Imperial Irrigation District scores another win in court battle with farmer Michael Abatti

A California appellate court on Wednesday denied Imperial Valley farmer Michael Abatti's request for a rehearing in his long-running legal fight with the Imperial Irrigation District over control of Colorado River water. The decision could likely spell the end to his legal challenges.

The court had ruled in mid-July that IID, the single-largest user of Colorado River water, was the rightful manager and distributor of the millions of acre feet that are diverted to the far southern valley every year via an intricate system of canals. In doing so, the three-judge panel overturned a 2017 ruling at the trial court level that said area farmers had a protected right to the water they historically used.

Instead, farmers simply have a right to delivery from IID — not an ownership right that was tied to private property, as the trial court contended — and an equal right to the water as anyone else served by IID.

In a July 30 filing, Abatti's lawyer at the appellate level, Cheryl Orr of Musick, Peeler and Garrett LLP, argued that the appellate court had erred in its decision and should grant a rehearing.

"At the very least, the Court should confirm that, in any future equitable distribution plan, IID may not allocate or distribute water to non-domestic users or agricultural lands without appurtenant rights before agricultural lands with appurtenant rights," Orr wrote.

In a statement to The Desert Sun, she said Abatti felt compelled to appeal "because the language of the opinion could create uncertainty in the future, including in connection with important issues involving the Salton Sea and the upcoming multi-state negotiations regarding the Colorado River."

But the appellate court quickly turned away her request.

"There is no change in judgement. The petition for rehearing is denied," Wednesday's ruling said.

Besides amending several sentences in its 106-page July decision — changes that IID's attorney said would either have little impact or would strengthen the district's position — the court provided no additional explanation.

“As we have said all along, and the court agrees, the owner of the Imperial Valley’s water rights is the Imperial Irrigation District," IID board President Norma Sierra Galindo said in a statement. "The owner of the district is the people that it serves. We are very pleased to learn the court has denied the petition for a rehearing but we are prepared to continue defending against any future efforts to relitigate this historic decision."

Now, Abatti and his legal team — or IID, if they choose to appeal — have only one remaining legal recourse within California: the state's Supreme Court.

In the July appellate court decision, IID did lose on one key point, as the panel ruled that its 2003 Equitable Distribution Plan — a document it wrote to lay out how to apportion water in a time of shortages — was unfair.

Frank Oswalt, IID's general counsel, told The Desert Sun in July that the district's board would ultimately decide whether to appeal onward to the state's apex court. But, he said, that would be an unlikely next step. Instead, the district could simply rewrite the Equitable Distribution Plan and avoid inserting the question of its control over the river water back into the legal battlefield.

IID also has spent an estimated $3 million on the legal challenge, according to Galindo, and could avoid further costs if it does not exercise its right to continue the fight if it stands to gain little by doing so.

Orr did not comment directly on whether Abatti would go the state's top court. But, she said, "The order failed to address the most significant concerns of Mr. Abatti and he intends to seek further review of the opinion in hopes of clarifying the district’s specific duties to farmers."

His side in the legal fight stands to gain much more by appealing, but they would need to do so quickly in order for it to be considered. Even if it is, the California Supreme Court only takes up about 5% of cases that are sent its way, meaning there is no guarantee that Abatti's challenges to IID's power can continue, at least via the state's courts.

Mark Olalde covers the environment for The Desert Sun. Get in touch at molalde@gannett.com, and follow him on Twitter at @MarkOlalde.