Mojave Pistachios Fights for Survival, Seeks to Prevent Groundwater Pumping Shutdown by IWVGA

In a high-stakes battle for its very existence, Mojave Pistachios, a 1,600 acre privately owned pistachio farming operation in eastern Kern County, is asking a California judge to prevent the Indian Wells Valley Groundwater Authority (IWVGA) from shutting off the pumps that bring groundwater to its 215,000 pistachio trees. Without this water the trees will die.

On Friday, June 14, the Superior Court of Orange County is expected to rule on whether to grant the IWVGA’s motion for a preliminary injunction that, if granted, will directly cause the death of 1,600 acres of trees and shutter a locally owned, private farming operation.

Mojave Pistachios purchased and planted its land in the Indian Wells Valley (IWV) starting in 2011 and 2012, respectively, prior to implementation of the Sustainable Groundwater Management Act (SGMA) and in accordance with applicable laws and local zoning ordinances. The first commercial harvest was completed in 2020, according to a declaration by farmer Rod Stiefvater in opposition to the injunction, and the orchards are expected to produce over 3,000,000 pounds of pistachios this year, with peak production reached in 2030.

In a series of ongoing legal battles, agriculture and business groups have argued that the IWVGA’s allocation of zero native groundwater to Mojave Pistachios and the imposition of an exorbitant replenishment fee of $2,130 per acre-foot of water is an intentional move to kill agricultural development in the valley.

Mojave Pistachios and other water users in the valley have argued the IWVGA’s unprecedented replenishment fee is unjust because it will only fund the possible purchase of a water right entitlement, not the water importation pipeline project which is required to convey imported water into the Basin. The pipeline cannot credibly be expected to ever be financed or built considering the quarter billion-dollar price tag and the terrain and environmentally sensitive habitats it would traverse.

In spite of the question of whether the IWVGA is depriving Mojave Pistachios of its water rights, a California Court of Appeal in Orange County found that this landowner cannot challenge the (lack of) water allocation set by the IWVGA without first paying the pumping fees, which today amount to over $30 million for just three years of irrigating the trees.  

No farmer, including Mojave Pistachios, could ever pay this irrigation fee. Now, the court will decide whether to turn off the water. Turning off the pumps will mean the loss of decades of productive life of tens of thousands of trees. There will be no way to undo this decision; no remedy available to the farmer who owns dead trees.

As the court readies itself to decide the fate of Mojave Pistachios and its trees, the court must take into consideration several key facts about groundwater in the Indian Wells Valley basin taken from a series of expert legal declarations:

Representing Mojave Pistachios, Scott Slater, with Brownstein Hyatt Farber Schreck, LLP argues that it is unnecessary for the court to decide whether to stop Mojave Pistachios from maintaining its orchards because no one is being harmed by their current water use, with negligible changes in water levels at their ranch. Further, Mojave Pistachios is making great efforts to satisfy its debt to IWVGA and to propose alternative management solutions.

According to Anthony Brown of Aquilogic, the “Indian Wells Valley Groundwater Basin would not be materially harmed by the continued production of groundwater by [Mojave Pistachios] for at least the next 16 years, whereas a cessation of pumping or payment of exorbitant pumping fees would irreparably and catastrophically harm [Mojave Pistachios].”

As the IWVGA argues their views on the limit on available water, it has become evident that the modeling used for their Groundwater Sustainability Plan (GSP) is not an accurate assessment of the basin’s sustainability. A new analysis by a technical working group of experienced hydrologists demonstrates there is more fresh groundwater in storage than Lake Mead and the sustainable annual recharge is conservatively 56% higher than what IWVGA estimated and based its Replenishment Fee upon. With millions of acre-feet of freshwater available for recovery, the plan to spend hundreds of millions of dollars to build a pipeline through sensitive desert habitat is unnecessary.

In fact, if a water importation system is the goal, the IWVGA has no concrete plan. Rodney Smith, President of Stratecon Inc, says “It is completely implausible to imagine the IWVGA will be able to finance its proposed water project.” Moreover, “The IWVGA has no assured source of financing…Securing $30 million from Mojave does nothing to solve for the more than $150 million in additional project costs.”

“As we have offered, the bottom line is that the Court can save 1,600 acres of pistachio trees, while it continues to oversee a solution for the entire basin. For unknown reasons, the IWVGA insists on relying upon its private groundwater model to support the harshest outcomes, rather than submit to a transparent and court evaluation, using best practices. Actual data, including measured water levels tell us there is exponentially more fresh water in the basin than the IWVGA wants to admit, and no risk of harm to the basin. It is no secret the IWVGA wants to end agriculture in the valley; the retribution against farmers by the IWVGA must be stopped,” added Slater.

The plight of agriculture in IWV should serve as a warning to agricultural interests across the state. SGMA’s intent was to provide a reasonable, democratic process to address the real need to protect groundwater supplies in balance with the economic realities of farmers and other water users-over the next two decades. In the IWV, where science tells us groundwater supplies abound, agriculture is being killed on a schedule that far outpaces anything contemplated under SGMA.  Experts agree there is a better way to manage groundwater in IWV that brings all interests together in a fair process that has positive outcomes for all parties-hopefully the court will grant Mojave Pistachios the right to keep their trees alive long enough to see such an outcome.

A Groundwater Authority is bankrupting farmers while the courts and State idly watch

Lacking transparency and mired in financial mismanagement, the Indian Wells Valley Groundwater Authority continues to abuse the Sustainable Groundwater Management Act (SGMA).

