North Coast growers take fight over frost rules to state high court

Local grape growers and farmers are taking their fight over controversial rules governing frost protection to the state’s highest court, escalating a legal battle over regulations meant to protect endangered fish in the Russian River and its tributaries.

In the first of two planned appeals, Redwood Valley grape grower Rudy Light on Friday asked the California Supreme Court to review an appellate court decision in June that upheld the state regulations, dealing a blow to opponents, who have described the rules as government overreach.

They were imposed in 2011 by the state Water Resources Control Board, which along with other agencies, said the new measures were needed to safeguard beleaguered salmon and steelhead trout populations in the Russian River. For the first time, the state required growers to track and report the water they draw out of the river system in spring to spray over their crops and protect them from frost.

The requirements were set to affect hundreds of growers across tens of thousands of acres in Sonoma and Mendocino counties. Opponents in both counties were quick to sue the state, winning a first round in court in 2012, when Mendocino County Judge Ann Moorman struck down the rules, calling them “constitutionally void” and “invalid.”

Light and another group of plaintiffs, the Russian River Water Users for the Environment, who plan to file their appeal Monday, want that lower court ruling to stand. They have assailed the June 16 decision by the state’s 1st District Court of Appeal reversing Moorman’s ruling.

“We believe it’s inconsistent with prior rulings from other appellate courts,” said Matisse Knight, a lawyer representing Rudy and Linda Light.

In her ruling, Moorman said the state water board had infringed on growers’ water rights and wrongly required farmers to gather information and create regulations themselves at great expense. She also said it appeared several factors, not just frost protection, contributed to fish deaths in the watershed.

“The trial court (judge) went to great lengths to show how she ruled to invalidate the regulation,” Knight said. “It had some sound reasoning based upon cases in place for a long time.”

In its reversal, the appellate court found the state water board had the authority to issue rules requiring grower groups to study stream flows and develop plans to manage diversions throughout the watershed. Several sections of the state’s water code give the board authority to prevent unreasonable water use, and the agency’s rule did not violate the farmers’ water rights because the affected waterways and their flows are protected under the state’s public trust doctrine, the appellate court found.

Tim Moran, spokesman for the state Water Resources Control Board, said he could not comment on the appeal because the agency had not received the petition.

“We believe the court of appeals decision is well-reasoned and consistent with prior court of appeals and state Supreme Court decisions,” Moran said.

The legal wrangling has been part of a six-year standoff between the farmers and federal and state government over regulation of stream diversions on the Russian River. It began when federal officials urged the state water board to take action after an estimated 25,000 salmonids were killed in two incidents in April 2008, when the young fish were stranded due to low river flow.

The National Marine Fisheries Service attributed the drop in flow to farmers, especially grape growers, who use the water to spray on budding vines to form a protective ice shield during spring frosts. The watershed has more than 60,000 acres of vineyards, according to court documents, and 70 percent are within 300 feet of salmonid habitat.

Both of the 2008 episodes occurred during spring periods with freezing temperatures.

But growers have strongly disputed both the government science documenting sharp drops in river flows and claims that their diversions were a central factor in any strandings.

Growers also say the mandatory measures are not as effective as other proactive and voluntary measures that vineyards have taken. That includes the construction of off-stream ponds that can store water during peak flows, which helps growers avoid diverting water en masse directly from streams during cold or dry periods.

The state water board did not adequately consider such measures or “explain why alternative methods of frost protection were less harmful to the environment than direct diversions,” the Lights stated in their appeal.

You can reach Staff Writer Bill Swindell at 521-5223 or bill.swindell@pressdemocrat.com. On Twitter @BillSwindell.