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1 Brian C. Leighton, CA BAR #090907 LAW OFFICES OF BRIAN C. LEIGHTON
2 701 Pollasky Avenue Clovis, CA 93612
3 Telephone: (559) 297-6190 Facsimile: (559) 297-6194
4 Email: [email protected] & [email protected]
Attorney for Plaintiff
r ' ( ,
FiLED Superiur Court Oe CaiifofTiia~ S.at:.oramet!tc
09Jn1/2015 emeclit'ia D.. D 1.:1:1--____ ---1_ ; ~puty,
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
DEBBIE REID O'GORMAN,
Plaintiff,
vs.
CALIFORNIA STATE WATER RESOURCES CONTROL BOARD
Defendant.
) Case No.: 3t.( -ZD 15 -00 19313 ) ) COMPLAINT FOR INVERSE ~ CONDEMNATION; CONSTRUCTIVE ) TRUST;TAEJNGS;DECLARATORY ) AND INJUNCTIVE RELIEF; AND JUST ~ COMPENSATION
) ) ) ) ) ) )
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20 Plaintiff, Debbie Reid O'Gorman, alleges upon information and belief as follows:
21 I. PARTIES
22 1. Plaintiff, Debbie Reid O'Gorman (hereinafter referred to as "Plaintiff' or
23 "O'Gorman") is an individual who resides as 3225 Lake County Highway, Calistoga, County of
24 Napa, State of California.
25 2. Defendant, the California State Water Resources Control Board (hereinafter
26 "SWRCB", "Board" or "Defendant Board") was established by the Legislature as an agency
27 within the California Environmental Protection Agency, pursuant to California Water Code §
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. ' 1~~=---------------------------------------------------------------4 ,, <,.:% ,:~, . COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; ~:.) /' DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 175. Pursuant to California Water Code § 179, and others, the powers and duties of said Board
2 include permits and licenses to appropriate water, to revoke said permits or licenses, and exercise
3 other duties regarding water in the State of California, as found throughout the California Water
4 Code. Pre-existing 1914 water rights have superior claims to post 1914 water rights. The
5 principal offices of the Defendant Board are located in the County of Sacramento, and thus
6 venue is appropriate in the County of Sacramento.
7 3. All of the Defendant Board's actions complained of herein were taken by the
8 Defendant Board's policymakers who exercised final authority over the actions complained of
9 herein and therefore are the acts of the Defendant Board as it is an agency of the state vested
10 with power of "eminent domain."
11 II. COMPLIANCE WITH GOVERNMENT CODE
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4. On November 20,2014, Plaintiff filed an underlying claim with the State of
California Victim Compensation and Government Claims Board with exhibits substantiating the
claim underlying this action. The regulatory takings/inverse condemnation claim G 621919 was
rejected by letter on March 10,2015. Because the Board is a defendant on the claim, it is not
qualified to act in a capacity as a disinterested party and arbiter of the underlying dispute.
5.
6.
III. FACTUAL BACKGROUND
Plaintiff realleges, as though fully set forth, ~~ 1 through 4 above.
From on or about 1882 through the present, Plaintiffs ancestors (The "Tubbs")
owned land in the immediate vicinity of the headwaters of the Napa River, then known as
Paulson Creek, and now known as Kimball Creek. Plaintiff s ancestors then and Plaintiff
O'Gorman now, continue to own a parcel of land consisting of approximately 36.4 acres (the
Home Place) which was in the near vicinity of the other parcels, and said Home Place parcel hel
water and easement rights to all other parcels as described in the first sentence of this paragraph,
including the City of Calistoga's (hereinafter the "City") later acquired parcel (described below).
Plaintiff O'Gorman has resided at the "Home Place" since her birth in 1953.
2 COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS;
DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 7. Appurtenant to these lands were the rights to divert and use water flowing from
2 the creek's upper watershed as well as the flow from certain springs of water that fed Paulson
3 CreeklKimball Creek during the summer months which had been purchased by "Tubbs" in the
4 early 1880s. The beginning of Kimball Creek and the headwater ofthe Napa River begins with a
5 spring located within a circular area ten feet in diameter located in the middle of the streambed,
6 which is owned, together with connecting easements to the Home Place by Debbie O'Gorman,
7 thereby qualifying her as the last riparian owner of land located on the Upper Napa River
8 watershed.
9 8. All other riparian rights to the Upper Napa River watershed were purchased,
10 beginning in 1882, by Alfred L. Tubbs (including the right to construct dams, tanks, ditches,
11 flumes and pipelines to store and convey water from above and on the City's parcel appurtenant to
12 the water found within the Mt. S1. Helena watershed as it drained from the lands surrounding
13 Kimball Creek, which is the headwater of the Napa River.
14 9. In 1883, Alfred L. Tubbs also, and/or in conjunction with what is stated in ~ 10
15 below, sought to obtain a water source for the Home Place. On March 8 ofthat year, Mr. Tubbs
16 acquired from James M. Wright and J.R. Wright (as guardian of the minor Evey children) the
17 right to divert the waters of Kimball Creek to what was then known as the Home Place for
18 domestic and irrigation uses through a pipeline across their properties. The point of diversion
19 was a dam known as the Wright or Poulson Barrier. Both indentures were recorded against the
20 servient estates and provided that the rights conveyed to Mr. Tubbs were intended to be for the
21 benefit of his heirs and assigns - including Plaintiff, although not yet born.
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10. In 1883, Pliney W. Reed was the owner of a property which was located between
the Wright-Poulson Barrier and the Home Place, on which Kimball Reservoir was later
constructed, and which is now owned by the City. On March 9, 1883, Mr. Reed recorded a
covenant in favor of A.L. Tubbs, granting to Mr. Tubbs:
The privilege of diverting the waters that flow down the creek through the "Wright or Poulson Barrier" from their natural course,
3 COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS;
DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
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and conveying them by a pipe placed beneath the surface of the ground to the residence now being erected by [Tubbs].
The indenture/negative easement went on to provide that Mr. Reed bound himself, his heirs,
executors and administrators in exchange for Mr. Tubbs giving Mr. Reed a half-inch tap in the
pipeline between Kimball Creek and the Home Place,
from which I may be permitted to draw water for domestic family use and for my stock, but not for irrigation or for sale, so long as the supply will permit.
