-duplicative 100 documents of
AR3, the District continues to submit that both parties’ most salient evidence
on the remanded issue of the fair or reasonable relationship of the District’s
pumping charges to the City’s burdens on or benefits from the District’s
activities, has been part of the judicial record in this matter since 2013 and
2014, as set forth more fully in the District’s instant Motion and Request at
pages 8-11, and summarized as follows:
1103212.2 16
Motion. (JAE 002282-2393) Denied by the trial court on July
23, 2013. (JAE 002505.)
• City Supplemental Request for Judicial Notice, filed in the trial
court on July 9, 2013, of five (5) additional AR3 documents,
including three letters dated June 11, 13, and 21, 2013, stating
the City and its counsel’s opposition to the District’s proposed
rates. (JAE 002434- 002470.) Denied by the trial court on July
23, 2013. (JAE 002505.)
• City Request for Judicial Notice, filed in the Court of Appeal on
February 6, 2014, including, inter alia, counsel for the City’s
September 30, 2013 letter detailing the City’s objections to the
District continuing in the 2013-2014 water year “the rates
invalidated by the judgment that is the subject of this appeal”
and the District’s October 2, 2013 resolution adopting those
same pumping rates for 2013-2014. Granted by the Court of
Appeal on February 27, 2014. Although the City described
these two (2) AR3 records as relevant because they demonstrate
that the issues in this case remained alive after entry of the trial
court’s judgment, this Court did not limit its admission of these
documents on that or any other basis.
• District Request for Judicial Notice, filed in the Court of Appeal
on April 1, 2014, for the same AR3 evidence, Exhibits A-L, that
is the subject of this Request and Motion. Denied by the Court
of Appeal on March 17, 2015, concurrent with the issuance of
the Court’s opinion.
• City Opposition to District’s Request for Judicial Notice,
Declarations of Holly O. Whatley and David J. Ruderman, and
approximately 140 pages of AR3 records, identified as Exhibits
1-7, filed in the Court of Appeal on April 17, 2014, but
1103212.2 17
including, inter alia, City letters attaching the City’s consultant
reports challenging the District’s 2013-2014 rate-making.
Based on the substantial overlap of the AR1, AR2 and AR3 administrative
records, and on the volume of the non-duplicative AR3 records that were
previously submitted in this case in 2013 or 2014 to the trial or appellate court
by the District or the City, this judicial record has long contained the very
extra-record evidence, on both sides, at issue here. The District wishes for the
Court to recognize officially the additional evidence to the extent that it may
be necessary for the Court’s decision-making on remand. Should it deem it
necessary, the Court now also has the total universe of potential extra-record
evidence on the District’s concurrently submitted flash drive.
V. Conclusion
For all the foregoing reasons, the District respectfully submits that good
cause has been demonstrated and its Request for Judicial Notice and Motion to
Take New Evidence on Appeal and its concurrently filed Second Request for
Judicial Notice should also be granted.
By:
Jane Ellison Usher
Cheryl A. Orr
Attorneys for Appellants and Cross-
Respondents UNITED WATER
CONSERVATION DISTRICT and
BOARD OF DIRECTORS OF UNITED
WATER CONSERVATION DISTRICT
1103212.2 18
[Service on Attorney General
required by Rule 8.29(c)(1)]
2ND Civil No.
[Exempt From Filing Fee
B251810 Government Code § 6103]
Musick, Peeler & Garrett LLP Musick, Peeler & Garrett LLP
Jane Ellison Usher (SBN 93783) William H. Hair (SBN 30134)
Cheryl A. Orr (SBN 132379) 2801 Townsgate Road, Suite 200
624 S. Grand Avenue, #2000 Westlake Village, CA 91361
Los Angeles, CA 90017 Telephone: (805) 418-3100
Telephone: (213) 629-7600 Facsimile: (805) 418-3101
Facsimile: (213) 624-1376
Page
1103011.1 2
TABLE OF AUTHORITIES
Page(s)
Cases
Evans v. City of Berkeley
(2006) 38 Cal.4th 1 .......................................................................... 6
Rodas v. Spiegel
(2001) 87 Cal.App.4th 513 .............................................................. 6
Statutes
Code of Civil Procedure § 187 ............................................................. 5
Code of Civil Procedure § 909 ......................................................... 4, 5
Other Authorities
California Rules of Court, Rule 8.252 .................................................. 4
1103011.1 3
Pursuant to California Rules of Court, Rule 8.252, Evidence Code
section 452, subds. (b) and (c). Evidence Code section 459, and Code of
Civil Procedure sections 187 and 909, Appellants and Cross-
Respondents United Water Conservation District and Board of Directors
of United Water Conservation District (collectively, the “District”)
request that this Court take judicial notice of the documents submitted on
flash drive concurrently herewith and identified as Exhibit M to the
Declaration of Mauricio E. Guardado, Jr., and take this new evidence on
appeal:
By:
William H. Hair
Attorneys for Appellants and Cross-
Respondents UNITED WATER
CONSERVATION DISTRICT and
BOARD OF DIRECTORS OF
UNITED WATER
CONSERVATION DISTRICT
1103011,1 4
MEMORANDUM OF POINTS AND AUTHORITIES
The District submits that this Court may and should take judicial
notice of the additional evidence offered by the District and accept the
additional evidence on appeal pursuant to Code of Civil Procedure
sections 187 and 909 in the interests of justice and fairness.
1103011.1 5
groundwater rate hearings and, as such, are proper subjects of judicial
notice. Each document represents part of the record of the official
proceedings before the administrative agency and part of the legislative
history of the resolutions adopting and re-affirming the groundwater
rates for the 2013-2014 fiscal year, which are proper subjects of judicial
notice. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 7, fn. 2; Rodas v.
Spiegel (2001) 87 Cal.App.4th 513, 518 [City manager’s memorandum
to city council recommending adoption of council resolution is part of
legislative history]; Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.)
1103011.1 6
charges for water years 2011-2012 and 2012-2013 is fair or reasonable,
reflecting the different burdens imposed by municipal pumpers of
groundwater, like the City, on the District’s regulatory activities, as
compared to agricultural pumpers of groundwater, and that municipal
users, like the City, receive substantial additional benefits from the
District’s activities that agricultural users do not require.
III. CONCLUSION
The District respectfully requests that this Court grant the
District’s Request for Judicial Notice and Motion to Take New Evidence
on Appeal of the Certified 2013-2014 AR identified as Exhibit M and
authenticated by the Declaration of Mauricio E. Guardado, Jr., and
consider these additional documents in support of the District’s
arguments on remand.
By:
William H. Hair
Attorneys for Appellants and Cross-
Respondents UNITED WATER
CONSERVATION DISTRICT and
BOARD OF DIRECTORS OF
UNITED WATER
CONSERVATION DISTRICT
1103011.1 7
[PROPOSED]
ORDER TAKING JUDICIAL NOTICE OF DOCUMENTS
AND TAKING NEW EVIDENCE ON APPEAL
1103011.1 8
DECLARATION OF MAURICIO E. GUARDADO, JR.
1103011.1 9
Service on Attorney General
required by Rule 8.29( c)( I)
No.B251810 Exempt from Filing Fees
Government Code § 6103
In the Court of Appeal, State of California
vs.
!93905.5
TABLE OF CONTENTS
I'
I
2
193905.5
TABLE OF AUTHORITIES
Page(s)
Cases
3
193905.5
San Joaquin Local Agency Formation Com'n v. Superior
Court
(2008) 162 Cal.App.4th 159 ................................................................... 8
California Constitution
Statutes
4
193905.5
Rules
5
. 193905.5
To the Honorable Presiding Justice Gilbert and Associate
Justices of the Court of Appeal:
Rules of Court, rule 8.54( c). As this Court is aware, the City opposes
UWCD's attempts to impermissibly obtain notice of extra-record
6
193905.5
evidence in violation of settled case law, the separation of powers,
II. ARGUMENT
The City has briefed these issues - why the Court may not
documents, repeatedly before this Court, the Supreme Court and the
trial court. The City submits this Opposition to avoid any inference
supplemental letter brief (filed with this Court March 26, 2018), and
(filed with this Court April17, 2014), and the City's Petition for
Rehearing (filed with the Supreme Court December 20, 2017). For
the reasons discussed there, the City urges this Court to deny
7
193905.5
I
UWCD's motion because extra-record evidence may not be II'
considered here.
(Western States Petroleum Assn. v. Superior Court (1995) 9 Cal. 4th 559,
576 (Western States); see also San Joaquin Local Agency Formation
(UWCD Supp. Ltr. Br., p. 20.) Had that Court intended to decide this
Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 277; see also Carlton Santee
Corp. v. Padre Dam Mun. Water Dist. (1981) 120 Cal.App.3d 14, 18-19
[water rate-making is legislation].)
8
193905.5
As certified by UWCD's General Manager, the administrative
records UWCD prepared for each rate-making contain all the
information presented to the Board during its consideration of the
to show its fees are not taxes. (UWCD Supp. Ltr. Br., p. 4.) CAPS
simply quoted an unanalyzed sentence from City of Dublin v. County
of Alameda (1993) 14 Cal.App.4th 264 (Dublin). CAPS did not rely on
any extra-record evidence, other than the legislative history which
· might or might not have been in the agency's record. (CAPS, supra,
79 Cal.App.4th at p. 951, fn. 3.) UWCD's citation is therefore dicta.
earlier work. Fort Mojave noted that allowing such evidence would
10
193905.5
disserve the important public policies Western States advances. It
City of Los Angeles (2010) 182 Cal.App.4th 1396, 1407 ["As a general
rule, [u]nless expressly provided, statutes should not be interpreted
This is the third time that UWCD has sought judicial notice of
repeatedly argued, and as both the trial court and this Court have
held, that evidence is not relevant here. And, while the Districts cites
an exception to Western States for evidence "that could not have been
making hearings. (E.g., RJN & Mot. to Take New Evid. on Appeal,
,·
11
193905.5
Exh. Cat p. 19 ["Staff has evaluated hydrological data from 2010,
2011 and 2012"], Exh. Eat p. 69 [analyzing groundwater use from
1980-2012].)
did not consider this evidence before it adopted the challenged rates
because its staff and consultants did not prepare that evidence for
those hearings - even though they might easily have done so.
