Oakdale Water Sale Illegal, says Attorney

“It will probably be some shady deal again.”

Oakdale Irrigation District (OID) water attorney Tim O’Laughlin is fond of reminding people he’s one of the best water attorneys in the west. During a recent OID Board meeting, he told Director Linda Santos that he’s also an expert on the California Environmental Quality Act (CEQA).

It was a bold statement from a man who just last year not only lost OID’s CEQA case in a Modesto courtroom, but was reprimanded by Judge Roger Beauchesne for using ad hominem arguments. Later, Judge Beauchesne commended OID’s opponents for providing a “public service” when suing the district.

Rice farmer Robert Frobose, whose Oakdale Groundwater Alliance prevailed in last year’s lawsuit, routinely shows up at OID Board meetings with a sheaf of evidence documenting OID’s violations of state and federal law. In virtually every case, three OID Board members nod politely and ignore his warnings.  The other two board members, Gail Altieri and Linda Santos, argue in vain that OID should follow the law.

O’Laughlin’s responses to Frobose generally include an actor’s repertoire of soft chuckles, head shakes, shrugs, and bulging eyes—all this despite Frobose having been on the winning side in last year’s court case.

It’s been clear for a long times that neither O’Laughlin nor the majority board members care whether OID’s actions are legal. Their position all along has been, “If you don’t like it, sue us.” Given the expense of litigation, OID is almost always secure in the knowledge only a tiny few people can muster the will and money to take the district to court, even when the case against the district is overwhelmingly in the plaintiff’s favor.

Lately, though, OID’s attempts at illegal water sales have been so transparent and egregious they’ve attracted attention from far outside the district. The latest rumble of discontent has come from the Natural Resources Defense Council (NRDC), one of the most powerful and respected environmental organizations in the world.

In a letter dated February 15, 2018, NRDC Senior Water Attorney Doug Obegi wrote OID, the Department of Water Resources (DWR), the U.S. Bureau of Reclamation, San Luis and Delta-Mendota Water Authority (SLDMWA), and South San Joaquin Irrigation District (SSJID) warning them of, “potential violations of state and federal law,” regarding a water sale proposed by OID. In essence, Obegi objected to OID’s characterization of the sale as, “meeting 31-day April-May flow objectives,” for the Bay-Delta.

On March 7, Obegi sent another letter saying he hadn’t yet received a response to the February 15 missive, and, “I wanted to reiterate our concerns based on a second proposed water transfer agreement between OID, SSJID, DWR, and SLDMWA…Such an approach is unlawful for the reason expressed in my email from last month.”

Robert Frobose has told the OID Board of Directors repeatedly their water sales, known as “transfers,” are illegal, but has been ignored, even after OID’s court losses. Now, NRDC has fired a warning shot across OID’s bow, emphasizing its concern about the illegal transfer.

Despite an almost mathematical certainty OID would lose in court against NRDC, it’s very unlikely Obegi’s letter will stop OID’s water sale. It’s been clear for years now that OID’s majority board members and management are driven by a few very wealthy and powerful farmers who want water at below cost, and don’t care a fig about whether or not OID obeys the law. Those farmers have been able to maintain a board majority, and there are no signs for change any time soon.

Lawsuits aren’t a deterrent for these farmers for the simple reason they don’t absorb the costs. Instead, the district not only delivers below-cost water, it subsidizes all expenses associated with the deliveries, including legal fees incurred when the out-of-district water sales that pay for district management and operations are ruled illegal.

Back in 2016, when OID was attempting yet another of the out-of-district water sales it needs as a result of failure to charge district farmers enough to pay costs of overhead, Elizabeth Kiteck, Water Divisions Chief at the Bureau of Reclamation, said of the OID proposal, “It will probably be some shady deal again.”

Thus far, OID management and three of its five members of the Board of Directors seem more than willing to continue their “shady deals” and “Sue us” strategy for selling water. But if Doug Obegi and NRDC call their bluff, they will almost certainly rue the day they entered the courtroom against one of the true giants of environmental law. The Natural Resources Defense Council can’t be bluffed, nor can it be worn down.