According to the March 9, 1883 indenture, Mr. Reed granted to Mr. Tubbs the right to divert all
the waters of Kimball Creek, in exchange for Mr. Tubbs allowing Mr. Reed to tap into the
pipeline that Mr. Tubbs constructed from the Wright-Poulson Barrier and springs located above,
to the Home Place. By that transaction, Mr. Tubbs acquired the exclusive right to divert water
from Kimball Creek at the Wright-Poulsen Barrier, vis a vis the owners ofthe Reed property.
11. Included within the deeds to properties not owned by Tubbs, but intervening
14 between Tubbs' upper water sources and his lower lands and his Home Place were grants of
15 water and pipeline easements to Tubbs providing Tubbs the rights of way to provide and
16 facilitate the transfer/delivery of water to his lower lands and his Home Place parcel. Tubbs paid
17 for these rights. The owners of those parcels, who would otherwise have riparian water rights,
18 relinquished them to Tubbs. These same deeds contained covenants which restricted the owners
19 and subsequent owners of these properties from diverting water for irrigation use or for sale to
20 others.
21 12. Although most of the "Tubbs" lands had been sold off, the water rights and the
22 easement rights (including restrictions) still run with these lands to Plaintiff's ownership via the
23 riparian and inherited rights associated with Plaintiff's property and the rights to use the water
24 that were purchased by "Tubbs," which thereafter vested in Plaintiff, as a third party sole
25 beneficiary ofthe Tubbs estate. At all times Tubbs, Tubbs' heirs and PiaintiffO'Gorman have
26 paid and continue to pay property taxes on said water easements and rights and filled notices of
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28 4
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 intent to preserve said easement rights. These are pre 1914 water rights, which still exist today,
2 and said easements have never been abandoned.
3 13. Plaintiff alleges that as a result of the above-mentioned transaction the riparian
4 right associated to what is now the City's reservoir parcel (APN 017-060-010 (as well as others
5 described below) was alienated from said parcel and was inherited by Debbie O'Gorman by way
6 of a series of successive Administrator deeds filed with the Napa County Superior Court.
7 14. On May 31, 1931, Bank of America acquired by foreclosure, title to one of these
8 parcels, but not the Plaintiff's parcel, which Bank of America acquisition related to Napa County
9 property number APN 017-060-010. That parcel's water rights and negative easement restrictin
10 water diversion from any party other than Tubbs or Tubbs' heirs, had been sold to Tubbs in
11 1883, with subsequent owners - including the City -- being foreclosed from taking water for
12 irrigation or for sale because of Tubbs' water easements he had retained. This parcel purchased
13 by the City on February 26, 1939, contained rights and restrictions between Tubbs' Home Place
14 parcel and his upper water sources and was one of the parcels whose water rights had been sold
15 to Tubbs in 1883, and, at the same time, gave Tubbs the right to restrict the future owners from
16 diverting water for irrigation or for sale. From on or about 1931 through on or about 1939, the
17 City was purchasing water from Tubbs for its municipal purposes with water derived from wells.
18 15. On August 10, 1938, the City of Calistoga, applied to the State Division of Water
19 Resources Department ("DWRD"), a predecessor state agency to the Defendant Board, for water
20 to fill its planned, but still-to-be-built, reservoir on the same Bank of America parcel acquisition,
21 APN 017-060-010, falsely claiming that the water sought by the application "was unappropriated
22 so far as was known" for municipal purposes, ("DWRD" Application No. 9376); however the
23 City parcel did not have riparian water rights. Said riparian water rights had been previously
24 alienated from said City's parcel and via the negative easement belonged to Tubbs, and were no
25 longer riparian once they had been sold to Tubbs in 1883.
26 16. That City application set forth requirements for direct diversion of one cubic foot
27 per second from November 1st through May 1st of each year (357 acre-feet) and for storage of
28 5
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 315 acre-feet of water annually. The "Diversion Works" were described as a dam 60 feet high
2 and 275 feet long at the top forming a lake with a surface area of 13.6 acres.
3 17. In November 1938 the City mail-served individuals which it thought would be
4 affected by its proposed diversion of water and published its Notice of Application to
5 Appropriate Unappropriated Water. The Tubbs, however, were not mail-served the notice.
6 18. The Tubbs (Chapin and Merrit Reid Tubbs, Plaintiffs grandparents) by their
7 attorney contacted the Division of Water Resources Department) to protest the application on
8 January 5, 1939.
9 19. The City completed its purchase of the parcel from Bank of America on February
10 26, 1939 "Subject to Rights of Way, Restrictions, Reservations and Easements of Record,"
11 which subject easements reserved to Tubbs all water rights associated to the City's reservoir
12 parcel.
13 20. The City, having been made aware of Tubbs' ownership interest in the parcel's
14 water rights as well as the negative easement restrictions which would have prohibited the City
15 from building its proposed dam, believed it became necessary for the City to either negotiate a
16 contract that would allow for the diversion and transfer of water for sale for municipal purposes
17 only, or commence an eminent domain proceedings against the Tubbs' water rights and deed
18 restrictions. The City decided to negotiate a contract with Tubbs.
19 21. On or about November 2, 1939, Tubbs and the City entered into a recorded water
20 rights transfer agreement ("WRA") which held in abeyance the terms of the 1883 negative deed
21 restriction owned by the Tubbs prohibiting water diversion on the property the City purchased
22 from Bank of America in foreclosure, APN 017-060-010. The WRA also provided that Tubbs
23 was giving up his right to build dams above the City parcel. The WRA pertained to municipal
24 use only within the City's limits. The negative easement restricting the sale of water outside the
25 City's limits remained in force and prohibited the City from selling water anywhere else.
26 22. A separate indenture/easement authorized the City to install a water main over the
27 Tubbs lower lands for a consideration of$1.00 and a option/right granted to Tubbs to hook up
28 6
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 one (1) two inch pipeline to the City's water main in perpetuity without restriction as to type of
2 use for the right of way over the Tubbs lands, but not for the use of any other rights.