12
193905.5
resolution adopting FY 2013-2014 rates. (City's Mot. for Jud. Not.
(filed Feb. 6, 2014) Exhs. D & E.) Because the Court took judicial
notice of these records, UWCD argues, it must also take notice of
UWCD's 12 records related to the FY 2013-2014 rate-making.
2014) pp. 92-93; City's Mot. for Jud. Not (filed Feb. 6, 2014) pp. 3-4.)
13
193905.5
Conversely, UWCD's Request for Judicial Notice seeks to prove the
validity of its rates - a burden it bears under the final unnumbered
14
193905.5
FY 2013-2014 rate-making contains 285 exhibits. (Mot. for Jud. Not.,
the trial court has not yet done at all and on the basis of selected
post-judgment disputes not yet tried with less than all relevant
rule that appellate review is limited to the record before the lower
15
193905.5
court." (LaGrone v. City of Oakland (2011) 202 Cal.App.4th 932, 946,
fn. 6.) A party seeking to adduce evidence on appeal has the burden
to show good cause for not presenting the evidence to the trial court.
(Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd.
(1993) 12 Cal.App.4th 74, 87.) Indeed, UWCD acknowledges this
Court may take new evidence only in "special circumstances."
(RJN & Mot. to Take New Evid. on Appeal, p. 13 [quoting In re
Conservatorship of the Estate of Hart (1991) 228 Cal.App.3d 1244, 1256-
1257].) It cannot, however, demonstrate this narrow exception and
argues it in terms that would allow new evidence to any appellant
who wishes to avoid remand.
UWCD' s sole rationale for new evidence is that it will
facilitate resolution without further remand. (RJN & Mot. to Take
New Evid. on Appeal, p. 14.) This general statement could be true of
any extra-record evidence, and therefore cannot constitute
"exceptional" circumstances. Moreover, even if this Court accepted
UWCD' s new evidence on appeal, this would not necessarily avoid
additional trial-court litigation. The parties' dispute over UWCD's
FY 2014-2015 rates remains to be tried below on the record of that
16
193905.5
UWCD also misrepresents the scope of the inquiry for which
it would offer new evidence. It claims the "only remaining issue ...
is the fair or reasonable allocation inquiry."(RJN & Mot. to Take
New Evid. on Appeal, p. 14.) This is like saying: "only nine months
of the pregnancy remain." The fair or reasonable allocation inquiry
is the heart of this important case interpreting our Constitution that
the entire local government community is watching closely for its
I.
impact not only on groundwater charges (made significant by the
I
adoption of the Sustainable Groundwater Management Act
requiring rate-making by some 400 new groundwater sustainability
agencies), but because it will provide much needed guidance on
other rates subject to Proposition 26.
Moreover, UWCD hides in a footnote that Water Code
section 75594' s constitutionality is also on remand here - an issue
Justice Liu would have decided for the City and predicts the
Supreme Court will, too. Ignoring the constitutionality of
section 75594 risks a further remand if, as may be likely, this case
returns to the Supreme Court.
Nor is the fact-finding this new evidence would require as
simple as UWCD claims. UWCD offers four expert reports, each
17
193905.5
municipal and industrial rates be at least three times agricultural
rates. No trier of fact unencumbered by that statute has yet reviewed
these competing technical reports. Indeed, because the evidence of
cannot show good cause for the unavailability of the evidence in the
trial court, as these documents post-date UWCD's rate-making in
FY 2011-2012 and FY 2012-2013. Indeed, under Western States, extra-
record evidence may only be considered if it existed before the
agency acted, but could not, in the exercise of reasonable diligence,
have been presented before it did so. (Western States, supra, 9 Cal.4th
at p. 578.) UWCD does not address this narrow exception, likely
because it does not apply. The evidence UWCD seeks to present is
from a subsequent rate-making, and is dated after even the second
rate-making at issue here concluded. Indeed, the trial court denied
UWCD's attempt to introduce this same evidence as irrelevant.
(12 JA 105:2505.)
Finally, the authority on which UWCD relies is also
18
193905.5
of justice" concerning an incompetent conservatee. (Id. at p. 1259.) In
Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11
the court did not take new evidence on appeal; it only modified a
19
193905.5
how additional evidence might be admitted and argued, including
the potential for remand to the trial court.
If the Court decides it can resolve the entire case without
case. (RJN & Mot. to Take New Evid. on Appeal, pp. 9-10.) In the
•
rehearing briefing before the Supreme Court, the City maintained
20
193905.5
this position and offered review of the whole (not selected parts) of
not least because the City gained nothing by it - the Supreme Court
neither granted rehearing nor took notice of these materials.
(Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist.
(2003) 106 Cal.App.4th 1219, 1246 [rejecting judicial estoppel where
court did not adopt position].) Thus, UWCD mischaracterizes the
City's position and the law of judicial estoppel to seek an unfair
advantage. This case involves constitutional issues of statewide
importance and should not turn on such gamesmanship.
This Court accordingly ought not to re-open the records here.
If it nevertheless does so, it should allow the parties equal
21
193905.5
The City therefore respectfully urges this Court to deny UWCD's
.l)q~ r?v~
MICHAEL G. COLANTUONO
DAVID J. RUDERMAN
LILIANE M. WYCKOFF
Attorneys for Respondent and Cross-
Appellant
,.
CITY OF SAN BUENAVENTURA
22
193905.5
PROOF OF SERVICE
24
193905.5
SERVICE LIST
City of San Buenaventura v. United Water Conservation District, eta!.
Supreme Court Case No. S226036
Court of Appeal, Second Appellate District, Div. 6, Case No. B251810
Santa Barbara Superior Court Case Nos. VENCI 00401714 & 1414739
Courtesy Copy
Via Email Through TrueFiling
Miles P. Hogan
Assistant City Attorney
City of Ventura
501 Poli Street, Room 213
P.O. Box 99
Ventura, CA 93001
Phone: (805) 654-7818
Fax: (805) 641-0253
Email: mhogan@cityofventura.ca.gov
Attorneys for Appellant City of San
Buenaventura
25
193905.5
Via U.S. Mail Via U.S. Mail
Alan Diamond Stanly Tokio Yamamoto
Greines Martin Stein & Richland Office of District Counsel
5900 Wilshire Blvd., 12th Floor 5750 Almaden Expressway
Los Angeles, CA 90036 San Jose, CA 95118
Attorneys for Santa Clara Valley Attorneys for Santa Clara Valley Water
Water District, Amicus Curiae District, Amicus Curiae
26
193905.5
I
II
i
27
193905.5
Via U.S. Mail Via U.S. Mail
David M. Axelrad Office of the Attorney General
Mitchell C. Tilner 1300 I Street
Horvitz & Levy, LLP Sacramento, CA 95814-2919
3601 West Olive Avenue, 8th Flr.
Burbank, CA 91505-4681
Attorneys for Water Replenishment
District of Southern California,
Amicus Curiae
28
193905.5
Service on Attorney General
No.B251810 required by Rule 8.29(c)(l)
Exempt from Filing Fees
Government Code § 61 03
vs.
194100.2
To the Honorable Presiding Justice and Associate Justices of
the Court of Appeal of the State of California for the Second
Appellate District, Division 6:
2
194100.2
(collectively, "UWCD" or the "District") Motion to Take New
MICHAEL G. COLANTUONO
DAVID J. RUDERMAN
LILIANE M. WYCKOFF
Attorneys for Respondent and Cross-
Appellant
CITY OF SAN BUENAVENTURA
3
194100.2
MEMORANDUM
I. GENERAL PRINCIPLES OF jUDICIAL NOTICE
4
194100.2
II. EXHIBITS I AND 2 ARE NOTICEABLE AND RELEVANT
misrepresented the size and scope of the record for the 2013-2014
rate-making in the City's separate suit challenging the FY 2013-2014
and FY 2014-2015 rates. Indeed, the City was forced to move to
I
augment those records with material UWCD improperly omitted,
including the City's requests for reconsideration. These documents
provide important context to UWCD's Motion to Take New
Evidence on Appeal.
5
194100.2
Both documents are therefore relevant to the issues raised in
the City's Opposition to the Motion to Take New Evidence on
Appeal, and they should be noticed in consideration of that brief.
Ill. CONCLUSION
MICHAEL G. COLANTUONO
DAVID J. RUDERMAN
LILIANE M. WYCKOFF
Attorneys for Respondent and Cross-
Appellant
CITY OF SAN BUENAVENTURA
6
194100.2
DECLARATION OF DAVID J. RUDERMAN
[Cal. Rules of Court, rule 8.54(a)(2)]
the January 27, 2015 hearing. In this Tentative Ruling, Judge Anderle
provisionally granted the City's motion to augment in part because
the material submitted by the City was relevant information before
7
194100.2
UWCD's Board when it adopted the rates or was relevant to the
DAVID J. RUDERMAN
I
I
8
194100.2
[Proposed]
ORDER TAKING JUDICIAL NOTICE
Good cause appearing, IT IS HEREBY ORDERED that
and
9
194100.2
EXHIBIT NO. I
IExempt From Filing Fee
Government Code§ 6103!
22
Trial Date: None Set
23
24 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:
25 PLEASE TAKE NOTICE THAT the undersigned, E. Michael Solomon, General Manager
26 of United Water Conservation District, hereby certifies that the documents identified in the i.