For almost a decade, the Authority has been hiding behind a “confidentiality agreement” with the United States Navy to deny the public documents that support its Groundwater Sustainable Plan (GSP). The Authority has refused to open their books or produce solid data. It has misused public funds, not listened to reliable counsel, and ultimately and intentionally has used SGMA to pick winners and losers in the Valley.

The Authority has not hidden however, their intention of pushing agriculture out of the Valley. By imposing an absurd replenishment fee of $2,130 per acre foot, their intent is obviously to bankrupt existing agricultural operations. It is a taking of private property via exorbitant fees that cannot be absorbed in business operations.

The Authority’s list of “wrongdoing” has now expanded further, as it has become evident that the modeling used for their Groundwater Sustainability Plan (GSP) is not an accurate assessment of the basin’s sustainability.

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Touting a sustainable yield of 7,650 acre-feet per year, in 2021 the Authority’s GSP allocated ZERO native groundwater to Mojave Pistachios and very little to other farmers.

The Authority then implemented the outrageous “replenishment” fee of $2,130/acre-foot to keep Mojave’s 1,600 acres of trees alive and bearing fruit.

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California’s Department of Water Resources signed off on this GSP that appears to be predicated on a faulty study of the basin, paid for by the Navy.

Missing from the Authority’s analysis was a fair consideration of the massive groundwater Basin and the total volume of freshwater that is in storage. With millions of acre-feet of freshwater that is readily available for recovery, the Authority’s plan to spend hundreds of millions of dollars to build a pipeline through the desert is revealed to be completely unnecessary. The new analysis reveals dramatically different findings than what the Authority published and that which it based the fee upon.

First, there is substantially more water in the basin than the Authority wants to

admit, more than 40M acre feet of water – twice the size of Lake Mead when its

full. That’s more than 13 trillion gallons. A stark contrast to the 1.75 million AF

estimated in the Authority’s GSP.

The new estimate was conducted by a group of experts from six professional hydrogeological science and engineering consulting firms. The firms were appointed by a consortium of municipal, agricultural, and industrial users who collectively accounted for more than 80% of the groundwater pumping during the 2022 Water year.

The analysis also estimates approximately 40 million acre-feet of potable groundwater remaining in storage within the Indian Wells Valley.

These new findings raise significant questions about the management of the Indian Wells Valley Groundwater Basin. The Authority’s pattern of behavior that suggests they are using poor science to advance an adversarial agenda against agriculture and private industry. Further, they sometimes analyzed only smaller portions of the valley and were limited by the technology available at the time.

The data used for their groundwater model is dated and its accuracy in doubt. And to date, they have refused to make their model available to the public or allow others to peer review its accuracy.

With Mojave Pistachios and other agricultural operations facing destruction in a matter of weeks for lack of water, DWR must immediately step and ask more exacting questions of the Authority and its’ reliance on an – as yet – undisclosed model in to revisit their approval of this haphazard GSP that is punishing agriculture and industry and demonstrating that SGMA can be manipulated and bent to the will of a 2-1 majority.

Landmark SGMA Court of Appeals Ruling with Dangerous Implications for Farmers, Businesses and Taxpayers

On February 8, 2024, the Court of Appeal in Orange County issued the State’s first published appellate opinion interpretating the Sustainable Groundwater Management Act (SGMA) and the powers of a Groundwater Sustainability Authority (GSA). The opinion prohibits a Kern County landowner’s legal challenge to a GSA’s groundwater allocations because the landowner didn’t pay $8.5+ million per year in pumping fees.

The GSA granted ZERO annual allocation of groundwater to the landowner’s established 1,600-acre farm. The GSA determined that Mojave Pistachios’ overlying rights were “inferior” to other pumpers’ water rights, contrary to the Legislature’s declaration that SGMA preserved overlying water rights and California law.

The GSA’s expressed intent was to eliminate agriculture from the Indian Wells Valley by providing Mojave Pistachios with no allocation of native groundwater and a very limited allocation to other farmers that would end their farming in a matter of years.

The Court held that several challenges including takings of private property rights—are barred under the “pay first litigate later” doctrine because the landowner did not pay the GSA’s massive replenishment fee of $2,130 per acre-foot of groundwater pumped since 2021, which today amounts to a cumulative fee of over $25 million.

Contrary to SGMA’s Legislative intent, the Court allowed the GSA to determine that

landowners have inferior water rights as a basis to set a replenishment fee, without due

process, because the “pay first litigate later” doctrine shields the GSA’s entire action.

Under the opinion, the landowner cannot challenge the GSA’s decisions to award them zero

allocation or to impose a replenishment fee so large it will put them out of business.

This opinion will have catastrophic consequences for all California water rights’ holders and for SGMA implementation. If the opinion stands, public agencies across the state can shelter all manner of illegal conduct, including prohibiting groundwater pumping, taking water rights without payment, and imposing multi-million-dollar, unaffordable fees.

This ruling goes beyond GSAs and SGMA. Under the ruling, public agencies could adopt a

punitive fee designed to bankrupt a certain subset of customers or force them to move or

abandon their home or business.

The Court of Appeal acknowledges that its opinion is of statewide importance and a question

of first impression, inviting review by the California Supreme Court.

The GSA has filed for an injunction to bar Mojave from continuing to pump water while the

matter is litigated. That will deprive their orchard of water needed to sustain the life of the

trees. The need for immediate California Supreme Court Review is urgent.