3 23. The WRA executed by the City made clear that the City acknowledged that Tubbs
4 was the upper and lower riparian owner, appropriator and otherwise at the time the contract
5 was signed in 1939. As late as 2007, the water contracts negotiated by the City with vineyards
6 defined and incorporated by reference the Tubbs agreement within each as a water rights
7 transfer contract, meaning that no title to the water rights was obtained by the City as transferee
8 of Tubbs exclusive right to divert water on the City's parcel. In essence the Tubbs WRA was
9 also a licensing agreement, whereby the City was allowed to divert water for the lifetime of the
10 Tubbs from its parcel, but only for the City within its place of use; that is City residents.
11 24. Thereafter Plaintiffs grandmother, MeITit Reid Tubbs passed away in 1959,
12 leaving all assets of the estate to the Plaintiffs mother, including the Home Place, together with
13 all other assets, known and unknown.
14 25. Plaintiff s mother and the City continued with the Tubbs' contract during the
15 Plaintiffs mother's lifetime in what could now be characterized as an "implied exclusive
16 licensee agreement, "based upon the original 1939 water rights agreement, created by operation
17 oflaw that applied only to the 1939 City limits boundaries which were also the City's Place of
18 Use ("POU") approved by the SWRCB.
19 26. Plaintiffs mother died on September 7, 1981, leaving Plaintiff 0' Gorman as the
20 sole heir to the Tubbs' estate, including all said water rights and easements described above, and
21 the Home Place parcel, approximately 36.4 acres, and the water diversion rights alienated from
22 the City's parcel in 1883.
23 27. On March 1,2001 the California State Water Resources Control Board filed an
24 Administrative Civil Liability Complaint (Ref: 2001 3-1 Gov't Claim) against the City of
25 Calistoga for taking more water than authorized and expanding its service area beyond the POU
26 authorized by its License 9615 by delivering water to approximately 60 customers outside the
27 service area found to be about 0.8 miles outside the authorized POU for the City's water projects.
28 7
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 28. On March 8, 2001, the Defendant Board gave the City a 60-day written demand
2 that it file a petition to change its POU in order to legitimize its customer base located outside its
3 City limit POU. Thus, rather than perform its duties to halt illegal use outside of its POU, which
4 would have coincidentally halted the City's breach of the negative easement associated to its
5 parcel to O'Gorman's favor, the Defendant Board and the City formed a conspiracy to skirt the
6 legal requirements of the law and the terms of the City's water licenses rather than conform to
7 their restraints by the issuance and enforcement of a Cease and Desist Order and termination of
8 the illegal use of water outside the City's POU. The City is separately sued in the Napa County
9 Superior Court, Case No. 26-66119. The case against both the City and the Board in a first
10 amended complaint filed in Sacramento County Superior Court on August 6, 2014, Case No. 34-
11 2014-00164846. The Board had not yet denied Plaintiffs government claim. Both the Board
12 and the City moved to dismiss the Board from the suit; and the City filed a motion to transfer the
13 case to Napa County. The Sacramento County Superior Court dismissed the Board, and the case
14 was transferred to Napa County. Since now the Board has denied the government claim, this sui
15 is now filed in Sacramento County Superior Court. Plaintiff intends to move the Napa County
16 suit to Sacramento County and consolidate the two cases.
17 29. On March 29,2001 the City paid a $5,000.00 fine. However in order to legitimize
18 its outside ofPOU customer's beginning service, the City knew it would first have to apply for
19 permission to do so from LAFCO as per Government Code California Government Code Section
20 56133(e) unless it could be demonstrated that the City had been serving those customers before
21 2001.
22 30. In August 2001, Defendant Board and the City arranged to meet with each other,
23 producing a contact report for September 13,2001, indicating the SWRCB had requested copies
24 of the contracts that obliged the City to serve its customers outside its POU.
25 31. On September 27,2001, to justify the violation of its license terms prohibiting the
26 sale of water outside its POU boundaries, the City by letter of its then Water Superintendant, Mr.
27 Steve Anderson, submitted a copy of the Tubbs indenture/water transmission pipeline agreement
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COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 in November, 1939 to SWRCB, describing the document as etA water agreement dated
2 November 3, 1939, between the City and Chapin F. Tubbs regarding water use on the section of
3 water main between the City limits And Kimball Dam. "
4 32. Attached to the letter were records of City water sales made to customers located
5 outside the City limits dating back to 1955, one of which purchased seven acre feet of water in
6 one year which is enough water for mUltiple residential units or enough water to irrigate twenty
7 acres of crops. Plaintiff had no knowledge of this, and thus did not know the City was violating
8 the Tubbs agreements.
9 33. Upon receipt and review by the Board's Office of Chief Counsel, the Board was
10 put on notice that the City's vineyard customers had no rights under the Tubbs indenture to
11 receive City water and that the City had been violating the terms of its SWRCB appropriative
12 licenses dating back to 1955 by selling water outside its POU and that it was not being used for
13 municipal purposes.
14 34. On December 13,2001, SWRCB acknowledged receipt of the letter and knew
15 or should have known that no users, other than Tubbs/O'Gorman had a right to hook up to the
16 City's water main because the indenture provided for only one 2" connection.
17 35. On January 11,2002, at the suggestion o/the SWRCB, the City submitted its
18 application for an expanded POU to the SWRCB and in subsequent communications the City
19 justified its unlicensed diversion and use by stating to the SWRCB that it was bound to do so
20 because of an "old water agreement," which was the same agreement attached to the September
21 27, 2001, Anderson letter, which provided no obligation nor right upon the City's part to provide
22 water to anyone but the Tubbs.
23 36. Color-coded parcel maps submitted more than three years after the City's POU
24 application first filed in 2002, admitted that the City had been illegally providing these vineyard
25 parcels with irrigation water for many years in violation, and continues to date to violate, of the
26 City's water license terms and the Tubbs agreements, yet the SWRCB again took no action
27 against the City for these violations and in so doing, has authorized the City to continue
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COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 damaging Plaintiffby giving O'Gorman's exclusive deeded right to divert and sell water to the
2 City, thus facilitating the inverse condemnation of Plaintiff's water rights.
3 37. The California Department ofFish & Game and NOAA [National Marine
4 Fisheries Service ("NMFS")] filed protests in order to stop the City's request to expand its POU.
5 Each of these protests was a complete submission with no further information required, telling
6 the agencies "Your protest has been received. No further action is required by you at this time.
7 We will contact you shortly regarding the status of your protest and what additional information,
8 ifany, is needed."