27 attached Administrative Record lndeK, consisting of twenty-one (21} printed Volumes containing
28 Exhibits l-285 and included on four(4) compact discs, constitute Defendants and Respondents
931472.1
CERTIFICATION OF THE 2013-2014 ADMINISTRATIVE RECORD BY E. MICHAEL SOLOMO"!,
GENERAL MANAGER OF UNITED WATER CONSERVATION DISTRIC 1
I United Water Conservation District's full, true and correct Administrative Record for the 2013·
2 2014 Water Year relating to Santa Barbara County Superior Court Case No. 1467531. The
3 exhibits contained in the CO's are as follows:
4 CDI ~ AR3-Ex. OJ -Ex. 44
5 C02 - AR3-E.'(. 45 -Ex. 106
6 CD3 - ARJ- Ex. I07 - Ex. I58
7 CD4-AR3·Ex.159-Ex.285
8 The Administrative Record was prepared by the District in consultation with Plaintiff and
9 Petitioner, and pursuant to California Code of Civil Procedure §I 094.5.
10 At the request of Plaintiff and Petitioner, the District is submitting an electronic copy of
11 the Administrative Record to Plaintiff and Petitioner, in lieu of printed volumes.
12 I declare that I am employed in the County ofVentura, California; that I am over 18 years
13 of age, and that I am employed as the Geneml Manager of United Water Conservation District. I
14 am duly authorized to certify the completeness of the Administrative Record In this action.
15 I declare under penalty of peJjury under the laws of the State of California that the
16 foregoing is true and correct and that this certification was executed at Santa Paula, California on
17 this J!l. day of February, 2015.
18
I !I
20
21
22
23
24
25
26
27
28
'1U51CJt. PEJILBR 931lnl
&CARRinTLLP
ATRIIHI.UATU.
CERTIFICATION OF THE 1013-2014 ADMINISTRATIVE RECORD BY E. MICHAELSOLOMO!!.
GENERAL MANAGER OF UNITED WATER CONSERVATION DISTRI!.'J
l
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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26 Exhibit A
27
28
MUSICK, PEELER 9314741
& GARRETT LLP
CERTIFICATION OF THE 2014-2015 ADMINISTRATIVE RECORD BY E. MICHAEL SOI..OMON,
ATTORNtllATU.W
GENERAL MANAGER OF UNITED WATER CONSERVATION DISTRICT
[Exempt From Filing Fcc
Government Code§ 61031
13
14 CITY OF SAN BUENA VENTURA, CASE No. 1467531
Unlimited Jurisdiction
15 Plaintiff and Petitioner,
[Assigned to Hon. Thomas P. Anderle,
16 v. Dept. 03]
17 UNITED WATER CONSERVATION Action Filed: March 24, 2014
DISTRICT; BOARD OF DIRECTORS OF
18 UNITED WATER CONSERVATION ADMINISTRATIVE RECORD INDEX
DISTRICT; ALL PERSONS fNTERESTED FOR JUNE 12,2013 AND OCTOBER 2,
19 fN THE VALIDITY OF THE RATES 2013 PUBLIC HEARINGS ON DISTRICT
ADOPTED BY THE UNITED WATER GROUNDWATER CONDITIONS: 2013-
20 CONSERVATION DISTRICT ON JUNE 13, 2014 WATER YEAR I
2012 TO BE EFFECTIVE JULY I, 20 12; and I
21 DOES 1-10, i
28
9230)8,1
ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
EXHIBITS
2 xhibit No: Document: (All documents stamped "AR3" before exhibit number)
3 1. Water Conservation District Law of 1931 (Division 21 of California Water
Code, Section 74000 !e! ~.)
4
5 2. Resume of Steven B. Bachman, Ph.D- Groundwater Policy Manager
5 18. Surface-Water Releases for Ground-Water Recharge, Santa Clara River, Ventura
County, California (J.N. Densmore, O.K. Middleton and J.A. lzbicki, June 1991)
6
7 19. Chloride Sources in a California Coastal Aquifer (John A. lzbicki, July 1991)
28
MUSICK, PEELER 923038.1 2
& GARRETT l.L.P
ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
/lrTOJIN£\'li'ATl.\W'
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 30. Conjunctive Use Alternati1•es for Overdraft Reduction in the Oxnard Plain and
Pleasant Valley/ Results ofNovember 1998 Groundwater Modeling (Steven
3 Baclunan Ph.D. and Ken Turner, United Water Conservation District}
4
31. Nitrate Observations in the Oxnard Forebayand Vicinity, 1995-2006 (Daniel
5 petmer, United Water Conservation District2008)
26 40. !Frequently Asked Questions About Ventura County Farming, Fann Bureau of I
~entura County Website, June 2012
27
28
MUSICK. PEELER 923038 I 3
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ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
ATtORNEYSATV.W
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
!Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 41. Mugu Seawater/Saline Monitoring Program, Report to California Department of
Water Resources, United Water Conservation District (April2007)
3
4 42. Chloride in the Pi111 Basin, United Water Conservation District (Steven Bachman
and Daniel Detmer, Apri12006)
5
43. Coastal Saline Intrusion Report, United Water Conservation District, (Oxnard
6 Plain Ventura County, California, August 2004)
7
44. nland Saline Intrusion Assessment Project Report submitted to the California
8 Department of Water Resources, United Water Conservation District and City of
Oxnard (June 2003)
9
45. Oxnard Plain Time Domain Electromagnetic Study for Saline Intrusion, United
10
Water Conservation District Open-File Report 2010-003, United Water
II Conservation District (2010)
12 46. High Resolution Seismic Reflection Survey ofthe Oxnard Plain Basin, United
Water Conservation District Open-File Report 2011-004, United Water
13 Conservation District (2011)
14
47. Draft 2011 Piru/Fillmore Basins AB 3030 Groundwater Management Plan,
15 Piru/Fillmore Groundwater Management Council (20 II)
16 48. Saticoy Recharge Mound Study (United Water Conservation District, Open File
Report 2010-001, dated March 2010)
17
18 49. Santa Paula Creek Recharge Study (AECOM, September 2010)
19 50. Groundwater and Surfoce Water Conditions Report- 2011 (United Water
Conservation District, OFR 2012-02, May 20 12)
20
21 51. History ofthe Zone C Seltlement Agreement and Discussion ofGroundwater
'Fievation Records In and Around this Zone (United Water Conservation District,
22 becember 201 0) and transmittal email delivering document from Tony Morgan to
City of Ventura
23
24 52. Hydrogeological Assessment ofthe Mound Basin (United Water Conservation
pistrict, OFR 2012-01, May 2012)
25
53. Final Report, 2011 Water Rate Study, United Water Conservation District (adopted
26 by the Board of Directors May 18, 2011)
27
54. fllay 31, 2012 Update Memorandum to 2011 Rate Study, United Water
28 f'onservation District, (approved by Board of Directors June II, 20 12)
MUSICK, rEELER 923038.1 4
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ADMINISTRA TIYE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
ATrOHNE)'SATLAW
ON DISTRICf GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
Exhibit No: !Document: (All documents stamped "AR3" before exhibit number)
2 55. IPiru and Fillmore Basins Groundwater Conditions Report, Water Year 2000
United Water Conservation District Groundwater Resources Department, Steven
3 !B. Bachman, Ph.D. and Peter Dal Pozzo, August 2001)
4
56. !Pint and Fillmore Basins Groundwater Conditions Report, Water Year 2003
5 klJnited Water Conservation District Groundwater Resources Department, Steven
Bachman, Ph.D. and Peter Da1 Pozzo, December 2004)
6
57. 12007 Piru and Fillmore Basins Annual Groundwater Conditions Report (United
7
Water Conservation District Groundwater Resources Department, Steven
8 ~achman, Ph.D. and Peter Dal Pozzo, March 2009)
9 58. Draft) 2008 Piru and Fillmore Basins Annual Groundwater Conditions Report
(United Water Conservation District Groundwater Resources Department, Steven
10 l3achman, Ph.D. and Peter Dal Pozzo, August 2009)
11
59. ~009 Piru and Fillmore Basins Annual Groundwater Conditions Report (United
12 ~ater Conservation District GroWldwater Resources Department,Steven
l3achman, Ph.D. and Peter Dal Pozzo, September 2010)
13
14 60. Santa Paula Basin 1996 Annual Report (United Water Conservation District,
. Groundwater Resources Department, October 1997)
15
61. Santa Paula Basin 2000 Annual Report (United Water Conservation District
16 Groundwater Resources Department, August 2001)
17
62. ~an/a Paula Basin 2003 Annual Report (United Water Conservation District
18 Groundwater Resources Department, November 2004)
19 63. Santa Paula Basin 2005 Annual Report (United Water Conservation District
GroWldwater Resources Department, November 2006)
20
21 64. Santa Paula Basin 2007 Annual Report (United Water Conservation District
GroWldwater Resources Department, September 2008)
22
65. Santa Paula Basin 2008 Annual Report (United Water Conservation District
23 Groundwater Resources Department, August 2009)
24
66. Combined 2009 and 2010 Santa Paula Basin Annual Report (United Water
25 Conservation District Professional Paper 2011-001, Santa Paula Basin Technical
Advisory Committee, October 20 II)
26
27 67. Santa Paula Basin Pumping Trends Effects and Assessment (United Water
Conservation District OFR 201 0-003)
28
MUSICK. PEELER 923038.1 5
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ADMINISTRATIVE RECORD INDEX fOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
ATtORNE'I'SATIAW
ON DISTRICT GROUNDWATER CONDITIONS: 20t3-2014 WATER YEAR
Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 68. Annual Investigation and Report on Groundwater Conditions Within The United
Water Conservation District, 1985-1986 Water Year (United Water Conservation
3 ~istrict, revised March 28, 1986)
4
69. ~nnual Investigation and Report on Groundwater Conditions Within The United
5 Water Conservation District, 1986-1987 Wafer Year (United Water Conservation
District, revised June 3, 1987)
6
70. ~nnual Investigation and Reporf On Groundwater Conditions Within The United
7
Water Conservation District, 1987-1988 Wafer Year (United Water Conservation
8 pistrict, March 8, 1988)
6 79. Annual Investigation and Report ofGrazmdwater Conditions within United Water
Conservation District, a SummaryofFindingsfor the Previous Water Year (1995-
7
96), Current Water Year (1996-97), and Ensuing Water Year (1997-98), (United
8 Water Conservation District Groundwater Department, February 28, 1997)
9 80. Annual Investigation and Report ofGroundwater Conditions within United Water
Conservation District, a Summary ofFindings for the Previous Water Year (I 996-
10 97), Current Water Year (1997-98), and Ensuing Water Year (1998-99), (United
II Water Conservation District Groundwater Department, February 5, 1998)
12 81. ~nnual Investigation and Report ofGroundwater Conditions within United Water
Conservation District, a Summary ofFindings for the Previous Water Year (1997-
13 ~8), Current Water Year (1998-99), and Ensuing Water Year (1999-2000), (United
14 ~ater Conservation District Groundwater Department, March 1999)
15 82. ~nnual Investigation and Report ofGroundwater Conditions within United Water
Conservation District, a Summary ofFindings for the Previous Water Year (I 998-
16 1999), Current Water Year (1999-2000), and Ensuing Water Year (2000-2001),
(United Water Conservation District Groundwater Department, March 2, 2000)
17
18 83. ~nnuallnvestigation and Report a/Groundwater Conditions within United Water
!conservation District, a Summary ofFindings for the Previous Water Year (I 999-
19 ~000), Current Water Year (2000-2001), and Ensuing Water Year (2001-2002), I
United Water Conservation District Groundwater Department, March 7, 2001)
20
I
21 84. ~nnual Investigation and Report ofGroundwater Condillons within United Water
Conservation District, a Summary ofFindings for the Previous Water Year (2000-
22 ~001), Current Water Year (2001-2002), and Ensuing Water Year (2002-2003),
~nited Water Conservation District Groundwater Department, March 4, 2002)
23
24 85. ~nnual Investigation and Report ofGroundwater Conditions within United Water
'f::onservation District, a Summary ofFindings for the Previous Water Year (2001-
25 ~002), Current Water Year (2002-2003), and Ensuing Water Year (2003-2004),
~nited Water Conservation District Groundwater Department, March I, 2003)
26
86. ~nnual Investigation and Report ofGroundwater Conditions within United Water
27
'r;onservationDistrict, a Summary ofFindings for the Previous Water Year (2002-
28 ?003), Current Water Year (2003-2004), and Ensuin!{ Water Year (2004-2005),
MUSICK, PEELER 923038.1
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ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
ATfOIINI'.\'3ATJ..\W
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 United Water Conservation District Groundwater Department, March 5, 2004)
3 i;lnnuallnvestigation and Report ofGroundwater Conditions wilhin United Water
87.
