CALIFORNIA FARM BUREAU FEDERATION v. STATE WATER RESOURCES CONTROL BOARD
Filed 1/31/11
IN THE SUPREME COURT OF CALIFORNIA
CALIFORNIA FARM BUREAU )
FEDERATION et al. )
)
Plaintiffs and Appellants, )
) S150518
v. )
) Ct.App. 3 C050289
STATE WATER RESOURCES )
CONTROL BOARD, )
) Sacramento County
Defendant and Respondent. ) Super. Ct. Nos. ) 03CS1776 & 04CS00473
__________________________________ )
The California Constitution provides that any act to increase taxes must be passed by a two-thirds vote of the Legislature.[1] On the other hand, statutes that create or raise regulatory fees need only the assent of a simple majority.[2] In 2003, the Legislature passed amendments to the Water Code[3] by a 53 percent majority. Current section 1525 was enacted as part of these amendments. The threshold issue here is whether section 1525, subdivision (a) imposes a tax or a fee. We hold that the amendments and section 1525 do not explicitly impose a tax and, therefore, are not facially unconstitutional. However, because the record is unclear as to whether the fees were reasonably apportioned in terms of the regulatory activity’s costs and the fees assessed, we direct the Court of Appeal to remand the matter to the trial court to make these findings.
A second issue is whether the Water Code amendments, or their implementing regulations, violate the supremacy clause of the United States Constitution by over-assessing the beneficial interests of those who hold contractual rights to delivery of water from the federally administered Central Valley Project (hereafter, the federal contractors). We conclude that the statutes are not facially unconstitutional. We further determine that the constitutionality of the implementing regulations depends on whether they fairly assess and apportion the federal contractors’ beneficial interests. However, because of conflicting factual assertions and an unclear record concerning the extent and value of those interests, we also direct remand to the trial court for findings on this issue.
I. FACTUAL AND PROCEDURAL BACKGROUND[4]
The State Water Resources Control Board (SWRCB or Board) is responsible for the “orderly and efficient administration of . . . water resources” and exercises “adjudicatory and regulatory functions of the state.” (§ 174.) The water in California belongs to the people, but the right to use water may be acquired as provided by law. (§§ 102, 1201.) The SWRCB’s Division of Water Rights (Water Rights Division or Division)[5] administers the water rights program, but its authority is limited. The SWRCB regulates all appropriative water rights acquired since 1914. An appropriative right is the right to take water from a watercourse that does not run adjacent to a landowner’s property. Since 1914, all appropriative rights have been acquired through a system of permits and licenses[6] that the SWRCB or its predecessor state entities have issued. Before 1914, appropriative rights were acquired under common law principles or earlier statutes. The Water Rights Division has no permitting or licensing authority over riparian[7] or pueblo[8] rights, or over appropriative rights acquired before 1914. The SWRCB does have authority to prevent illegal diversions and to prevent waste or unreasonable use of water, regardless of the basis under which the right is held. (§ 275.) Riparian, pueblo, and pre-1914 appropriative rights account for 38 percent of currently held water rights.
Rights regulated under SWRCB licenses and permits include about 40 percent of state water subject to water rights. The federal government holds the remaining 22 percent of water rights. The United States Bureau of Reclamation (Bureau of Reclamation or Bureau) holds the permits and licenses to, and operates, the Central Valley Project (CVP or Project.) The Project diverts and stores water from numerous sources.[9] The Bureau contracts out the responsibility to control, distribute, and use water under the permits it holds. However, these federal contracts involve use of less than 6 percent of the water over which the Bureau holds rights. The remaining water is diverted and stored by the Bureau for hydroelectric, wildlife and other purposes.
Historically, the operation of the Water Rights Division was supported by the state’s general fund (General Fund), with only 0.5 percent of costs covered by fees. In 2003, the Legislative Analyst recommended that the Division’s operating costs be shifted from the General Fund and covered instead by user fees imposed on permit and license holders.[10] The SWRCB strongly opposed the recommendation. The SWRCB pointed out that its authority to impose fees did not extend to those holding water rights that were not based on its permits and licenses. While riparian, pueblo, and pre-1914 rights (collectively, RPP rights) are protected by conditions in new (post-1914) permits and through the Water Rights Division’s enforcement of activity, the Division did not have authority to impose fees on those RPP rights holders. As noted, the RPP holders comprise 38 percent of water rights holders in California. The SWRCB argued that while permit and license holders should pay their share, proportional fees on them could not cover the total cost of the Division’s operation. Additionally, as explained in greater detail below, the federal Bureau of Reclamation and Indian tribes resist paying fees, relying on the principle of sovereign immunity.
