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Ojai attorney: Ventura’s pueblo rights claim doesn’t hold water

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Perry Van Houten, Ojai Valley News senior reporter

An Ojai lawyer says the city of Ventura’s claim that it holds a “mega-right” to water in the Ojai and Upper Ojai groundwater basins is based on conjecture and not fact.

Attorney Andrew Whitman, who represents cross-defendants overlying the basins, said Feb. 9 Ventura’s allegation of pueblo water rights was made under “information and belief.”

“Information and belief is like, ‘yeah, we’re not quite sure but we’re saying it anyway,’” Whitman told the Ojai Valley News. He called the claim “fabricated.”

His argument, presented at the latest status conference in the Ventura River Watershed Adjudication lawsuit, seemed to stick with the judge hearing the case.

Los Angeles County Superior Court Judge William F. Highberger told lawyers for the city of Ventura that their pueblo water rights allegations “probably are defective” and told Whitman he could file a motion to strike the claims from the city’s complaint.

If Highberger were to grant the motion to strike, it would give Ventura leave to amend the complaint and to come back and specify the documentation backing up the allegation.

Without documentation, Ventura is playing “hide the ball,” Highberger said.

As Whitman explained, the city occupies land that was once part of Mexico, which had a system of missions, presidios and pueblos.

While missions served the native populations, presidios were military units and pueblos were designated as places where property and water would be provided for settlers.

California recognizes only seven pueblos, Whitman said. “San Buenaventura is not mentioned.”

The city of Los Angeles was a successor to a Mexican pueblo and successfully laid claim to groundwater in the San Fernando groundwater basin. “That’s what the city of Ventura is trying to argue they can do,” Whitman said.

That the city has riparian rights over the Ventura River is not disputed, according to Whitman. But the city wants to go beyond the river and say it also has rights to the groundwater in Ojai and Upper Ojai.

“If they in fact had pueblo water rights, they would be able to claim, at least to some extent, an entitlement to Ojai groundwater,” Whitman said. “You can read every page of history that’s ever been written and not see one mention of the city of Ventura ever having been a pueblo.”

“The idea that it ever existed is preposterous,” said Whitman, who’s also a cross-defendant in the case.

Even if the city were a pueblo, it would have had to file an application with a commission set up by Congress to adjudicate property claims that arose under Spanish or Mexican rule. If not presented and recognized by the commission, those claims expired, Whitman said.

“Once you eliminate pueblo rights, they really have no standing to come in and say they have rights and can adjudicate how much water overlying landowners can use,” Whitman said. “My position is if there are no pueblo rights, the city of Ventura’s water rights are confined to the Ventura River and the Ventura River water basins.”

During the Feb. 9 status conference, Highberger said the manner in which the city of Ventura has pleaded its case is “inadequate,” and instead of just saying it has pueblo water rights, the city needs to point to the documentation stating that fact.

Highberger said the appropriate thing for Whitman to do was file a motion to strike the claim that the city has pueblo rights and for the city to file an amended complaint.

“So that’s your victory for the day, Mr. Whitman,” he said. “You should be quite happy, actually, because you’ve landed a target better than most of the other cross-defendants.”

On Feb. 16, Whitman told the OVN in an email he planned to file a motion to strike, but first he needed to meet and confer with attorneys for the city of Ventura and ask that the city “either voluntarily strike allegations from the third amended cross-complaint that relate to the claim of pueblo water rights or alternatively agree to amend the cross-complaint to include specific facts identifying the documents that create or establish the purported pueblo rights.”

He expected the meeting to occur this week and the motion to be filed shortly thereafter, unless the city agreed to amend the complaint.

 

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