4 Conservation District, a Summary ofFindings for the Previous Water Year (2003-
~004), Current Water Year (2004-2005), and Ensuing Water Year (2005-2006).
5 (united Water Conservation District Groundwater Department, March 6, 2005)
6 88. i;lnnual Investigation and Report ofGroundwater Conditions within United Water
Conservation District, a summary of Findings for the Previous Water Year (2004-
7
12005), Current Water Year (2005-2006) and Ensuing Water Year (2006-2007),
8 United Water Conservation District Groundwater Department, March 1, 2006)
9 89. 'Annual Investigation and Report ofGroundwater Conditions within United Water
Conservation District, a Summary ofFindings for the Previous Water Year (2005-
10 '006). Current Water Year (2006-2007) and Ensuing Water Year (2007-2008),
II (United Water Conservation District Groundwater Department, March 6, 2007)
12 90. 'Annual Investigation and Report ofGrozmdwater Conditions within United Water
Conservation Dislrict, a Summary of Findings for the Previous Water Year (2006-
13 7007), Current Wafer Year (2007-2008) and Ensuing Water Year (2008-2009),
14 (united Water Conservation District GroWJdwater Department, March 5, 2008)
15 91. 'Annual Investigation and Report ofGroundwaler Conditions within Uniled Wafer
Conservation District, a Summary ofFindings for the Previous Wafer Year (2007-
16 17008), Current Water Year (2008-2009) and Ensuing Wafer Year (2009-20IO),
United Water Conservation District GroWJdwater Department, March 2, 2009)
17
18 92. 'Annual Invesligation and Report ofGroundwater Conditions within United Water
Conservation District, a Summary ofFindings for the Previous Water Year (2008-
19 ~009). Current Water Year (2009-2010) and Ensuing Wafer Year (2010-2011).
United Water Conservation District GroWJdwater Department, March 20 I 0)
20
~nnuallnvestigation and Report ofGroundwater Conditions within United Water
I
21 93. I
Conservation Districl, a Summary ofFindings for the Previous Water Year (2009- I
22 bolO), Current Water Year (2010-2011) and Ensuing Water Year (20/1-2012).
(United Water Conservation District GroWJdwater Department, March 20 II)
23
94. ~nnual Investigation and Report ofGrozmdwaler Conditions within United Water
24
Conservation District. a Summary ofFindings for the Previous Water Year (20 10-
25 ~011), Current Water Year (2011-20I 2) and Ensuing Water Year (2012-2013),
!{united Water Conservation District Groundwater Department, March 13, 20 12)
26
95. City of Ventura 2010 Urban Water Management Plan, and June 2, 2011 letter from
27
!united Water Conservation District with comments to Plan
28
MUSICK, PEELER 923038.1 R
& GARRBTI' lJ.P
ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
ATIOI\Nm'SATLA\f
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
I Exhibit No: !Document: (All docuincnls stamped "AR3" before exhibit number)
2 96. ~emi-Annual Groundwater Production Statements from the City of Ventura (July
I, 2010 through December 31, 2012}
3
4 97. United Water Conservation District Resolution No. 2011-08, Authorizing a Rate
ncrease to the District's General Fund Groundwater Extraction/Replenishment
5 Charges, adopted June 8, 20 II
6 98. ).Jnited Water Conservation District Resolution No. 2011-09, Approving Overhead
f41!ocation Rates for Fiscal Year 2011-12, adopted June 8, 20 II
7
8 99. United Water Conservation District Resolution No. 2011-10, Adopting the
Proposed Fiscal Year 2011-2012 Budget and Authorizing Expenditures Pursuant
9 thereto and Authorizing Fiscal Year 20 I 0-2011 Appropriation Carryovers
(Encumbrances) and Approval of Financial Policies and Authorizing the
10 Preparation of the Final Budget, adopted June 8, 2011
11
100. United Water Conservation District Resolution No. 2011-11, Making Findings and
12 Determinations from the Evidence Submitted at the Annual Hearing on the
Groundwater Conditions of United Water Conservation District, adopted June 8,
13 2011
14
101. United Water Conservation District Resolution No. 2011-12, Making Additional
15 Findings and Determinations from the Evidence Submitted at the Annual Hearings
on the Groundwater Conditions of United Water Conservation District,
16 Determining and Establishing Groundwater Extraction Charge Zones and Levying,
f4ssessing and Fixing Groundwater Extraction Charges Against All Persons
17
Operating Groundwater Producing Facilities within Such Zones, adopted June 8,
18 ~011
19 102. n the Matter of United Water Conservation District Public Hearing For
Groundwater Conditions, Transcript of Proceedings, June 8, 2011 plus Exhibit A
20 ~ereto
21
103. ~pril26, 2012 Notice of Public Hearing [Subject: Proposed Increase to the
22 pistrict's Zone A Water Conservation Fund Groundwater Extraction Charge]
23 Notices of Public Hearing- Board of Directors of United Water Conservation
104.
24 Pistrict beginning April II, 2012, continued until May 16, 2012, and again to June
13,2012 (Chapter 3 of Part 9 of Division 21 of the Water Code, Section 75560 ~
25 ~-)[Certificates of Publication- March 27, 2012; May 4, 2012; May 25, 2012]
26 105. May 31, 2012 United Water Conservation District Special Board Meeting
Newspaper Notice
27
28
MUSICK_ PEELER 923038.1
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ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
I
I
Exhibit No: Document: (All documents stamped "AR3'' before exhibit number) I
I
2 106. [May I, 2012) United Water Conservation District Proposed Annual Budget Fiscal
Year 201212013, for adoption on June 13,2012
3
4 107. ~alifomia Legislature-Legislative History Materials Relating To Water Code
Section 75594, including Chapter 1414, Statutes of I 963 (SB 864); Chapter 75,
5 Statutes of 1965 (AB 667); and Chapter 718, Statutes of 1984 (AB 3239)
9 110. A Map of the boundaries of United Water Conservation District and groundwater
basins within the District [Figure 1-I of Groundwater and Swface Water
10 Conditions Report " 20 II) I
I
I1
III. Map - UWCD Groundwater Finance Zones (UWCD Proposed Annual Budget
12 Fiscal Year 20 I212013, p. I07)
13 Map - UWCD Boundaries and Facilities (UWCD Proposed Annual Budget Fiscal \'
112.
14 Year201212013, p. 101)
I
15 113. Map- UWCD Basins- Generalized Conceptual Groundwater Flow Paths [Figure
16
J-3, Hydrogeologic Assessment of the Mound Basin) OFR 2012-01, May 2012, p. I
42)
17
114. Ad Valorem I Property Tax Parcels Map- District-wide (June 5, 2013)
18
115. Ad Valorem I Property Tax Parcels Map-City of Ventura (June 4, 2013)
19
116. Staff Report, Item 7.2, Public Hearing- Opening of Annual Groundwater Hearing
20
o Accept Public Comment on Groundwater Conditions within the District, United
21 Water Conservation District Regular Board Meeting, April! I, 2012
22 117. Slide Presentation, Item 7.2, Public Hearing- Opening of Annual Groundwater
Hearing to Accept Public Comment on Groundwater Conditions within the District,
23 United Water Conservation District Regular Board Meeting, April 11, 2012
24
118. AECOM, City ofSan Buenaventura, GroundwaTer TreaTmenT Study (March 7,
25 201 I)
26 119. Staff Report, Item 2.4, Consideration ofFY 2012-13 Proposed Water Conservation
27 Fund Groundwater Extraction Charge and Related Items, United Water
Conservation District Special Board Meeting, April IS, 2012
28
MUSICK, PEELER 9230381 10
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ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
ATtORNJ::VSATJ.AW
ON mSTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 120. Slide Presentation, Item 2.4, Consideration ofFY 2012-13 Proposed Water
Conservation Fund Groundwater Extraction Charge and Related Items, United
3 Water Conservation District Special Board Meeting, April 18, 2012
4
12 I. ~ydroMetrics Water Resources, Inc., Technical Memorandum, Lower San/a Clara
5 ~iver Sail & Nu!rienl Plan, Drqft Assimilalive Capacily for TAG Review (April 10,
~014).