These difficulties notwithstanding, the Legislature adopted the Legislative Analyst’s recommendation and passed Senate Bill No. 1049 (2003-2004 Reg. Sess.), repealing certain sections of the Water Code and enacting sections 1525-1560. Together, these statutes are designed to make the Water Rights Division entirely fee supported.
A. The Fee Legislation
We begin with a summary of the relevant statutes.
Section 1525
Section 1525 sets forth the parties and entities subject to the new fees.[11] Section 1525, subdivision (a) requires the SWRCB to adopt a schedule of annual fees to be paid by each permit or license holder. This group does not include riparian, pueblo, or pre-1914 rights holders. Subdivision (b) of section 1525 requires the SWRCB to establish the schedule for a one-time application fee for permits to appropriate water, for approval of leases, and for petitions relating to those applications.
Section 1525, subdivision (c) provides that the SWRCB “shall set the fee schedule authorized by this section so that the total amount of fees collected pursuant to this section equals that amount necessary to recover costs” of the Division’s activities. Subdivision (c) sets out “recoverable costs” in substantial detail but the costs recoverable are “not limited to” those activities identified. (§ 1525, subd. (c).) Subdivision (d)(3) similarly requires the SWRCB to “set the amount of total revenue collected each year through the fees authorized by this section at an amount equal to the revenue levels set forth in the annual Budget Act for this activity.” (§ 1525, subd. (d)(3).)
In other words, the statute requires that the total budgeted cost of the Division’s operations be recovered from the fees. The SWRCB is to review and revise the fees each year as necessary, to ensure they conform with the revenue levels set in the annual budget act (Budget Act). If the revenue collected during the preceding year is either greater or less than the revenue levels set forth in the Budget Act, the SWRCB may adjust the annual fees to compensate for the disparity. (§ 1525, subd. (d)(3).) The SWRCB is also authorized to adopt “emergency regulations” to implement the fee schedule. (§ 1525, subd. (d)(1).)
Section 1537
Section 1537 generally covers collection. While the Board sets the fees, the money is actually collected by the Board of Equalization (BOE). The BOE collects and refunds annual fees collected under the Fee Collection Procedures Law, part of the Revenue and Taxation Code, as limited by subdivision (b)(2) through (4) of section 1537. The BOE has no role in reviewing refund claims under section 1537 or the emergency regulations.
Sections 1540 and 1560
Section 1540 concerns the allocation of annual fees to federal contractors. Section 1560 sets out the options that may be pursued when the federal Bureau of Reclamation or an Indian tribe declines to pay a fee by relying on sovereign immunity.[12] As relevant here, the federal government and Indian tribes are the entities eligible to assert sovereign immunity.
Sections 1550, 1551, and 1552
Sections 1550 and 1551 establish the Water Rights Fund, into which the BOE must deposit fees collected on behalf of the SWRCB. The Water Rights Fund is separate from the General Fund. Money in the Water Rights Fund may be used only for purposes set out in section 1552, which includes SWRCB expenditures necessary to carry out the work of the Water Rights Division, BOE expenditures in connection with collecting the SWRCB fees, and the payment of refunds. (§ 1552.)