9 38. Plaintiff alleges that at this point in time the City and SWRCB were confronted
10 with three barriers that would potentially harm the City's efforts to "legally" sell water outside
11 their POU and for AG use:
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The DFG protest;
The NOAA protest; and
The fact that the indenture/water transmission agreement language relied upon by
the City to sell water for Ag was not present; and said indenture/water
transmission agreement allowed for only one (1) two inch (2") water hookup to
the City's water main between Kimball Dam and City limits, which had been in
continuous use by the Tubbs since 1940.
Notwithstanding the completeness of the DFG and NOAA protests submitted and
20 thereafter acknowledged by SWRCB on August 8, 2002 in their original form, on September 17,
21 2002, the SWRCB drafted letters to DFG and NOAA, giving them 30-days to provide additional
22 information to their protest documents on pain of having their protests dismissed, however
23 neither DFG nor NMFS received a copy of this letter, leaving the SWRCB free (in its mind) to
24 dismiss the protests of an expanded City POU on the basis that neither agency had responded
25 within the 30-day window allowed by the SWRCB letter.
26 40. From on or about September 2002 through July 2005 no communications appear
27 in the SWRCB public files concerning the City's desire to expand its POU and although it had
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COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 already been provided with a copy of the Tubbs indenture/pipeline easement by the City's Water
2 Superintendant years earlier, the Board on more than one occasion, requested that the City
3 provide a copy of the water contracts to justify the increase to the City's existing POU.
4 41. Between the time that the original POU violation was discovered by SWRCB and
5 the date that it issued its first order granting the City's petition for an expanded POU, the City
6 negotiated no fewer than six (6) water contracts with wineries. (Chateau Montelana, Rombauer
7 Vineyards, Rancho Alto Vineyards, Pecota Vineyard, Premo, and Markham Vineyards.) All of
8 these supplemental agreements were based upon the original November 3, 1939 Tubbs - City
9 indenture/pipeline agreement, which the City supplied to SWRCB on September 27, 2001, yet all 0
10 them should have received LAFCO permission as they were labeled as "new service" located
11 outside the boundaries of the City's POU, as required by Government Code 56133. Further, this
12 was in violation of the Tubbs water rights transfer agreement and was a further inverse
13 condemnation.
14 42. Plaintiff alleges that the failure to obtain approval to furnish new water service to
15 customers located outside the boundaries of its POU is a violation of Government Code Section
16 56133 and that such violations, in addition to failing to enforce its own code provisions and
17 depriving "O'Gorman of her deeded exclusive riparian/diversion rights to sell water, and the
18 provision which restrict the City's diversion and rights to only the boundaries of the municipal
19 limits as per the water rights agreement, constitute tacit consent as well as express approval for th
20 commission of an inverse condemnation and Plaintiff is therefore entitled to just compensation
21 damages from SWRCB as a joint tort feasor who concurred in a scheme with knowledge of its
22 unlawful purpose that the SWRCB and the City did not want exposed.
23 43. On October 12,2005 as part of the scheme to avoid the LAFO requirement,
24 SWRCB suggested to the City that it could supply it with water billings to prove that it had been
25 selling water to parties outside its POU in lieu of the "old lost water agreemenf' that it already
26 had in its possession since September 27, 2001.
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COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 44. Plaintiff alleges that the SWRCB, having a copy of the Tubbs indenture/pipeline
2 agreement in its possession since September 27,2001 indicating that only one 2" hookup was
3 allowed, having already cited the City for providing water service outside its POU and the City,
4 knowingly conspired to evade the LAFCO permission requirement of Government Code
5 56133(e) and thereafter knowingly conspired to legitimize and authorize the City's continued
6 sale of water outside its POU in violation of the terms of the City's water licenses at the expense
7 ofO'Gorman and the said LAFCO law beginning June 10,2004 at the latest.
8 45. Had the SWRCB reviewed its own files or required the City to substantiate its
9 right to take water by using the Tubbs indenture/pipeline agreement it had in its possession, the
10 SWRCB would have realized that none of the parcels being served water outside the POU were
11 in compliance with the Tubbs indenture/pipeline agreement and given this situation, there was no
12 basis for the City to sell water to users located outside the City's original POU defined by the
13 City limits in 1939 other than the Tubbs Home Place with one 2" pipeline hooked up to its water
14 main between the City's Kimball dam and the City limits.
15 46. SWRCB, acting as if the indenture/pipeline agreement did not exist, suggested to
16 the City that it could supply it with water billings to prove that it had been selling water to parties
17 outside its POU in lieu of the "old water agreement" that it already had in its possession, and
18 negligently used the billings as a basis to state in the Amended Licenses reflecting the expanded
19 POU that it was the SWRCB's determination that the City had provided water service for a
20 "period of many years, " thereby excusing the City from complying with the LAFCO law and
21 avoiding reference to the missing Tubbs indenture/pipeline agreement.
22 47. The water bill submission of February 1,2006, made five years after the
23 commencement of the application process, was itself fraudulently prepared as evidenced by the
24 method used to legitimize the supply of water to the vineyards that were included in the POD
25 application.
26 48. By way of example, Chateau Montelena's Assessor's Parcel Number ("APN")
27 017-130-049 & ptn. 050 had been receiving water for agricultural use since at least 1974 as
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COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 evidenced by its first Interim Supplemental Agreement with the City that specified water use for
2 irrigation, frost protection and residential use, all of which the City had been providing outside
3 its original POU in direct violation of its water licenses terms.
4 49. The City submitted a color-coded map of the Montelena property on February 1,
5 2006, fraudulently showing that Chateau Montelena was authorized to hook up to the City's
6 system, but was not yet connected under the Tubbs indenture/pipeline agreement, which was a
7 false representation.
8 50. The Aves, Rombauer, and Rancho Alto vineyard property located at 3250 Bennett
9 Lane was listed as being connected, after the City was forbidden by the Board to do so in writing
10 in June 2004.
11 51. On August 30,2007, SWRCB amended its original order, which deleted the
12 above-stated provision as item number 4 in the original order, changing its designation to item
13 number 9 and at the same time issued amended licenses reflecting the increased City POU.