6
122. Staff Report, Item 2.7, Resolution No. 2012-04, Setting Forth Procedures for
7
f'\scertaining Whether a "Majority Protest" Exists Concerning the Proposed
8 mposition of a New Groundwater Charge or Increase in a Current Groundwater
~barge, United Water Conservation District Regular Board Meeting, May 16, 2012
9
123. United Water Conservation District, Uniled Wafer Conservalion Dis/riel Oxnard-
10 lftueneme Wafer Delivery System, 2013 Consumer Confidence Report (Apr. 2014).
11 tJ'his report is available on-line at UWCD's website at:
[http://unitedwater.org/images/storieslreport/Water-
12 Quality/20 13%20Consumer%20Confidence%20Report.pdf.
13 124. ~esolution No. 2012-04, adopted by United Water Conservation District Board of
14 pirectors, May 16, 2012
15 125. Staff Report, Item 5.3, Proposed FY 2012-13 Budget, United Water Conservation
pistrict Regular Board Meeting, May 16, 2012
16
126. Slide Presentation, Item 5.3, Review of Proposed FY 2012-13 Budget and Budget
17
!Preparation Process, United Water Conservation District Regular Board Meeting,
18 1vtay 16,2012
19 127. rrranscript of Remarks, Item 5.3, Review of Proposed FY 20 !2-13 Budget and
!Budget Preparation Process, United Water Conservation District Regular Board
20 Meeting, May 16,2012
21
128. !Board Letter (dated May 14, 20!2), Item 5.3, Proposed FY 2012-13 Budget
22 ["UWCD Budget Process"], United Water Conservation District Regular Board
Meeting, May 16, 2012
23
24 129. Summary Details Notebook, Item 5.3, Review of Proposed FY 20!2-13 Budget
""d Budget Preparation Process, United Water Conservation District, Regular
25 !Board Meeting, May 16, 2012
19 140. Slide Presentation, Item 1.6, Budget Workshop, United Water Conservation
District Special Board Meeting, May 31, 2012
20
21 141. Staff Report, Item 5.3, Resolution No. 2012-07, Authorizing A Rate Increase In
f.one A Water Conservation Fund Groundwater Extraction Charge Rate, United
22 Water Conservation District, Regular Board Meeting, June 13,2012
23 United Water Conservation District Resolution No. 2012-07, Authorizing a Rate
142.
24 ncrease to the District's Zone A Conservation Fund Groundwater Extraction
pharge, June 13,2012
25
143. Staff Report, Item 5.4, Resolution No. 2012-08, Adoption ofFY 2012-13 Overhead
26 Allocation Rates, United Water Conservation District, Regular Board Meeting,
27 une 13, 2012
28
MUSICK, PEELER 9230381
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ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
lllTORNEYSATLAW
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 144. United Water Conservation District Resolution No. 2012-08, Approving Overhead
Allocation Rates for Fiscal Year 2012-1 3
3
4 145. Staff Report, Item 5.5, Resolution No. 2012-09, Adoption of FY 2012-13 District
Budget, AuthorizationofFY 2011-12 Appropriation Carryovers/Approval of
5 District Financial Policies, United Water Conservation District Regular Board
!Meeting, June 13, 2012
6
146. ltJnited Water Conservation District Resolution No. 2012-09, Adopting the
7
!Proposed Fiscal Year2012-13 Budget and Authorizing Expenditures Pursuant
8 ~ereto and Authorizing Fiscal Year 2011-12 Appropriation Carryovers
~Encumbrances) and Approval of Financial Policies and Authorizing the
9 !Preparation of the Final Budget, June 13,2012
10 Staff Report, Item 7.3, Conclusion of Annual Groundwater Hearing and Setting of
147.
II IFY 2012-!3 Zones and Extraction Charges, United Water Conservation District,
~egular Board Meeting, June 13,2012
12
148. ltJnited Water Conservation District Resolution No. 2012-10, Making Findings and
13 !Determinations from the Evidence Submitted at the Annual Hearing on the
14 Groundwater Conditions of United Water Conservation District, June 13, 2012
15 149. ltJnited Water Conservation District Resolution No. 2012-11, Making Additional
!Findings and Determinations from the Evidence Submitted at the Annual Hearings
16 pn the Groundwater Conditions of United Water Conservation District,
petermining and Establishing Groundwater Extraction Charge Zones and Levying,
17 [Assessing and Fixing Groundwater Extraction Charges Against All Persons
18 Operating Groundwater Producing Facilities within Such Zones, June 13, 2012
6 157. Stipulation for Judgment, City ofSan Buenavenlllra v. United Water Conservation
District, Ventura County Superior Court Case No. CV 80771, December 16, 1988
7
8 158. City of San Buenaventura's Petition for Writ of Mandate; City ofSan
Buenaventura v. United Water Conservation District, etc., eta/., Santa Barbara
9 County Superior Court Case No. 56-2011-0040 1714-CU-WM-VTA
10 United Water Conservation District's Answer to Petition for Writ of Mandate; City
159.
11 ifSan Buenaventura v. United Water Conservation District, etc., et al., Santa
Barbara County Superior Court Case No. 56-2011-00401714-CU-WM-VTA
12
160. [United Water Conservation District Cross-Complaint for Declaratory Relief; City
13 rfSan Buenaventura v. United Water Conservation District, etc., et at., Santa
14 !Barbara County Superior Court Case No. 56-2011-0040171 4-CU-WM-VTA
19 164. [United Water Conservation District's response to the City of San Buenaventura's
etter submissions dated June 12, 2012
20
21 165. pty of San Buenaventura letter submissions (protest) dated June 12,2012
6 180. April30, 2013 Santa Barbara Superior Court Notice of Ruling/Ruling on Phase 2
Trlal in City ofSan Buenaventura v. United Water Conservation District etc., et
7
a/, Santa Barbara Superior Court Case No. 56·2011-00401714, and Related Case
8 No; 1414739 (Ventura County Superior Court Case No. 56-2012-00422218-CU-
WM-VTA)
9
181. City of San Buenaventura Ordinance No. 95-53, Save Our Agricultural
10 Resources (SOAR) Ordinance
II
182. Percolation ofSanta Clara River Flow Within The Santa Paula Basin (United
12 Water Conservation District, Open-File Report 2013-0 I, February 20 13)
13 183. Santa Paula Creek Percolation: An Update (United Water Conservation District,
14 Open-File Report No. 2013-02, February 2013)
15 184. Santa Paula Basin Groundwater Elevation Trend Assessment (United Water
Conservation District, Open-File Report No. 2013-03, February 2013)
16
185. Farm Bureau of Ventura County, May 2013 Newsletter, Notes From The CEO
17
18 186. Draft 2013 Comprehensive Water Resources Report, prepared for the City of
Ventura by RBF Consulting, together with March 4, 2013 Administrative Report
19 o City Council, Council Agenda and Council Minutes
20
187. [RESERVED]
21
188. United Water Conservation District, Adopted Annual Budget Fiscal Year
22 ~012/2013
23 ~nited Water Conservation District, Proposed Annual Budget Fiscal Year
189.
24 ~013/2014
28
MUSICK, PEELER 923038 I ln
&. GARRETT LLP
ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
Al'JORN'E\'SATUW
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 191. Staff Report, Item 7.5, Public Hearing-Opening of Annual Groundwater
Hearing to Accept Public Comments on Groundwater Conditions Within the
3 District, United Water Conservation District Regular Board Meeting, April I 0,
4
2013
16 197. Staff Report, Item 2.8, Receive The Proposed FY 2013-14 Budget and Set
Budget Workshop Date, United Water Conservation District Regular Board
17
Meeting, May 15,2013 plus slide presentation
18
198. Slide Presentation, Item 1.2, FY 2013-14 Proposed Budget Workshop, United
19 Water Conservation District, Special Board Meeting, June 4, 2013
20 Audio Tape Transcript of Staff Presentation on Item 1.2, FY 2013-14 Proposed
199. i
21 Budget Workshop, United Water Conservation District, Special Board Meeting,
une 4, 2013
22
200. Summary Details Notebook ("Black Binder"), Item 1.2, FY 2013-14 Proposed
23 Budget Workshop, United Water Conservation District, Special Board Meeting,
24 une 4, 2013
25 201. Revisions to Proposed Budget, distributed to Board of Directors during Item 1.2,
FY 2013-14 Proposed Budget Workshop, United Water Conservation District,
26 Special Board Meeting, June 4, 2013
27
202. Notice(s) of Public Hearing-Board of Directors of United Water Conservation
28 District beginningApri110, 2013, continued until May 15,2013, and again to
MUSICK, PEBLER 923038.1
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ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
ATtORNJ>VSATf..''IF
ON DISTRICT GROUNDWATER CONDITIONS: 2013·2014 WATER YEAR
E:xhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 ~uneI 2, 2013 (Chapter 3 of Part 9 of Division 21 of the Water Code, Section
75560 ~~[Certificates of Publication-March 25, 2013: April 26, 2013:
3 ~ay 23, 2013]
4
203. Staff Report, Item 5.3, Resolution No. 2013-04, Adoption ofFY 20!3-14
5 Overhead Allocation Rates, United Water Conservation District, Regular Board
~eeting, June 12, 2013
6
204. llfnited Water Conservation District Resolution No. 2013-04, A Resolution of the
7
~oard of Directors of United Water Conservation District Approving Overhead
8 Allocation Rates for Fiscal Year 2013, June 12,2013
9 205. Staff Report, Item 5.4, Resolution No. 2013-05, Adoption ofFY 2013-14
pistrict Budget, Authorization ofFY 2012-13 Appropriation
10 ~arryovers/Approval of District Financial Policies, United Water Conservation
II pistrict, Regular Board Meeting, June I 2, 20 I 3
12 206. llfnited Water Conservation District Resolution No. 2013-05, A Resolution of the
"'oard of Directors of United Water Conservation District Adopting the Proposed
13 fiscal Year 2013-2014 Budget and Authorizing Expenditures Pursuant thereto
14 and Authorizing Fiscal Year 2012-2013 Appropriation Carryovers
(Encumbrances) and Approval of Financial Policies and Authorizing the
15 Preparation of the Final Budget, June 12,2013
16 207. Staff Report, Item 7.3, Conclusion of Annual Groundwater Hearing, Acceptance
of Public Comment and Setting of2013-14 Zones and Extraction Charges,
17
~nited Water Conservation District, Regular Board Meeting, June 12, 2013
18
208. l)nited Water Conservation District, Resolution No. 2013-06, Making Findings
19 And Determinations From the Evidence Submitted at the Annual Hearings on the
Groundwater Conditions of United Water Conservation District, June 12,2013
20
21 209. United Water Conservation District, Resolution No. 2013-07, Making Additional
Findings And Determinations from the Evidence Submitted at the Annual
22 Hearings on the Groundwater Conditions of United Water Conservation District,
Determining And Establishing Groundwater Extraction Charge Zones and
23 Levying, Assessing and Fixing Groundwater Extraction Charges Against All
24 Persons Operating Groundwater Producing Facilities Within Such Zones, June
12,2013
25
210. Exhibit A to the June 12,2013 Testimony of Tony Morgan at United Water
26 Conservation District's Public Hearing for Groundwater Conditions 2013-14
Water Year
27
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ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2,2013 PUBLIC HEARINGS
AlTUI\NE'OSATIAW
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
~xhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 211. Resume of John W. Famkopf, P.E.