B. The Emergency Regulations
To implement section 1525’s fee requirement, the SWRCB adopted California Code of Regulations, title 23, sections 1066 and 1073 (regulation 1066 and regulation 1073). These regulations set formulas to calculate annual fees for permit and license holders, and for the federal contractors. Fees for issuance, supervision, and modification of permits and licenses, i.e., the revenue-producing activities now required to cover the entire cost of the Division’s operations, were to be paid by the permit and license holders regulated by the SWRCB. No money would come from the General Fund. The Court of Appeal explained the difficulty the SWRCB had in setting the fees: “First, the SWRCB had to raise $4.4 million immediately to cover the cost of the water rights program in the second half of the 2003-2004 fiscal year. Second, the funding source had to be ‘relatively stable.’ Third, because of time constraints, SWRCB had to rely on its existing data base in calculating the amount of fees to be assessed. Fourth, although it cost SWRCB between $17,000 and $20,000 to process an application to appropriate water, SWRCB expected people would not seek SWRCB services if the one-time service fees were too high. Fifth, because most persons and entities subject to the annual fee held permits or licenses for less than 10 acre-feet of water,[[13]] a minimum fee was necessary to cover the cost of sending out the fee bills. Sixth, SWRCB anticipated that 40 percent of the water right permit and license holders would refuse to pay annual fees. Seventh, the SWRCB did not have permitting authority over certain holders of water rights (specifically the holders of riparian, pueblo and pre-1914 appropriative rights) amounting to approximately 38 percent of the water diverted in the state.”
C. Annual Fee Formula for Post-1914 Permit and License Holders
Regulation 1066 applies to post-1914 permit and license holders. Regulation 1066, subdivision (a)[14] set the minimum annual fee as the greater of $100, or $.03 for each acre-foot based on the total annual amount of diversion authorized by the permit or license.
To determine the annual fees, the Board started with the $4.4 million budget amount and assumed it would be unable to collect 40 percent of billings from water right holders who claimed sovereign immunity or who refused to pay their bills. It divided the $4.4 million mandated by the Legislature by 0.6 to account for the estimated 40 percent non-collection rate. This increased its targeted revenue to approximately $7 million.
D. Annual Fee Formula for Federal Contractors
Regulation 1073, which implemented the provisions of Water Code sections 1540 and 1560, addressed rights held by the Bureau of Reclamation, but contracted out to federal contractors. Regulation 1073, subdivision (b)(2) applied a formula to calculate the annual fee imposed on those contractors “[i]f the [Bureau of Reclamation] decline[d] or [was] likely to decline to pay the fee or expense . . . for the [Central Valley Project].” In general, regulation 1073 assessed annual fees against contractors based on a prorated portion of the total amount of annual fees associated with all Bureau permits and licenses, rather than the portion available under the terms of their contracts.
E. Proceedings Below
In January 2004, the BOE sent fee notices to the section 1525 permit and license holders and to the federal contractors. The Budget Act set a target of $4.4 million in fee revenue because the balance for the first half of 2003-2004 was paid from General Fund revenue. $7.4 million in water rights fees was collected for fiscal year 2003-2004. The imposition of water rights fees was challenged by several groups of plaintiffs representing various water rights holders.[15]
Plaintiffs sought declaratory and injunctive relief and a writ of mandate. They alleged that the statutory scheme adopted by the Legislature and the emergency regulations adopted to implement the scheme were unconstitutional both on their face and as applied. The trial court denied the writ of mandate, ruling that the money collected constituted valid regulatory fees, rather than taxes. It also rejected plaintiffs’ other constitutional claims.
The Court of Appeal reversed in part, holding that section 1525 was constitutional on its face, but that “as applied” under the emergency regulations, it imposed illegal levies. It remanded the matter to the trial court with instructions that it “(1) stay further proceedings before the SWRCB and/or BOE until the SWRCB adopts new fee schedule formulas and a procedure for calculating refunds if any; (2) order the SWRCB to adopt valid fee schedule formulas within 180 days of the finality of this opinion; (3) order the SWRCB to determine the amount of annual fees improperly assessed under regulations 1066 and 1073 for the 2003-2004 fiscal year and establish a procedure for calculating refunds, if any, due within 180 days of the finality of this opinion; and (4) order the Board of Equalization, through the SWRCB, to refund any annual fees unlawfully collected to fee payers who filed timely petitions for reconsideration with the
SWRCB . . . .”[16]
II. DISCUSSION
A. Standard of Review
Whether section 1525 imposes a tax or a fee is a question of law decided upon an independent review of the record. (Sinclair Paint Co. v. State Bd. of Equalization (1997) 15 Cal.4th 866, 874 (Sinclair Paint).)
