#9 The Jury Trial Where Criminal Law met Water Law at a Crossroads

There have been multiple times in my experiences as a prosecutor where I have had to dig deep into some very non-criminal law areas in order to both and proceed with prosecution. Crimes that happen in California that impact our natural resources is one of those areas.

In California we have complicated regulatory schemes involving farming and use of our natural resources. Enforcement of the regulations is also given to multiple agencies throughout the State, and every once in a while, the District Attorney’s office is called upon to enforce criminal violations of these regulations, when appropriate.

It should also come as no surprise that water rights have been discussed, fought over, regulated, and litigated for hundreds of years. It is a complex area of the law. You take courses on it in law school and attorneys specialize in water law in California-choosing only to represent clients in this very particularized area.

California also has several regulatory and enforcement agencies that all work within their government roles to enforce regulatory rights. The Department of Fish and Wildlife for example is tasked with giving permission to divert, obstruct, or alter streambeds. This is typically done by a landowner who asks for permission, and after consultation with scientists, permission is either granted or denied. Completing work in a streambed that constitutes alteration, diversion or obstruction wihtout permission is a crime.

Jury trial #9 involved the diversion and obstruction of a streambed in the foothills of Butte County in order to bring water up a hill to use in a marijuana grow on the property. The incident started in 2009: Marijuana was still illegal to possess or grow, there were no regulatory schemes around cultivating it, and it tended to be highly destructive to the land surrounding it. In general, highly toxic pesticides and other chemicals would be allowed to seep into the ground, our public forests would be stripped of wood of foilage to make way for the grows, and streams would be altered, diverted, and sometimes destroyed entirely to provide nutriuents for the plants.

In this case the defendant had installed a 2,500 gallon water tank in the middle of a stream located on the south portion of property adjacent to his own (the property was owned by Union Pacific Railroad). The tank was outfitted with a pump to allow the water to travel up a hill and onto defendant’s land to irrigate a large marijuana grow. Later, the defendant cut trees down on his neighbors property, without permission, in order to cut a road into his own land to allow a well driller access.

Both sides utilized environmental scientists as experts as well as land surveyors. Both the effects on the stream and the location of the road were at issue in the case. The case became so technical that the experts were literally fighting over when a stream becomes a stream and subject to regulation by the State.

During this time, prosecutors both in Butte County, and around the State were attempting to find creative ways to hold illegal marijuana growers accountable for the environmental harm they were causing with their grows. This statement is still true today. While regulations on cultivation of marijuana are present, the illegal grows are still doing an environmental number in our forests and streams.

In this case we came up with the novel idea of charging the defendant with actual theft of the water-2,500 gallons of it on the day he was arrested based on the full water tank. The argument was the People of the State of California are the owners of our natural resources (aka water) but we have granted regulatory authority to the Department of Fish and Wildlife to help protect it’s use. Defendant, by capturing the 2,500 gallons from the stream without permission, had stolen that water from the People. That water had been destined to travel through tributaries to eventually reach the Oroville Lake Reservoir where it would benefit wildlife and plants along the way and ultimately be used by the People as regulated by the Department of Water Resources.

A jury found the defendant guilty of diversion of the stream and theft of water as well as trespass to land by injuring timber. The case had been tried in 2014, during a period of drought in California. Water was on everyone’s mind and the importance of illegal diversion was, and still is, an important area of enforcement.

No one had been found guilty of theft of water before in California! This case went up on appeal and ultimately, in a published opinion, we received clarity that Theft of Water is not a crime in California, unless the water had previously been captured for use by someone else and then it is subsequently stolen (as an example think about someone who fills a water truck up and then a third party takes the water truck and uses the water inside of it to fill his own tank).

Read the opinion here: People v. Davis (You may even find a direct quote from my closing argument in the opinion)

Even though clarity has been provided regarding the specific charge, the ability of prosecutors to be able to work with the law to protect both specific victims and the People as a whole is something I am very proud of doing both personally and whenever I see fellow prosecutors doing it. As the society changes, as the law evolves, and as the needs of our community change, this type of flexibility and courage is needed. It takes courage to try something new. It takes courage to stand up to the wrongs of the world and fight them in novel ways. Having courage to take a chance at a jury trial is what I learned here, at the crossroads between criminal and water law.

P.S. Water becomes a stream for purposes of regulation the moment it “daylights” or emerges from the ground. The stream in this case was sourced from water that “daylighted” less than a half mile away. It was a stream in infancy, but we could trace it’s path all the way from daylighting to the Lake Oroville Reservoir.

Author: Jessica F. Miller

Music, Ballet, Disney, and Lady Justice are just a few of my favorite things!

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