3 ~esume of Rodney T. Smith, Ph.D.
212.
4
213. ~ost of Service Analysis-John W. Farnkopf, P.E., Senior Vice President,
5 !HF&H Consultants LLC--June II, 2013
6 214. Slide Presentation by John Famkopf, during Item 7.3, United Water
Conservation District Board Meeting, June 12, 2013
7
8 215. ~tratecon Analysis of the Structure of United Water Conservation District's
!Water Conservation Extraction Charges--Rodney T. Smith, Ph.D., President,
9 Stratecon, Inc.--June II, 2013
10
216. Slide Presentation (Reasonable Ratio ofM&I To Ag Water Conservation
II l£xtraction Charges), by Rodney T. Smith, Ph.D., during Item 7.3, United Water
Conservation District Board Meeting, June 12, 20 13
12
217. !Technical Memorandum: Infiltration Potential of Precipitation Falling On
13 peveloped Lands And The Fate Of Applied Groundwater Within UWCD ,
14 !United Water Conservation District staff, June 2013
Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 225. Natural Resources Conservation Service, United States Department of
Agriculture, Part 630 Hydrology National Engineering Handbook
3
226. Ventura County Watershed Protection District, 2010, Design Hydrology Manual
4
227. y~ntura County Watershed Protection District, rainfall records from the
5 District's website:
http://www. vcwatershed.net/hydrodata/php/getstations.php?dataset=rain_day
6 (Second referenced file)
7 228. A9ua Terra, 2009, Hydrologic Modeling of the Santa Clara River Watershed
with the U.S. EPA Hydrologic Simulation Program- Fortran (HSPF), Submitted
8 o Ventura County Watershed Protection District, July 24, 2009 Revised Final
Draft
9
229. <...alifomia Department of Water Resources, 1971, Seawater Intrusion: Aquitards
10 'n the Coastal Ground Water Basin of Oxnard Plain, Ventura County; CA DWR
!Bulletin 63-4, 567p.
11
230. ~MIS, 2013, www.cmis.water.ca.gov; Piru CMIS ETo data 1991-2005
12
231. rrigation Training and Research Center, 20 I 0, Evaluation of Strengths and
13 Weaknesses of the Existing FCGMA IE Program and Specific Suggestions for
mprovement, Final Task 2.2/
14
232. [Report oflnvestigation and Recommendations for Acquisition and Construction
15 pfa Water Conservation System, United Water Conservation District of Ventura
~ounty, California, September 1953
16
233. nvestigations, Plans and Estimates for a Supplemental Water Supply in the
17 Santa Clara Valley and Vicinity, United Water Conservation District of Ventura
rounty, California, Julian Hinds, General Manager and Chief Engineer, 1953
18
234. [Revisions to Proposed Budget, distributed to Board of Directors during Item 5.4,
19 ~nited Water Conservation District, Regular Board Meeting, June 12,2013
20 une 10,2013, letter from City of Ventura, re: June 12,2013 UWCD Board
235.
~eeting, Agenda Item No. 7.3 Annual Investigation and Report of Groundwater
21 1:onditions within UWCD dated March 2013
22
236. une II, 2013 letter from City of Ventura, re; Opposition to Proposed FY 2013-
23 · 14 Groundwater Extraction Charges on the City of San Buenaventura
24 237. une 12, 2013 Transcript of Proceedings of the United Water Conservation
District Public Hearing for Groundwater Conditions
25
238. United Water Conservation District, Adopted Annual Budget Fiscal Year 2013-
26 14
6 242. uly 10,2013 District Board Meeting Staff Report Concerning City's Request
for Reconsideration
7
243. uly 10, 2013 United Water Conservation District Board Meeting Minutes
8
244. Phase 1, 2 and 3 Rulings of Santa Barbara Superior Court in City of San
9 Buenaventura v. United Water Conserva/ion District etc., eta/, Santa Barbara
Superior Court Case No. 56-2011-00401714, and Related Case No. 1414739
10 Ventura County Superior Court Case No. 56-2012-00422218-CU-WM-VTA)
II 245. All pleadings from litigation referenced in Exhibit U244, not otherwise included
in Exhibit U179
12
246. u1y 29, 2013 United Water Conservation District Board Meeting Agenda and
13 Minutes
14 247. u1y 29,2013 District Board Meeting Staff Report, Item No. 1.2
15 248. !Notice of Public Hearing on Groundwater Extraction Charges October 2, 2013,
!mailed August 16, 2013
16
249. ~~ptember II, 2013 District Board Meeting Staff Report (Item 2.7) Concerning
17 esolution No. 2013-10 and District's 2013-2014 Groundwater Extraction
Charges October 2, 2013 Hearing
18
250. ~dopted Resolution No. 2013-10-- September 11,2013 by United Water
19 Conservation District Board of Directors
20 !Notice of October 2, 2013 Public Hearing-Certificate of Publication-September
251.
21 19,2013
252. ~nited Water Conservation District Website Pages (postings concerning October
22
, 2013 public hearing placed on District website on September 5, 2013)
23
253. ~ctober 2, 2013 United Water Conservation District Board Meeting Agenda
24
254. October 2, 2013 District Board Meeting Staff Report (Item 3. I)
25
255. !Technical Memorandum: Infiltration Potential of Precipitation Falling on
26 Developed Lands and the Fate of Applied Groundwater Within UWCD, United
Water Conservation District staff, September, 2013, and October 2, 2013 Board
27 j:>resentation (PowerPoint) by Tony Morgan
28
MUSICK. PEELER 923038.1 21
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ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
ATJ'OllNEYSATU.IP
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 256. 1.'-evised Cost Of Service Analysis, October I, 2013, and October 2, 2013 Board
Presentation (PowerPoint)-John W. Farnkopf, P.E., Senior Vice President,
3 HF&H Consultants LLC
4 257. Cost-of -Service Analysis: Response to City of Ventura---John W. Farnkopf,
Senior Vice President, HF&H Consultants LLC-September 23, 2013
5
258. Supplemental Stratecon Analysis of the Structure of United Water Conservation
6 ])istrict's Water Conservation Extraction Charges-Rodney T. Smith, Ph.D.,
President, Stratecon, Inc.-October I, 2013
7
259. Responses to Comments on Stratecon's Analysis Of The Structure Of United
8 Water Conservation District's Water Conservation Extraction Charges-Rodney
T. Smith, Ph.D., President, Stratecon, Inc.---september 16, 2013
9
260. l)nited Water Conservation District Proposed Resolution No. 2013- I I, Finding
10 fhat No Majority Protest Exists as to the District's 2013-2014 Groundwater
Extraction Charges
II
261. United Water Conservation District, Proposed Resolution No. 2013-12, Making
12 r:'indings and Determinations From The Evidence Submitted Concerning
Groundwater Conditions Of United Water Conservation District
13
262. United Water Conservation District, Proposed Resolution No. 2013-13, Making
14 ~dditionalFindings And Determinations From The Evidence Submitted
Concerning Groundwater Conditions Of United Water Conservation District,
15 Reaffirming Its Determination And Establishment Of Groundwater Extraction
tharge Zones, And Reaffirming Its Levy, Assessment And Fixing Of
16 Groundwater Extraction Charges Against All Persons Operating Groundwater
Producing Facilities Within Such Zones For The 2013-2014 Water Year
17
263. Excerpt from Second Edition Applied Hydrogeology by C. W. Fetter.
18
264. Excerpt from Ground Water Manual, A Water Resources Technical Publication I
19 by U.S. Dept. of the Interior, Revised Reprint 1981
I
20 265. Landscape and Irrigation Introduction, The Water Needs of Plants, I
I
www.allianceforwaterefficiency.org. (20 13)
21
266. Publication of State Water Resources Board, Bulletin No. 12, Ventura County
22 nvestigation, Volume I Text. October 1953, Revised Aprill956.
23 State of California DWR, Bulletin 63-1, Sea-Water Intrusion Oxnard Plain of
267.
Ventura County. October 1965.
24
25 268. State of California DWR, Bulletin No. 74-9, Water Well Standards Ventura
County. August 1968.