The plaintiff challenging a fee bears the burden of proof to establish a prima facie case showing that the fee is invalid. (See Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 421; Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1668 (Sargent Fletcher).) In other words, the plaintiff bears the burden of proof[17] “with respect to all facts essential to its claim for relief.” (Home Builders Assn. of Tulare/Kings Counties, Inc. v. City of Lemoore (2010) 185 Cal.App.4th 554, 562; see Evid. Code, § 500.) The plaintiff “must present evidence sufficient to establish in the mind of the trier of fact or the court a requisite degree of belief (commonly proof by a preponderance of the evidence). [Citation.] The burden of proof does not shift . . . it remains with the party who originally bears it.” (Sargent Fletcher, supra, 110 Cal.App.4th at p. 1667, original italics.)
This burden of persuasion is different from the “burden of producing evidence” (see Evid. Code, § 110), which may shift between the parties.[18] “[T]he burden of producing evidence as to a particular fact rests on the party with the burden of proof as to that fact. [Citations.] If that party fails to produce sufficient evidence to make a prima facie case, it risks nonsuit or other unfavorable determination. [Citations.] But once that party produces evidence sufficient to make its prima facie case, the burden of producing evidence shifts to the other party to refute the prima facie case.” (Sargent Fletcher, supra, 110 Cal.App.4th at pp. 1667-1668, original italics.)
Thus, once plaintiffs have made their prima facie case, the state bears the burden of production and must show “ ‘(1) the estimated costs of the service or regulatory activity, and (2) the basis for determining the manner in which the costs are apportioned, so that charges allocated to a payor bear a fair or reasonable relationship to the payor’s burdens on or benefits from the regulatory activity.’ ” (Sinclair Paint, supra, 15 Cal.4th at p. 878; see California Assn. of Prof. Scientists v. Department of Fish & Game (2000) 79 Cal.App.4th 935, 945 (Prof. Scientists).)
B. Valid Fee or Invalid Tax
Facial challenge
Plaintiff Farm Bureau contends that section 1525’s annual fee requirement is unconstitutional on its face because it imposes a tax, not a valid regulatory fee.[19] We reject this contention.
California Constitution, article XIII A, section 3 requires that “any changes in state taxes enacted for the purpose of increasing revenues” be approved by a two-thirds majority of the Legislature. Senate Bill No. 1049 (2003-2004 Reg. Sess.) passed the Legislature with only a 53 percent majority. Thus, if the amount charged under section 1525 is a tax, it is invalid. If it is a regulatory fee, it is not subject to the supermajority requirement.
We have recognized that “ ‘tax’ has no fixed meaning, and that the distinction between taxes and fees is frequently ‘blurred,’ taking on different meanings in different contexts. [Citations.]” (Sinclair Paint, supra, 15 Cal.4th at p. 874.) Ordinarily taxes are imposed for revenue purposes and not “in return for a specific benefit conferred or privilege granted. [Citations.] Most taxes are compulsory rather than imposed in response to a voluntary decision to develop or to seek other government benefits or privileges. [Citations.] But compulsory fees may be deemed legitimate fees rather than taxes. [Citation.]” (Ibid.)
In contrast, a fee may be charged by a government entity so long as it does not exceed the reasonable cost of providing services necessary to regulate the activity for which the fee is charged. A valid fee may not be imposed for unrelated revenue purposes. (Sinclair Paint, supra, 15 Cal.4th at p. 876; Pennell v. City of San Jose (1986) 42 Cal.3d 365, 375.)[20]
TO BE CONTINUED AS PART II….
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[1] California Constitution, article XIII A, section 3, originally approved by initiative as Proposition 13, sometimes referred to as the “People’s Initiative to Limit Property Taxation,” on June 6, 1978.
[2] On November 2, 2010, the voters approved Proposition 26, which requires a two-thirds supermajority vote of the Legislature to pass certain fees. None of the parties have asserted that the law enacted by Proposition 26 applies to this case.
[3] Hereafter, undesignated statutory references are to the Water Code.
[4] The factual and procedural background is largely adopted from the Court of Appeal opinion.
[5] The Division consists of three sections: permitting, licensing, and hearings and special projects. As noted by the Court of Appeal, “[t]he permitting section ‘processes water right applications, petitions to change terms in water right permits and water right licenses. Groundwater recordations, [and] statements of water diversion and use, which are a recordation function [sic.] . . . .’ The licensing section enforces existing permits and licenses and handles work associated with licensing a permit. The hearings and special projects section assists the SWRCB with various types of administrative hearings, reviews environmental documents filed in support of water rights applications and petitions, assists with the implementation of the Bay-Delta Water Quality Control Plan, and certifies water quality . . . .” Although the SWRCB has other divisions in its organization, we are concerned only with the Water Rights Division.
