June 30, 2014

Farmer sues Merced Irrigation District over water rights

Millions of dollars and thousands of gallons of irrigation water are potentially at stake in a civil trial that opened Monday involving several prominent Merced County farmers and the Merced County Irrigation District.

Millions of dollars and thousands of gallons of irrigation water are potentially at stake in a civil trial that opened Monday involving several prominent Merced County farmers and the Merced Irrigation District.

The lawsuit, filed by Michael Gallo, owner of the Gallo Cattle Co., seeks at least several million dollars in damages and access to MID water for his Livingston-based farm, Bear Creek Ranch. The specific amount of damages sought by Gallo could not be confirmed Monday. The complex trial is scheduled to end by July 25.

The MID and Hunter Farms, owned by Wil and Scott Hunter, are named as defendants in the lawsuit.

Gallo declined to comment on the case Monday, as did MID spokesman Mike Jensen.

A jury of nine women and three men heard opening arguments Monday in Merced Superior Court before Judge Donald J. Proietti.

The heart of the dispute centers on a nearly century-old contract that was signed in 1918 by Merced County and the Bloss Land Cattle Co., which owned the ranch now owned by Gallo. The lawsuit seeks to settle a dispute over the irrigation water that has historically spilled into a ditch, commonly known as the Livingston drain, that runs through Gallo’s land.

Gallo’s attorney, Marshall Whitney, told jurors that from 1919 until about 2003, MID put thousands of acre-feet of water into the Livingston drain for the owners of Bear Creek Ranch to irrigate their crops. In the lawsuit, Gallo says he received more than 5,000 acre-feet of water each year. MID disputes that amount.

Irrigation water is measured in acre-feet, the amount of water it takes to cover an acre of land a foot deep, or about 325,900 gallons.

Whitney said the Bloss agreement required MID to put water into the ditch on Gallo’s property.

However, in 2003, a small dam, commonly known as a weir, was placed on a neighboring property owned by Hunter Farms, upstream from Gallo’s property. Gallo’s property stopped receiving irrigation water it had previously received. Whitney said MID sold Hunter Farms irrigation water that should have gone to Gallo.

“Mr. Gallo lost a very valuable asset in 2003,” Whitney told jurors. “That is why Mr. Gallo is here ... Water is power. Water is very valuable.”

MID essentially changed the rules without consulting Gallo and “just decided that all of the water was theirs,” Whitney told jurors.

MID contends the contract in question never guaranteed water would flow to Bear Creek Ranch, and that all of the water that did go to that property was due to spillage and runoff.

MID’s attorney, David Harris, noted that Gallo is not a member of the irrigation district, which he called a critical point. All of the water that flowed to Gallo’s property was essentially a bonus, Harris said, not a contractual obligation.

“This is about a very large ranch that for years has received water for free, water all his neighbors had to pay for,” Harris told the jury. “They (Gallo) would like you to determine that they should get free water for all time.”

Harris told jurors the Bloss agreement was reached to eliminate a specific flooding problem that existed in the area at that time but that has since been solved.

Harris said Gallo’s property received the irrigation water in question only because the ranch operated for decades downstream from other MID farmers who were using water inefficiently.

Since the 1980s, Harris said, farmers and MID have become more sophisticated in their use of water. Computer technology changed irrigation practices dramatically, he said, helping all farmers use water more efficiently. Such technology helped MID “plug leaks” in its system, which drastically reduced the amount of water spilled into the Livingston drain.

“They (Gallo) claim that MID does not have the right to reduce inefficiencies, that we don’t have a right to recapture our water and, instead, that we need to let that water flow (to Gallo) for free,” Harris said. “We contend that MID water is for MID growers who’ve paid for the rights and the infrastructure and that we not only have the right to reduce inefficiencies, but an obligation to do so.”

Testimony resumes today in Merced Superior Court.

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