14 52. Believing that the City had taken more water than permitted under the
15 aforementioned 1939 Tubbs' water rights transfer contract, O'Gorman contacted one Grant
16 Reynolds, a family friend, to help her persuade the City to honor the terms of the original Tubbs'
17 water rights transfer agreement (not the indenture/pipeline agreement). Plaintiff O'Gorman then
18 assigned her contract rights to Grant Reynolds to recover from the City on a contract claim for
19 the breach of the Tubbs' 1939 water transfer agreement described above. Thereafter Reynolds
20 filed a complaint for recovery on March 13,2009, Napa County Superior Court Case No. 26-
21 26468.
22 53. Reynolds or about December 2009 called the SWRCB's head enforcement
23 officer, John O'Hagan concerning water rights to alert him that the City had purloined
24 O'Gorman's water rights from her and at the same time to explore the possibility that the
25 SWRCB had aided and abetted the City in depriving her of the benefits of her water right
26 ownership related to the City's reservoir property.
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COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 54. During the course of that conversation, Mr. O'Hagan told Reynolds that he
2 (Reynolds) would have to pursue the City first in the courts to first determine who owned the
3 water rights and after that if the effort was successful, could then bring O'Gorman's case before
4 the Board to seek a determination of who could claim the water rights to the City's reservoir
5 property. Mr. O'Hagan further stated that there were no copies of any of the Tubbs agreements i
6 the Board's possession at that time.
7 55. On January 6, 2009, following up the December telephone conversation with
8 O'Hagen, and believing at the time that SWRCB would take corrective action against the City
9 once the true facts were made known, and based upon his perception that the SWRCB was
10 ignorant of the circumstances surrounding Kimball Creek water rights issues because no copie
11 of either of the two November 1939 water agreements had been produced in response to his thre
12 PRA requests, Reynolds wrote to O'Hagan providing copies of the 1939 agreements via an
13 inquiry for protest that Tubbs had a water rights interest on the reservoir property and this puttin
14 the SWRCB on notice of 0' Gorman's rights in order to protect her interests from others who
15 might seek to infringe upon them.
16 56. The letter set forth the basis of O'Gorman's dispute with the City and included
17 copies of the recorded November 3, 1939 Tubbs water rights transfer contract and the
18 indenture/water pipeline agreement given to Tubbs as payment for his allowance of the City's
19 water main to pass through his lower lands to the City limits on the other side of the parcel's
20 boundaries.
21 57. On February 25, 2009, Mr. O'Hagan responded, stating that the City of Calistoga
22 had suppled water to O'Gorman as a regular customer for many years and directed her to file a
23 statement with the Board regarding her water right to the headwater spring at the top of Kimball
24 Creek.
25 58. Mr. O'Hagan also wrote that the Board was not liable to O'Gorman because the
26 City failed to inform the Board about its private agreement the City made with Ms. O'Gorman's
27 grandparents, concluding it had no authority to enforce conditions of that agreement that it was not
28 14
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 a party to and pointing out that a license revocation hearing would be required to change the City's
2 license status.
3 59. The Tubbs indenture/pipeline agreement already III the SWRCB's
4 possession, on its face clearly states that O'Gorman has never been treated "---for many
5 years as a regular clBtomer similar to all other residents in the area under the City's rights." In
6 fact, she was and still is enjoying the payment arrangement the City had made with her
7 Grandfather (one 2" connection) as a benefit to wheel Tubbs owned water to land owned by
8 Tubbs for the easement right by the City to run the water main through the Tubbs lower lands. She
9 is still only charged ten cents per one thousand gallons of water used, as that second agreement
10 (indenture/pipeline agreement) which is recorded against the title to the land O'Gorman owns and
11 reflects that this right is in perpetuity. Said agreement provides that in the event the City abandons
12 the pipeline, that area of land encumbered by the indenture/pipeline agreement shall become free
13 of the burdens of said easement, thus clearing the land's title from the burdens of said easement,
14 but not the benefits. There was no provision in the Tubbs indenture/pipeline agreement that
15 allowed for 115 additional water hookups outside the City's POu. The indenture/pipeline
16 agreement was only concerned with the City and Tubbs as evidenced within the recitals
17 contained in the Chateau Montelena July 19,2005 Agreement. The indenture/pipeline agreement
18 did not obligate nor authorize the City to provide water to anyone but Tubbs outside its POu.
19 60. The action taken by the SWRCB at the time the expanded POU order was entered
20 on March 20, 2007, cancelled O'Gorman's exclusive right to sell water to the users as per 1883
21 negative easement which reflects that the said owner of the property is located agrees owner
22 shall not divert water from said property for sale.
23 61. SWRCB's amendment of the City's POU created a new water right for the City and
24 at the same time did operate to take O'Gorman's negative easement property right manifested
25 within the City parcel's deed from her without just compensation.
26 62. Based on the responses of the Decernber2008 telephone call and Mr. O'Hagan's
27 letter, including O'Hagan's representation that the SWRCB was not liable at the time as set
28 15
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 forth above, Reynolds purchased the rights to enforce the terms of the contract mentioned within
2 the September 22, 1939 and January 26, 1940 letters to the SWRCB from Ms. O'Gorman and
3 proceeded against the City on the legal theory that the City had violated the First contract made on
4 November 2, 1939, the water rights transfer agreement by building its Kimball dam higher than
5 the 44' specified in plans filed by the City with the Department ofDams on April 30, 1939.
6 63. On January 27, 2011, the Napa County Superior Court, expressed from the bench,
7 that the Tubbs' water rights transfer agreement with the City did not comply with California
8 Civil Code §§1461 and 1468, that therefore by operation oflaw, the contract no longer had any
9 legal force or effect when grandmother Tubbs passed away in 1959. The City claimed to have
10 thus repudiated the existence of the 1939 water rights contract.
11 64. The court then ruled that Reynolds had no standing to bring a breach of contract
12 claim on behalf of Plaintiff because O'Gorman had no contract rights to assign, the water rights
13 transfer agreement having died by operation of law when Grandmother Tubbs passed. The Co
14 then dismissed some of Reynolds' claims, but said court ruling was not final or appealable until
15 October 31, 2011. The court also ruled that Reynolds had no standing to allege an inverse
16 condemnation claim, and, at the urging of the City, denied him leave to amend.
17 65. Since there were other claims still pending, Reynolds could not appeal the court's
18 dismissal ofthe breach of contract claims, nor the court's denial of Reynolds' motion for leave to
19 amend to claim other damages, nor for inverse condemnation, nor for a claim of TAKINGS
20 without payment of just compensation.