[6] Anyone seeking to obtain an appropriative water right files an application with the SWRCB (§ 1225 et seq.), which issues a water right permit. (§ 1380 et seq.) Beneficial use of water perfected under this post-1914 statutory scheme is confirmed by a license issued by the SWRCB. (§§ 1605, 1610.) The license is, in effect, a title or deed to the water right and is recorded in the county in which the diversion takes place. (§ 1650.)
[7] Under the common law riparian doctrine, a person owning land bordering a stream has the right to reasonable and beneficial use of water on his or her land. (People v. Shirokow (1980) 26 Cal.3d 301, 307 (Shirokow).) A riparian owner must share the right to use water with other riparian owners. (See Harris v. Harrison (1892) 93 Cal. 676, 681.)
[8] “The pueblo water right—a distinctive feature of California water law— is the paramount right of an American city as successor of a Spanish or Mexican pueblo (municipality) to the use of water naturally occurring within the old pueblo limits for the use of the inhabitants of the city.” (Hutchins, The Cal. Law of Water Rights (1956) p. 256.)
[9] “In 1933, primarily to control flooding in the Central Valley, the California Legislature approved the Central Valley Project (CVP), which is the nation’s largest water reclamation project and California’s largest water supplier. [Citation.] Originally a state project, the CVP was turned over to the federal Bureau of Reclamation, which operates the CVP under rights granted by the SWRCB.” (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1154, fn. omitted.) To achieve its purposes, “[t]he CVP operates 21 reservoirs, 11 power plants, and 500 miles of major canals and aqueducts.” (Id. at p. 1154, fn. 1.)
[10] The proposal called for General Fund support for the first half of the 2003-2004 fiscal year with fee increases covering the second half of the year. Thereafter, total Water Rights Division operations would be fee supported.
[11] In relevant part, section 1525 provides:
“(a) Each person or entity who holds a permit or license to appropriate water, and each lessor of water leased under Chapter 1.5 (commencing with Section 1020) of Part 1, shall pay an annual fee according to a fee schedule established by the board.
“(b) Each person or entity who files any of the following shall pay a fee according to a fee schedule established by the board:
“(1) An application for a permit to appropriate water.
“(2) A registration of appropriation for a small domestic use or livestock stockpond.
“(3) A petition for an extension of time within which to begin construction, to complete construction, or to apply the water to full beneficial use under a permit.
“(4) A petition to change the point of diversion, place of use, or purpose of use, under a permit or license.
“(5) A petition to change the conditions of a permit or license, requested by the permittee or licensee, that is not otherwise subject to paragraph (3) or (4).
“(6) A petition to change the point of discharge, place of use, or purpose of use, of treated wastewater, requested pursuant to Section 1211.
“(7) An application for approval of a water lease agreement.
“(8) A request for release from priority pursuant to Section 10504.
“(9) An application for an assignment of a state-filed application pursuant to Section 10504.
“(c) The board shall set the fee schedule authorized by this section so that the total amount of fees collected pursuant to this section equals that amount necessary to recover costs incurred in connection with the issuance, administration, review, monitoring, and enforcement of permits, licenses, certificates, and registrations to appropriate water, water leases, and orders approving changes in point of discharge, place of use, or purpose of use of treated wastewater. The board may include, as recoverable costs, but is not limited to including, the costs incurred in reviewing applications, registrations, petitions and requests, prescribing terms of permits, licenses, registrations, and change orders, enforcing and evaluating compliance with permits, licenses, certificates, registrations, change orders, and water leases, inspection, monitoring, planning, modeling, reviewing documents prepared for the purpose of regulating the diversion and use of water, applying and enforcing the prohibition set forth in Section 1052 against the unauthorized diversion or use of water subject to this division, and the administrative costs incurred in connection with carrying out these actions.