26
269. Open File Report 93-147 (Use of A Geographic Information System to Identify
27 f..handoned Wells by Steven K. Predmore, 1993)
28
MUSICK, PEELER 9230)8.1 22
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ADMINISTRATIVE RECORD INDEX FOR JUNE 12, 20I3 AND OCTOBER 2, 20I3 PUBLIC HEARINGS
An'OIINCYSATLAW
ON DISTRICT GROUNDWATER CONDITIONS: 20l3-20I4 WATER YEAR
Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 270. ~opy of newspaper column dated August 3, 2013 from the Ventura County Star
~ntitled: "John Krist: Ventura 'win' sets county on a calamitous path."
3
271. ~icle X, Section 2, California Constitution
4
272. Revised Administrative Draft, Bay Delta Conservation Plan, Appendix 9.A.
5 !Economic Benefits OfThe Bay Delta Conservation Plan And Take Alternatives,
The Brattle Group, May 2013)
6
273. 'Price Elasticity Reconsidered: Panel Estimation OfA Water Demand
7 ~:mction," K. Schoengold, G. Moreno and D. Sunding, Water Resources
esearch Vol. 42, W09411 (2006), DOl: 10.1029/2005WR004096
8
274. ~~timating Business And Residential Water Supply Losses From Catastrophic
9 ~~ents," N. Brozovic, D. Sunding and D. Zilberrnan, Water Resources Research
ol. 43, W08423 (2007) DOI: 10.1029/2005WR004782
10
275. ~tter dated October I, 2013, from Shana Epstein, Ventura Water General
II anager, to Mary Kanatzar, UWCD Administrative Services Manager re:
:Protest of Proposed FY 2013-2014 Groundwater Extraction Charges on the City
12 ~:u' Buenavcntura, including attached Hopkins Groundwater Consultants and
elis Financial Consultants letters.
13 .
27
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ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCTOBER 2, 2013 PUBLIC HEARINGS
AnoRNt\'SATUII'
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
!Exhibit No: Document: (All documents stamped "AR3" before exhibit number)
2 282. October 14,2013 Letter from Michael G. Colantuono to Anthony Trembley,
3 I
I
UWCD General Counsel regarding Request for Reconsideration of 2013-2014
District Groundwater Extraction Charges, including the following two
attachments:
4
5 I
I A. October 14, 2013 letter report from Curtis J. Hopkins of Hopkins
Groundwater Consultants, Inc.; and
I
6 B. October 14, 2013 letter report from Sudhir Pardiwala and Hannah
Phan of Raftelis Financial Consultants, Inc.
7
283. Minutes ofthe regular meeting ofUWCD's Board held November 13, 2013
8
9 I 284. Staff Report from Ken Breitag, UWCD Executive Coordinator, to UWCD's
~
oard dated February 28, 2013 (for the March 13, 2013 Board Meeting)
I
I egarding "Agenda Item 2.8 District Outreach Proposal and Authorization of a
10 Supplemental Appropriation for FY 2012-13 for $15,000"
II 285. Minutes of regular meeting ofUWCD's Board held March 13,2013
12
13
DATED: February H_, 2015 MUSICK, PEELER & GARRETT LLP
14
15 ,,~;-~
v
Anthony HJ:remble)l
16 Jane Ellison Usher
Attorneys for Defendants and Respondents United
17 Water Conservation District and Board of
18 Directors of United Water Conservation District
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MUSICK, PEELER 923038.1 24
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ADMINISTRATIVE RECORD INDEX FOR JUNE 12,2013 AND OCfOBER 2, 2013 PUBLIC HEARINGS
A1TORNJ;Y5ATL\W
ON DISTRICT GROUNDWATER CONDITIONS: 2013-2014 WATER YEAR
I PROOF OF SERVICE
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Ventura, State of California My business address is 2801 Townsgate
4 Road, Suite 200, Westlake Village, California 91361.
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MUSICK, PEELER
& GARRETT LLP
CERTIFICATION OF THE 2014-2015 ADMINISTRATIVE RECORD BY E. MICHAEL SOLOMON,
ATTORNnl'SATU.\11
GENERAL MANAGER OF UNITED WATER CONSERVATION DISTRICT
l SERVICE LIST
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MUSICK. PEELBR 931474.1
& GARRETT LLP
CERTIFICATION OF THE 2014-2015 ADMINISTRATIVE RECORD BY E. MICHAEL SOLOMON,
A-nQIINt:;l"SAl'LAW
GENERAL MANAGER OF UNITED WATER CONSERVATION DISTRICT
EXHIBIT NO. 2
1/26/2015 Superior Court of the County of Santa Barbara- Online Services- Tenative Rulings
TENTATIVE RULING
1467531
Ruling
For the reasons set forth herein, the motion of Petitioner City of San
Buenaventura to augment the administrative record is granted to include in
the 2013-2014 administrative record items 1, 2, 4 and 5 and to include in the
2014-2015 administrative record items 4 through 11, as those items are
described in the notice of this motion. As explained herein, the court may limit
the purposes for which these documents are considered upon hearing of the
merits of Petitioner's claims. The motion is denied as to item 3.
f
I
IBackground
http://www.sbcourts.org/osltr/tentative-detail.php?Rule1D=44246 1/10
1/26/2015 Superior Court of the County of Santa Barbara- Online Services- Tenative Rulings
IUWCD noticed and held a public hearing on June 12, 2013, to determine,
Iamong other things, the 2013-2014 groundwater extraction charges.
!(Trembley dec!.,~ 4.) At that hearing, the Board received oral presentations
land written reports from two experts, John Farnkopf and Rodney Smith,
jproviding analysis relating to the quantitative distinction between agricultural
land non-agricultural groundwater extraction charges. (Trembley dec!.,~ 5.)
IThe written reports were dated June 11, 2013. (Whatley dec!., ~ 4.) The
J Board also received on that date a copy of a technical memorandum
i prepared by UWCD staff in support of the experts' work. (Trembley dec!., ~
15.)
i
I
iA total of 236 exhibits were placed into AR2013. (Trembley dec!.,~ 4.)
!Beginning with its 2012-2013 ratemaking, UWCD has employed a sequential
!exhibit list that adds exhibits with corresponding numbers to the prior year's
iraternaking record. (Trembley dec!.,~ 7.) A few exhibits are modified,
!updated or omitted, but the bulk of the exhibits remain unchanged. (Ibid.)
IApproximately 173 exhibits in the 2013AR are from the prior 2012-2013
lratemaking record. (Trembley dec!.,~ 8.)
;
'
;
IAccording to UWCD, all exhibits were available for public view in the Board
hearing room on June 12, 2013. (Trembley dec!., 1f5.) The City requested a
CD of the exhibits from UWCD, which UWCD subsequently provided. (Ibid.)
According to City, UWCD staff purported to introduce into the record two
!bankers boxes of evidence that were not opened or offered to the public or
!Board for inspection. (Whatley dec!.,~ 4.) City objected to the charges and
ithe means by which the Board adopted them. (Whatley dec!.,~ 5.)
,At the conclusion of the public hearing on June 12, 2013, UWCD adopted
!Resolution Nos. 2013-06 and 2013-07 to set the 2013-2014 groundwater
textraction charges. (Trembley dec!.,~ 8 & exhibits B, C.) ·
I
IOn June 21, 2013, counsel for City, Michael Colantuono, requested
!reconsideration of the 2013-2014 groundwater extraction charges to allow
Ithe City to consider and respond to the late-disclosed evidence. (Whatley
!dec!., ~ 7; Trembley dec!.,~ 9.) At the July 10, 2013, meeting of the Board,
1the Board denied the request for reconsideration, declining to reopen its
1 ratemaking. (Trembley dec!.,~ 10.)
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:on July 23, 2013, this court issued its ruling in the related cases between the
·same parties regarding groundwater extraction charges for 2011-2012 and
2012-2013. Following this ruling, the Board initiated a new hearing process
for the 2013-2014 rates. (Trembley decl., ,-r 11.) A public hearing was set for
October 2, 2013. (Ibid.)
i
1On the evening before the October 2, 2013, hearing, City provided two
!opposition letters and reports from the City's counsel and experts. (Trembley
ldecl., ,-r 15.) I
I I
!At the beginning of the October 2, 2013, hearing, UWCD made available two
Ireports from its consultant, Stratecon, Inc., and two from another consultant,
lHF&H Consultants LLC that responded to the City's experts' reports it had
!submitted with the City's request for reconsideration of June 21, 2013.
I (Ruderman decl., ,-r 3.) The reports were dated either September 2013 or
!October 1, 2013. (Ibid.) UWCD also provided a "revised 2013 UWCD
!Technical Memorandum." (Ibid.) None of these reports had previously been
Imade available to the public, but were made available prior to the start of the
j hearing. (Ibid.; Trembley decl., ,-r 14) City objected to these reports on the
jgrounds that they had not been provided for advance review. (Trembley decl., !
!,-r15.)
i
i
!At the conclusion of the public hearing, the Board adopted Resolution Nos.
12013-12 and 2013-13 which made findings and reaffirmed the rates
!previously adopted. (Trembley decl., ,-r 16.)
I
i
!On October 14, 2013, City made a request for reconsideration of the Board's
I actions
on October 2, 2013. (Trembley decl., ,-r 17.) At the November 13,
12013, meeting, the Board denied the request for reconsideration, declining to
Ireopen its ratemaking. (Trembley decl., ,-r 18.)
I
IUWCD prepared its Annual Investigation and Report, dated March 10, 2014.
(March 2014 Report). (Trembley decl., ,-r 19 & exhibit G.) The March 2014
!Report was utilized by the Board in its ratemaking for the 2014-2015
groundwater extraction charges. (Trembley decl., ,-r 19.) The March 2014
Report was included by UWCD in the administrative record of its ratemaking
for the 2014-2015 groundwater extraction charges (AR2014 ). (Ibid.)
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On May 29, 2014, the Board held a public workshop attended by City
representatives during which the Board was presented with oral
:presentations and written reports relating to the quantitative distinction
ibetween agricultural and non-agricultural groundwater extraction charges.