21 66. The Court finally dismissed all the claims of the complaint, denied Reynolds the
22 ability to amend the complaint, and notice of entry of judgment was entered on October 31,
23 2011. Reynolds filed a timely notice of appeal. Reynolds timely filed his appeal brief from said
24 court's ruling, and in approximately July of2013, the City of Calistoga filed its appellate brief
25 and conclusively affirmed in said appeal brief that said 1939 water rights transfer agreement did
26 not run with the land, and that Reynolds had no standing. By the City asserting the said City's
. 27 water rights, which it obtained only because of the 1939 Tubbs' water rights transfer agreement,
28 16
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 did not run with the land, Plaintiff was assured that the City had conclusively bound itself to that
2 position, so that Plaintiff could assert that City tacitly agreed that it had actually taken Plaintiff s
3 water rights and her water without just compensation - and also was in breach of the 1883
4 negative easement agreement as described in ~~ 11-17. That is, the parcel of property the City
5 purchased for its dam in 193811939 had already been stripped of water rights by Tubbs through
6 purchase of said water and exclusive diversion rights in 1883. Once the City's parcel was
7 alienated from said riparian water rights, and forever eliminated the owner and future owner's
8 rights to divert in favor of Tubbs' heir's exclusive right to divert, the riparian rights could not
9 return to the City, and thus Tubbs owned them - and by inheritance, Plaintiff 0' Gorman as the
10 third party beneficiary. The only rights the City had with respect to the deliveries of water for its
11 municipal purposes and otherwise was through the Tubbs' water rights transfer agreement,
12 which the City finally, and unequivocally, repudiated in July of2013.
13 67. Once the City finally and unequivocally repudiated said water rights transfer
14 agreement in July of2013, Reynolds then dismissed/withdrew his claim to damages under the
15 1939 contract, so that Plaintiff herein could sue for inverse condemnation and civil rights
16 violations pursuant to the TAKINGS Clause of the United States Constitution, and breach of the
17 1883 negative easement and water rights transfer agreement. Without having deeded water
18 rights, based upon chain of title, pursuant to the Tubbs' water rights transfer agreement, the City
19 had no riparian water rights (right to divert) nor any rights to the water from Kimball Creek. It
20 had a parcel of property with a dam which supplied the City with water for municipal purposes
21 within the City's POU on said property, but had no rights to said water, because Tubbs had
22 acquired said riparian rights and exclusive rights to divert from said property, by deed in 1883.
23 But the City continued to take Plaintiffs exclusive rights to water, even after the City,
24 unequivocally in July of2013, stated City's said water rights did not run with the land - which
25 meant that the City's alleged water rights were also null and void - and since 1959. But even
26 after the City's definitive argument in its appeal brief in July of2013, it continued to exercise its
27 repudiated water rights as though the Tubbs' agreement was still in force and· effect. Thus, the
28 17
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 absolute TAKINGS by the City of Plaintiffs water rights were not settled until the City's appeal
2 brief in July of2013. Also, since the City claimed the Tubbs 1939 water rights transfer
3 agreement was no longer valid, the City's TAKING of said water with SWRCB authorization
4 amounted to inverse condemnation, and was a breach of the 1883 negative easement giving
5 Tubbs and his heirs the sole right to divert water from the City's reservoir parcel for sale to
6 anyone. Any accrual of the start of any statute of limitations with respect to Plaintiff s
7 TAKINGS, inverse condemnation and breach of the 1883 negative easement water rights claims
8 herein were therefore tolled through July of2013.
9 68. Plaintiff alleges that by the City repUdiating the Tubbs' water transfer agreement,
10 it also then left the City's reservoir property with no water rights at all, as they reverted back to
11 Tubbs' heirs, the Plaintiff herein; that is, the only way the City had any water rights was by
12 virtue of the Tubbs' water rights transfer agreement. The then Plaintiffs representative,
13 Reynolds, communicated with the Defendant Board in 2008,2009,2012 and 2013 regarding the
14 Defendant Board's claim that because ownership of water rights between Plaintiff o 'Gorman
15 and the City were being disputed, the Board would not take a position on ownership of said
16 water rights, even though the Defendant Board knew that the City was not obligated nor
17 authorized to provide water to users located outside its POU because it had reviewed the Tubbs
18 indenture/water pipeline agreement and knew that only 0' Gorman had a right to connect to the
19 City's water main and its City limits and provided no legal basis to determine that expansion of
20 the City's POU would not conflict with the rights of others such as O'Gorman and stated within
21 term No.9 of the City's Amended Water Licenses 9615 and 9616.
22 69. In 2013, Reynolds, on behalf ofO'Gorman, advised the Board and City that
23 because Water Code § 1016 states that at the conclusion of the term of a water transfer
24 agreement, all rights in, and the use of the water subject to the agreement revert back to the
25 transferor (which would be O'Gorman), and that the transferee (City) at the conclusion of the
26 term of the water transfer agreement could not claim a continued right to receive water.
27
28 18
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 Reynolds, on behalf of 0' Gorman, requested the Defendant Board to declare that said water
2 rights belong to Plaintiff 0' Gorman.
3 70. On November 21,2013, the Defendant Board erroneously claimed that the terms
4 of the water transfer issue of Water Code § 1016 did not apply, since the water contract between
5 Tubbs and the City occurred prior to the effective date of § 1016, and therefore said contract had
6 not previously received the approval ofthe State Water Board "initially," and thus it erroneously
7 claimed it did not believe it had any authority under § 1016 to order said water rights to revert
8 back to O'Gorman, as the sole heir of the Tubbs' estate.
9 71. Plaintiff alleges that the Board's receipt and legal review of the September 27,
10 2001 Steve Anderson City letter and its attachments was made at the Board's express request to
11 the City to provide evidence that proved the customers receiving water outside its current POD
12 were authorized to receive water by a contract which predated the City's water licenses.
13 72. The contract provided was, in essence, a water transfer contract between Tubbs
14 and the City that bestowed easement rights to the City's favor against the Tubbs lands and a
15 "wheeling agreement" whereby the City agreed to deliver water to only Tubbs as a replacement
16 for his access to water collected behind the Wright-Paulson Barrier that would be destroyed
17 when the City's reservoir was filled.