“(d)(1) The board shall adopt the schedule of fees authorized under this section as emergency regulations in accordance with Section 1530.” [¶] . . . [¶]
“(3) The board shall set the amount of total revenue collected each year through the fees authorized by this section at an amount equal to the revenue levels set forth in the annual Budget Act for this activity. The board shall review and revise the fees each fiscal year as necessary to conform with the revenue levels set forth in the annual Budget Act. If the board determines that the revenue collected during the preceding year was greater than, or less than, the revenue levels set forth in the annual Budget Act, the board may further adjust the annual fees to compensate for the over or under collection of revenue.
“(e) Annual fees imposed pursuant to this section for the 2003-04 fiscal year shall be assessed for the entire 2003-04 fiscal year.”
[12] Section 1540 provides:
“If the board determines that the person or entity on whom a fee or expense is imposed will not pay the fee or expense based on the fact that the fee payer has sovereign immunity under Section 1560, the board may allocate the fee or expense, or an appropriate portion of the fee or expense, to persons or entities who have contracts for the delivery of water from the person or entity on whom the fee or expense was initially imposed. The allocation of the fee or expense to these contractors does not affect ownership of any permit, license, or other water right, and does not vest any equitable title in the contractors.”
Section 1560 provides:
“(a) The fees and expenses established under this chapter and Part 3 (commencing with Section 2000) apply to the United States and to Indian tribes, to the extent authorized under federal or tribal law.
“(b) If the United States or an Indian tribe declines to pay a fee or expense, or the board determines that the United States or the Indian tribe is likely to decline to pay a fee or expense, the board may do any of the following:
“(1) Initiate appropriate action to collect the fee or expense, including any appropriate enforcement action for failure to pay the fee or expense, if the board determines that federal or tribal law authorizes collection of the fee or expense.
“(2) Allocate the fee or expense, or an appropriate portion of the fee or expense, in accordance with Section 1540. The board may make this allocation as part of the emergency regulations adopted pursuant to Section 1530.
“(3) Enter into a contractual arrangement that requires the United States or the Indian tribe to reimburse the board, in whole or in part, for the services furnished by the board, either directly or indirectly, in connection with the activity for which the fee or expense is imposed.
“(4) Refuse to process any application, registration, petition, request, or proof of claim for which the fee or expense is not paid, if the board determines that refusal would not be inconsistent with federal law or the public interest.”
[13] An acre-foot is “[t]he volume of water, 43,560 cubic feet, that will cover an area of one acre to a depth of one foot.” (American Heritage Dict. (2d college ed. 1982) p. 75.)
[14] Regulation 1066, subdivision (a) provided: “A person who holds a water right permit or license shall pay an annual fee that is the greater of $100 or $0.03 per acre-foot based on the total annual amount of diversion authorized by the permit or license.” (Cal. Code Regs., tit. 23, § 1066, subd. (a), Register 2003, No. 52 (Dec. 23, 2003).)
[15] Plaintiff California Farm Bureau Federation (Farm Bureau) asserts it is authorized to take judicial action to protect the rights of farm families that hold water rights subject to the fees imposed by Senate Bill No. 1049 (2003-2004 Reg. Sess.) and the emergency regulations. The individuals named in its complaint hold water rights and have been assessed the section 1525 fees. Plaintiff Northern California Water Association represents over 70 agricultural water districts within the Sacramento River Basin, some of which hold water rights. Other members receive water under contracts with the Bureau of Reclamation, and others operate hydroelectric plants licensed or regulated by the Federal Energy Regulatory Commission.
Plaintiff Central Valley Water Project Association represents the interests of some 300 agricultural and municipal districts, agencies and communities within the Central and Santa Clara Valleys that have contracts for water from the Central Valley Project.
[16] The terms “payor” and “payer” are synonymous and are used variably in case law.
[17] The terms “burden of proof” and “burden of persuasion” are synonymous. (1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and Presumptions, § 3, p. 157.)
[18] The “burden of producing evidence” has also been referred to as the “burden of production” and the “burden of going forward.” (Sargent Fletcher, supra, 110 Cal.App.4th at p. 1667.)
[19] Plaintiffs do not challenge the one-time fees set forth in section 1525, subdivision (b).
[20] This case does not involve a special assessment or a development fee, two types of fees that are routinely challenged under Proposition 13. (Prof. Scientists, supra, 79 Cal.App.4th at p. 944.)
