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The fight between Imperial Valley farmer Michael Abatti and the Imperial Irrigation District over control of the district’s massive allotment of Colorado River water could be headed to the U.S. Supreme Court if Abatti gets his way.

He and his lawyers have announced that they have petitioned the nation’s highest court to take up the litigation that has dragged on since 2013.

The case’s legal questions deal with intricate nuances of water law, but the stakes are high. Abatti is seeking to have the country’s apex court hand control of IID’s water over to landowners, a move that would leave most of the valley’s water with a few larger agricultural operations. As the law stands, farmers have a guaranteed right to water delivery but not a special claim above other users like homes and geothermal plants.

The current power structure in the valley sees IID’s five-member board — which is elected solely by its water users without input from its electricity-only ratepayers — manage how water is distributed. According to section 106 of the California Water Code, the highest purpose of water in the state is domestic use, and agricultural irrigation comes second. IID estimates that about 97% of the water it delivers ends up on farms.

A trial court judge with ties to Abatti ruled in 2017 that local irrigators had a constitutionally protected right to water. An appellate court overturned that decision — and the California Supreme Court refused to hear the case — but the initial decision set off the legal fight that is now continuing in the nation’s capital.

“Review is also warranted given the exceptional importance of water rights in the West,” according to Abatti’s filing, which added that the state appellate court decision “ignores federal law, negates federally protected rights, and threatens billions of dollars of agriculture. It should be reversed.”

IID representatives did not respond by The Desert Sun deadline to requests for comment on the latest development in the litigation.

But, Norma Sierra Galindo, an IID board member, told The Desert Sun in 2020 that Abatti’s legal fight “is an ongoing effort by a special interest group that, for lack of a better term, is relentless in attempting to control the distribution of the water.”

Abatti’s argument relies on the 1980 Supreme Court case Bryant v. Yellen, another water decision involving IID.

According to Abatti’s petition, IID argued in that case “that it would be ‘wrong’ to conclude that ‘the District, not the landowners, owns’ the water rights.” The farmer’s recent petition accuses IID of switching its stance in the current case.

As first reported by the Calexico Chronicle, Abatti and one of his lawyers wrote in a release on Monday that “Abatti described the district’s reversal of its prior position on water rights as being politically motivated by non‐farming interests in the valley.”

Abatti is being represented by H. Christopher Bartolomucci from Schaerr Jaffe LLP in Washington, D.C., and Theodore A. Chester, Jr. from Musick, Peeler and Garrett LLP in Los Angeles, which is the firm that represented him on appeal in California.

After the state courts ruled in favor of IID, though, the district said it was now “undisputed” that IID is the “sole owner of the water rights used to supply water to the Imperial Valley from the Colorado River.”

Throughout the litigious battle, a citizen group calling itself the Imperial Valley Coalition for the Fair Sharing of Water has supported IID. That group has for years scoffed at Abatti’s use of the Bryant case, saying it took on a separate question and is not precedent that should decide this case.

“Bryant involved the singular question of whether the District was prohibited from delivering water for irrigation use to farms larger than 160 acres,” the coalition explained in an amicus curiae brief filed earlier in the legal proceedings.

The litigation in state court originated with a fight over IID’s Equitable Distribution Plan, which was its framework for decreasing the amount of water it delivered to various parties in times of drought. Both the trial court and appellate court found that plan unfair, and IID repealed it.

But, with an opportunity for direct control over the water in play after the trial court’s decision, Abatti has kept fighting.

He now is asking the U.S. Supreme Court to hear the case. Four of the nine justices must agree to the request, which does not happen very often. According to an analysis by Supreme Court Press, a court document preparation company, the success rate for these petitions wavered between 2.1% and 4.2% in a study period between 2014 and 2017.

The dynamics of the court shifted in recent years, however, as it took a hard right turn after Republicans successfully blocked a nominee from then-President Barack Obama and after former-President Donald Trump was able to seat three justices. There is now a 6-3 conservative majority.

Mark Olalde covers the environment for The Desert Sun. Get in touch at molalde@gannett.com, or follow him on Twitter at @MarkOlalde.



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