18 73. The September 27,2001 Steve Anderson letter with attachments was submitted to
19, the Board to justify municipal water transfers outside the City's POU to 115 others, when only
20 the Tubbs Home Place was the designated transferee of the Tubbs Water Transmission Pipeline
21 Agreement.
22 74. Plaintiff alleges that by requesting and legally reviewing the 1939 Tubbs
23 indenture/pipeline agreement during the City's POU approval process for consideration as
24 evidence to expand the City's existing POU, the Board asserted its jurisdiction and interpreted
25 the agreement before it decided to base its expanded POU decision based on a map
26 representation presented to the Board by the City in lieu of the Tubbs agreements as reflected in
27 item No.9 of the City's amended water license 9615 said legal review of the September 27,
28 19
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 2001, constituted the "initial act" requirement that gives the Board continuing jurisdiction to
2 correct prior errors it had made concerning the expansion of the City's POU.
3 75. Notwithstanding that the Board had evidence within its possession since 2001 that
4 it had acted improperly, the Defendant Board stated that because there was a dispute between
5 O'Gorman and the City of Calistoga, the Board would not get involved unless the Court ordered
6 it to do so and that because there were ongoing claims with the City it would not be appropriate
7 for the Board to get involved until that matter was finally settled.
8 76. The Board, in approving the City's expanded POU, deprived O'Gorman of her
9 exclusive right to divert water for sale and for agricultural use outside its original POU and was a
10 breach of the 1883 negative easement recorded against the City's reservoir parcel, which
11 prohibited the City from doing so.
12 77. Plaintiff alleges that the act of the Board approving the expansion of the City's
13 POU after its receipt and legal review ofthe Tubbs 1939 indenture/water pipeline easement on 0
14 about September 27,2001, was an act of inverse condemnation, requiring just compensation to
15 Plaintiff, in an amount according to proof.
16 78. Only after the prior Napa superior court litigation (Case No. 26-46826) that
17 Reynolds had with the City did Reynolds and 0' Gorman learn in late in 2009 to early 2010, that
18 the City had been taking water since 2004 from the Kimball Creek and selling said water outside
19 its licensed place of use and for export outside the City's place of use to others in violation of the
20 Tubbs' negative easement provision. Only O'Gorman had the easement and water rights to
21 divert and sell water outside the licensed place of use, as the City had no rights to sell said water
22 for other than municipal purposes. PlaintiffO'Gorman then learned that the City had been doing
23 this before it first repudiated the contract in 2011, as described above, and continues to sell said
24 water up through the time of the filing of this complaint. The Board was surreptitious and
25 clandestine in the approval ofthe expanded POU so that O'Gorman would not learn of this, and
26 in fact the Board disguised its acts by not including the Tubbs indenture/pipeline agreement and
27 September 27,2001 City letter in its public files for members ofthe Public to examine. The
28 20
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 Board then refused to enforce the terms of the City's water licenses restricting the use for said
2 water sold for agriculture purposes, to wineries including Rombauer, Rancho Alto, Pecota
3 Vineyards, Chateau Montelena Winery, Markham Vineyards, and others unknown after
4 Reynolds made written demand that it do so. Based on the contracts that Plaintiff has observed,
5 the amount paid to the City by these vineyards for water expropriated and converted in
6 derogation of 0' Gorman's rights is alleged to be in the millions of dollars. Even if the City had
7 not repudiated the Tubbs' water rights transfer agreement and license in 2013, the City was
8 barred from selling said water for other than municipal purposes and the Board knew that but
9 aided the City in its act ofinverse condemnation. Since the City claimed that the Tubbs' 1939
10 water rights transfer agreement did not survive the death ofO'Gorman's grandparents, the last 0
11 whom died in 1959, the City's entire appropriation of water since 1959 is in violation of
12 O'Gorman's 1883 negative easement and water rights, and was also a TAKING without just
13 compensation, and also acts of inverse condemnation without just compensation in violation of
14 California law.
15 79. PlaintiffO'Gorman alleges that Board approval of the City's expanded POD
16 using Kimball water after September 27, 2001, for agriculture use, municipal use, or for sale to
17 others or for export outside its place of use, became acts of inverse condemnation (and thus a
18 T AKIN G per se) requiring just compensation and a constructive trust requiring payment by the
19 Defendant Board to Plaintiff 0' Gorman for the value of all water the City sold municipally or
20 outside its place of use and/or sold for agriculture purposes. Those rights to sell water for
21 agriculture or any purposes belonged, since 1959, and belonged solely thereafter and,
22 exclusively, to Plaintiff O'Gorman. Also, since the City, in 2011 and unequivocally as of July
23 2013, expressly asserted that the Tubbs' water rights transfer agreement No.1 identified above
24 was invalid as of 1959, and unequivocally, and finally, restated the same in July of2013, all
25 water used and taken by the City with Board approval outside its original POU is an act of
26 inverse condemnation and TAKING requiring just compensation owed to Plaintiff. The City's
27
28 21
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 TAKING of said water with Board authorization since before 2011, and since 2013, has been
2 repetitive and continuous, which begins anew the accrual date of said statute of limitations.
3 80. As a direct result of said conversion of Tubbs, and now PlaintiffO'Gorman's
4 water rights, for the City's own use and profit with Board approval, Tubbs, and now Plaintiff
5 O'Gorman, as the sole heir, were damaged in an amount equal to the value of the water the
6 Board allowed the City to take in violation ofthe Tubbs 1883 negative easement and the 1939
7 water rights transfer agreement, and 1939 pipeline agreement in an amount according to proof,
8 but far in excess of $1 0 million dollars, plus interest.
9 81. Based upon its legal review of the September 27,2001 submittal, the Board knew
10 or should have known that said TAKING and selling of the Tubbs/O'Gorman's water rights by
11 inverse condemnation was a TAKING requiring just compensation in the amount of the proceeds
12 the City received from the sale of said water, or the value of it, whichever is higher, since and
13 including on or before 2001 to the present and continuing, and including water the City sold for
14 agriculture or bottling purposes to its non-residents, including the wineries.
15 FIRST CAUSE OF ACTION
16 (Inverse Condemnation; Just Compensation; Constructive Trust)
17
18
82.
83.
PlaintiffO'Gorman realleges, as though fully set forth, ~~ 1 through 81 above.