!(Trembley decl., 1!20.) A total of 337 exhibits, including these written reports,
!were provided to the Board and to the public on May 29, 2014. (Trembley
!dec!., 1!21.) City representatives were given a flash drive with these exhibits
ion May 29,2014. (Ibid.) The exhibits included the City's October 14, 2013
f request for reconsideration and minutes of the Board's November 13, 2013,
!
!At approximately 4:45p.m. on June 19, 2014, UWCD emailed to counsel for
ICity four new memoranda, all dated June 19, 2014, responding to the
[evidence presented by City on June 10. (Ruderman decl., 1f6 & exhibit L.) At
Ithe June 20 hearing, UWCD staff and experts presented oral and written
!responses to the City's June 10 submissions. (Trembley decl., 1!24.) City
!objected that City did not have the opportunity to review the responses to the
jCity's submissions. (Trembley decl., 1!24; Ruderman decl., 1f6.)
[At the conclusion of the public hearing on June 20, 2014, UWCD adopted
!Resolution Nos. 2014-07 and 2014-08 to set the 2014-2015 groundwater
jextraction charges. (Trembley decl., 1!24 & exhibits H, 1.)
I
[on June 30, 2014, the City made a written request for reconsideration of the
IJune 20 rate decision. (Trembley decl., 1!25.) The City's request included
!additional reports from its experts. (Ibid.) At its July 9, 2014, regular meeting,
!the Board denied the request for reconsideration. (Trembley decl., 1f25.)
I!containing
on July 14, 2014, City's counsel submitted another letter to UWCD counsel
additional information which the City wished to place in the
!AR2014. (Trembley decl., 1f26.)
I
IThe parties were not able to agree as to the complete contents of AR2013
1
and AR2014. On December 31, 2014, City filed this motion to augment both
records with particular documents. The motion is opposed by UWCD.
1
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City seeks to augment AR2013 with the following documents: (Note: The item
numbers are those used by City in its notice of motion.)
(1) The October 14, 2013 letter requesting reconsideration and its two
attachments.
(4) Staff report from Ken Breitag, UWCD Executive Coordinator, to the
Board, dated February 28, 2013, for the March 13, 2013, Board meeting,
regarding "Agenda Item 2.8 District Outreach Plan Proposal and
Authorization of a Supplemental Appropriation for FY 2012-13 for $15,000."
(4) Staff report from Ken Breitag, UWCD Executive Coordinator, to the
Board, dated February 28, 2013, for the March 13, 2013, Board meeting,
regarding "Agenda Item 2.8 District Outreach Plan Proposal and
Authorization of a Supplemental Appropriation for FY 2012-13 for $15,000."
(This is the same document as item 4, above.)
(5) Minutes of the UWCD Board Meeting of March 13, 2013. (This is the
same document as item 5, above.)
(8) The July 14, 2014, letter requesting reconsideration and its two
attachments.
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!(9) The July 16,2014, letter from UWCD counsel regarding City's request
I for reconsideration and its two attachments.
I
1(10) The July 17, 2014, letter from City responding to UWCD.
!
I(11) UWCD, Pumping Trough Pipeline Users Group Meeting, PowerPoint
/Slide Presentation, prepared by UWCD, cited in a report attached to the July
[14, 2014, letter.
i
I A""''"'"
[The setting of groundwater extraction rates is a quasi-legislative action by
iUWCD. (Cf. Carlton Santee Corp. v. Padre Dam Municipal Water District
[(1981) 120 Cai.App.3d 14, 18.) A challenge to a quasi-legislative action is
!ordinarily limited to traditional writ of mandate. (Western States Petroleum
!Association v. Superior Court (1995) 9 Cal.4th 559, 567 (Western States).)
i
ht is well settled that extra-record evidence is generally not admissible in non-
lCEQA traditional mandamus actions challenging quasi-legislative
!!administrative decisions." (Western States, supra, 9 Cal.4th at p. 574.) Extra-
record evidence is nonetheless admissible under certain, very limited
!circumstances. Extra-record evidence is admissible "in those rare instances
1in which (1) the evidence in question existed before the agency made its
·decision, and (2) it was not possible in the exercise of reasonable diligence to
present this evidence to the agency before the decision was made so that it
could be considered and included in the administrative record." (/d. at p. 578.)
·Extra-record evidence may potentially also be admissible where the evidence
is relevant to "(1) issues other than the validity of the agency's quasi-
legislative decision, such as the petitioner's standing and capacity to sue, (2)
affirmative defenses such as laches, estoppel and res judicata, (3) the
accuracy of the administrative record, (4) procedural unfairness, and (5)
1agency misconduct." (/d. at pp. 575, fn. 5, 578-579.) "However, extra-record
Jevidence can never be admitted merely to contradict the evidence the
!administrative agency relied on in making a quasi-legislative decision or to
Iraise a question regarding the wisdom of that decision." (/d. at p. 579.)
I
(I) Reconsideration Items
Proposition 218 requires "a ratesetting process that includes notice and
hearing requirements sufficient to allow meaningful public participation."
(Morgan v. Imperia/ Irrigation District (2014) 223 Cai.App.4th 892, 911.)
Procedures by which those challenging compliance with article XIII D of the
California Constitution are effectively precluded from submitting contrary
evidence would implicate the validity of the result of such procedures. At the
!same time, all hearings must be "tolerably administrable and flexible to avoid
1needless expense and delay" (ibid.) and not held hostage to a challenger
!always with something more to say.
' resolve this conundrum in the manner most judicially expedient, the court
ITo
!will provisionally grant the augmentation motion as to these reconsideFation
Iitems. The court will consider these items as part of their respective
!administrative records to resolve City's procedural challenge regarding the
irequests for reconsideration. The court reserves determination as to whether
1it will consider these items to resolve City's Proposition 218 challenge when
jthe court considers the merits of City's petition.
I
IAlthough the final report existed before the rate hearings and could have
i been considered by UWCD, the report is a City report, not a UWCD report.
City cites no evidence in this motion that that UWCD even had possession of
the final (as opposed to draft) report prior to the rate hearings. City simply
, reasons that because UWCD had a copy of the draft report it must have
i
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1/2612015 Superior Court of the County of Santa Barbara- Online Services- T enative Rulings
considered the final report. This reasoning is insufficient to establish that the
final report was considered by UWCD or that the final report should be
deemed to have been considered by UWCD. City's motion will be denied as
to item 3.
Item 5 is the minutes of the UWCD Board Meeting of March 13, 2013, which
is sought to be included in both administrative records. This document is a
UWCD document and existed prior to both rate hearings.
Item 4 is the staff report from Ken Breitag, UWCD Executive Coordinator, to
the Board, dated February 28, 2013, for the March 13, 2013, Board meeting,
regarding "Agenda Item 2.8 District Outreach Plan Proposal and
Authorization of a Supplemental Appropriation for FY 2012-13 for $15,000."
City seeks to include this document in both administrative records.
City argues that these documents should be included because they are
UWCD documents which are relevant to its claims. "[A] quasi-legislative
administrative agency[] must in reason be presumed to have considered its
earlier studies, reviews and reports, made at the expense of time and money
... , as well as such evidence as was initially produced at the hearings. The
validity of such studies, reviews and reports did not depend upon their being
'presented' anew to the commissioners at the hearings. As we have pointed
out, a quasi-legislative hearing 'allowed by legislative grace is not I.
circumscribed by the restrictions applicable to judicial or quasi judicial I
adversary proceedings.' [Citation.]" (City of Santa Cruz v. Local Agency I.
Formation Commission (1978) 76 Cai.App.3d 381, 392.)
I
City's request for judicial notice of certain portions of the legislative history of
Senate Bill No. 864, enacted as chapter 1414 of the Statutes of 1963, is
denied. These documents are not necessary or relevant to the court's
disposition of the motion as discussed above.
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I
I
I
PROOF OF SERVICE
10
194100.2
the service list on May 8, 2018 from the court authorized e-filing
service at TrueFiling.com. No electronic message or other indication
that the transmission was unsuccessful was received within a
reasonable time after the transmission.
11
194100.2
I
SERVICE LIST
City of San Buenaventura v. United Water Conservation District, et al. I
Supreme Court Case No. S226036 I
Court of Appeal, Second Appellate District, Div. 6, Case No. B251810
Santa Barbara Superior Court Case Nos. VENCI 00401714 & 1414739
Courtesy Copy
Via Email Through TrueFiling
Miles P. Hogan
Assistant City Attorney
City of Ventura ,_.,,·
1.....
P.O. Box 99
I.
Ventura, CA 93001
Phone: (805) 654-7818
Fax: (805) 641-0253
Email: mhogan@cityofventura.ca.gov I
Attorneys for Appellant City of San
Buenaventura
12
194100.2
Via U.S. Mail Via U.S. Mail
Alan Diamond Stanly Tokio Yamamoto
Greines Martin Stein & Richland Office of District Counsel
5900 Wilshire Blvd., 12th Floor 5750 Almaden Expressway
Los Angeles, CA 90036 San Jose, CA 95118
Attorneys for Santa Clara Valley Attorneys for Santa Clara Valley Water
Water District, Amicus Curiae District, Amicus Curiae
13
194100.2
Via U.S. Mail Via U.S. Mail
JeffreyS. Lawson Robert K. Johnson
Silicon Valley Law Group Johnson & James, LLP
50 West San Fernando St., #750 331 Bonita Drive
San Jose, CA 95113 P.O. Box 245
Attorneys for Great Oaks Water Aptos, CA 95003
Company, Amicus Curiae Attorneys for Great Oaks Water
Company, Amicus Curiae
14
194100.2
Via U.S. Mail Via U.S. Mail
David M. Axelrad Office of the Attorney General
Mitchell C. Tilner 1300 I Street
Horvitz & Levy, LLP Sacramento, CA 95814-2919
3601 West Olive Avenue, 8'h Fir.
Burbank, CA 91505-4681
Attorneys for Water Replenishment
District of Southern California,
Amicus Curiae
15
194100.2