At all times mentioned herein, the Defendant Board knew, or should have known,
19 that its actions, aided, abetted, and assisted the City of Calistoga with inverse condemnation of
20 Plaintiff o 'Gorman' s (and Tubbs') water rights, and that said water rights were a property right
21 solely owned by TubbslPlaintiffO'Gorman. The Water Board knew, or should have known, that
22 the City was not permitted to sell water outside of its place of use, nor for agricultural purposes,
23 but the Water Board, despite that knowledge, assisted and authorized the City in taking
24 Plaintiffs water rights, and is an act of inverse condemnation.
25 84. Defendant Board's conduct herein, as described in the preceding paragraphs,
26 deprived Plaintiff 0' Gorman of her property rights, which are her water rights as stated above,
27
28 22
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 requiring the Defendant Board to pay just compensation to the Plaintiff, in an amount according
2 to proof, but in excess of$5 million dollars, plus interest, from and including 2001 to the present.
3 85.· Plaintiff is also entitled to reasonable attorney's fees.
4
5
6
7
86.
87.
SECOND CAUSE OF ACTION
(Declaratory and Injunctive Relief)
Plaintiff realleges, as though fully set forth, ~~ 1 through 85 above.
Specifically and expressly incorporating the First Cause of Action above, and all
8 of the previous paragraphs of this complaint, Plaintiff is entitled to declaratory relief, a
9 declaration by the court that even though the water contract between the City and Tubbs was
10 prior to the enactment of Water Code section 1016, the Board should be required to consider
11 Water Code section 1016 applicable to the facts alleged in this case. The City has repudiated the
12 water rights contract, and therefore said water rights automatically revert back to Plaintiff
13 O'Gorman. The Defendant Board does not claim any statutory support for its position. A
14 dispute has arisen between the parties as to the scope of Water Code section 1016 and associated
15 sections, as well as the ownership of said water rights. O'Gorman further alleges that even if the
16 Tubbs/City water rights transfer agreement could not be considered a water transfer agreement,
17 that the Court should declare that all water rights the City heretofore had pursuant to the Tubbs
18 1939 water rights transfer agreement and indenture/water pipeline agreements do revert back to
19 O'Gorman, and to require the Board to consummate and conclude said transfer of water rights.
20 Pursuant to Water Code sections 2000, 2767, and 2768, this court has the authority to determine
21 the water rights of all of the parties.
22 88. O'Gorman is also entitled to declaratory relief, a declaration by this court that
23 whatever the Board allowed the City to have by virtue of the Tubbs agreements are null and
24 void, and that the ownership of said water rights belong to the Plaintiff, and that the Board must
25 carryout said court order.
26 89. O'Gorman is also entitled to injunctive relief, a preliminary and permanent
27 injunction ordering the Board to preclude the City from taking, diverting or using any water by
28 23
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 virtue of any alleged previous water rights, and that the Defendant Board is required to revert
2 said water rights to Plaintiff o 'Gorman. Full and complete relief to PlaintiffO'Gorman cannot
3 occur but for making the Defendant Board a Defendant in this action, and the court granting said
4 declaratory and injunctive relief. O'Gorman is also entitled to an order of this court to
5 consolidate this case the case Plaintiff has pending against the City in the Napa County Superior
6 Court.
7 THIRD CAUSE OF ACTION
8 (Violation of the Fifth Amendment of the U. S. Constitution, TAKINGS without Just
9 Compensation)
10
11
90.
91.
Plaintiff realleges, as though fully set forth, " 1 through 89 above.
For all of the same reasons state above, the Defendant Board committed a
12 TAKING of Plaintiff's water rights without just compensation by authorizing, aiding and
13 assisting the City to take Plaintiffs water rights. But for the Board's refusal to prevent the City
14 from taking said water rights, the Board had the authority to stop the City, said TAKING would
15 not have occurred. Plaintiff alleges that is a TAKING under the Fifth Amendment of the United
16 States Constitution.
17 PRAYER FOR RELIEF
18 WHEREFORE, Plaintiff prays for judgment as follows against the Defendant Board:
19 A. F or Plaintiff to be awarded just compensation from the Defendant in an amount
20 according to proof, but in excess of $5 million dollars plus interest, from and including 2001 to
21 the present for the Defendant's act of inverse condemnation;
22 B. For Plaintiff to be awarded just compensation from the Defendant in an amount
23 according to proof, but in excess of $5 million dollars plus interest, from and including 2001 to
24 the present for the Defendant's TAKING without just compensation of Plaintiffs water rights in
25 violation ofthe Fifth Amendment ofthe U. S. Constitution;
26 C. Plaintiff is also entitled to declaratory relief, a declaration by the court that Water
27 Code section 10 16 does apply to the contracts at issue in this case, that the City repudiated the
28 24
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION
1 1939 water rights contract, and therefore said water rights automatically reverted back to
2 Plaintiff pursuant to Water Code section 1016;
3 D. Plaintiff is also entitled to declaratory relief, a declaration by the court that even i
4 the Tubbs' 1939 water rights transfer agreement with the City cannot be considered a water
5 transfer agreement, that the court should declare that all water rights the City heretofore had
6 pursuant to the Tubbs 1939 water rights transfer agreement do revert back to Plaintiff, and
7 requiring the Defendant Board to consummate and conclude said transfer of water rights, and to
8 approve Plaintiff's license and permit to divert said water;
9 E. Plaintiff is also entitled to declaratory relief, a declaration by the court that
10 whatever the Board allowed the City to have by virtue of the Tubbs 1939 water rights transfer
11 agreements are null and void, and that ownership of said water rights belong to the Plaintiff, and
12 that the Board must carryout said court order;
13 F. Plaintiff is also entitled to declaratory relief, an order by this court to consolidate
14 this case with the case Plaintiff has pending against the City in Napa County Superior Court;
15
16
17
18
19
G.
H.
I.
J.
A jury trial in this matter;
Costs of suit;
Reasonable attorney's fees; and
For any further and additional relief the court deems necessary and proper.
20 DATED: August 31, 2015 C. LEIGHTON, Co
21 ebbie Reid O'Gorman
22
23
24
25
26
27
28 25
COMPLAINT FOR INVERSE CONDEMNATION; CONSTRUCTIVE TRUST; TAKINGS; DECLARATORY AND INJUNCTIVE RELIEF; AND JUST COMPENSATION