With an April litigation regarding water sales against the Oakdale Irrigation District going through various motions in Stanislaus County Superior Court, two sitting OID directors who cast March 15 dissenting votes for the sale, have voluntarily provided the plaintiffs’ attorney with declarations containing emails they had with OID General Manager Steve Knell. After the information was supplied, the court reversed its decision from allowing the program to putting a halt until environmental concerns could be addressed.
The court motions surround a court case filed by local farmers Louis Brichetto and Robert Frobose acting as the “Oakdale Groundwater Alliance.” The duo is seeking to halt the water transfer from land fallowing, challenging that an in-depth study of environmental consequences is needed before OID could move the water to other locations in the state.
Fallowing is the process of leaving farmland unseeded for one or more growing seasons.
OID’s program would give participating customers financial payment for their allotted water on the condition it’s used for conservation practices.
According to OID, the water that would have been billed to customers at $3 an acre-foot would be sold to neighboring districts, specifically the Westlands Water District in in western Fresno and Kings Counties, at $400 an acre-foot.
Altieri Contacts Opposing Counsel
In a May 4 hearing seeking a temporary restraining order to stop the sale, Stanislaus Superior Court Judge Timothy Salter ruled in favor of OID, declining to halt the plan.
Court documents show that after the hearing, the plaintiffs’ attorney, Osha Meserve, met with OID Director Gail Altieri who showed her emails from the previous day that were between OID directors and Knell about the sale and fallow-conservation program.
“She offered to provide the email for my use in pleadings in the case filed by the Oakdale Irrigation District to refute the claims by OID counsel that the On-Farm Conservation Program had been modified to no longer include water transfers,” Meserve wrote in her May 18 Declaration to the court.
When Meserve shared the email with her clients, Brichetto informed her Santos could also come forward with a similar statement.
On May 18 Meserve filed sworn declarations by Altieri and Santos which included two emails from Knell to the board of directors.
Upon inspection, one email contains answers to questions posed by Santos on the water sale and information contained in a Modesto Bee article.
Knell replied that “no decision made on change to water sale, On-Farm Conservation Program still moving” and that a Modesto Bee article was incorrect.
“You assume Bee article is correct,” Knell wrote. “I can’t explain stupid and this Bee article is stupid.”
The other email was from May 6 and contained an OID-SSJID flow change schedule from May 9 to May 16.
After learning that members of its own board of directors were contacting opposing lawyers in the suit, OID attorney Valerie Kincaid requested Judge Slater to dismiss the Altieri and Santos declarations and order them not to speak with the plaintiffs’ attorney. Kincaid asked the judge to order Meserve to turn over anything else that the directors may have also provided.
The actions by Altieri and Santos – being representatives of the defendant, OID, and offering to provide communications from inside the organization – were questionable enough for Meserve to seek out advice from the State Bar Ethics Hotline regarding communications with represented parties.
According to the State Bar, attorneys “while representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”
In this case, however, Meserve argued that the communication was allowed because Altieri and Santos were “public officials” and were exempt from the rule.
On May 19 the judge ruled that OID’s motion was “procedurally incorrect” only because 15 days notice was required before the matter’s next hearing, with an additional five days for a response, and the next court matter was calendared for June 2.
On Monday, May 23, with the new information, Judge William Mayhew, also hearing the matter, reversed the decision and decided that OID must address environmental concerns raised before executing the fallowing program.
Mayhew said OID didn’t respond to the California Fish and Wildlife Department concerns and failed to analyze how fallowing might affect endangered and threatened species.
Altieri and Santos Avoid Questions
Gail Altieri and Linda Santos were elected last November after campaigning to improve district transparency in OID. Their victory overthrew longtime incumbents Al Bairos and Frank Clark who had held the seats for nine and 14 years, respectively. Both Altieri and Santos have been outspoken against Knell since being elected to the OID board.
When contacted by phone on May 19, Altieri said she could not speak about the lawsuit because, by policy, the matter was in litigation.
When asked how then she could approach the opposing lawyer in the matter to discuss the case and offer evidence, she replied, “I’m not speaking to you at all, thank you,” and hung up.
Records show that one of the plaintiffs, Robert Frobose, is a current land tenant of Santos and farms property on land owned by her family.
On Friday, May 20, Frobose said that he has been leasing land from Santos and her family “for a long time” and using it for farming purposes.
He said he farms a large acreage of land and only approximately 100 acres was owned by Santos.
Santos declined to be interviewed for this article and insisted that questions be emailed. Despite repeated requests, Santos stated she would only answer questions “if I can” that were sent in advance.
Santos was emailed questions regarding her declaration and any perceived conflicts by doing so, her relationship with Frobose, and violating any closed session items.
Santos responded stating she had not disclosed any closed session items but did not address the other questions.
“I am not a member of the alliance, but some of the OID constituents I represent on the board are members of the alliance,” Santos wrote. “It is appropriate and beneficial for board members to listen to the concerns of all their constituents. That’s how democracy is supposed to work.”
On a subsequent email asking her to address the questions, she responded with a political quote about open government.
A review of court filed documents shows Brichetto, an OID board member himself from 2001-2006, was initially in favor of OID’s On-Farm Conservation Project when it was first proposed.
In a January 2015 email to Knell, Brichetto stated he supported the project and described it as an “inspiration” and “out-of-the-box thinking” that would “benefit both OID customers and local groundwater subbasin for years to come.”
Court records show Brichetto has 418 acres of land within OID’s service area. Brichetto also farms another 3,600 acres outside of OID’s area relying on ground water for irrigation.
According to OID, earlier this year, Brichetto applied to participate in the fallowing program, but instead of being paid money, requested to transfer and pump the applied water to his land outside of OID’s area in East Stanislaus County.
OID officials declined the request.
“We don’t allow water schemes for acquiring water,” Knell said, when contacted about the proposal. “There’s only two ways to get out of district water: one, apply for out of district water – we have a program for that and two, is by (OID) annex.”
OID charges $2900 per acre when annexing land into its service area.
Knell said that it was only after OID declined the proposal did Brichetto start opposing the plan and eventually filed suit claiming an environmental study was needed.
Knell said OID has completed all California Environmental Quality Act (CEQA) requirements which is why the judge sided with them in early May.
Frobose Gives His Side
“My true interest here is we want to keep the water here in our area,” Frobose said about filing the lawsuit. “Underground water has no boundaries. We’re concerned with surface water leaving our area.”
Frobose added that if groundwater levels drop, everyone suffers, not just farmers.
The longtime farmer also disputes the CEQA report filed by OID.
“That’s only a negative declaration, it’s not an environmental review,” Frobose said. “That’s just OID making a declaration there’s no effect from the sale (of water).”
Frobose mentioned that another director, Gary Osmundson, had benefitted from the project after voting for it. He questioned how Osmundson could vote in favor of the water sale shortly after signing up to fallow 110 acres of his own land, claiming Osmundson could make $120,000 on the deal.
According to court records, Osmundson claims he checked with his own attorney and OID’s counsel prior to the vote. Both stated no conflict existed.
Osmudson has since withdrawn as a participant in the program.
Frobose said OID management is now doing something different than what was voted upon in March and the water sale component has been removed from the proposal.
“Where’s the money going to come from?” Frobose asked. “Is Steve Knell going to sell cupcakes along F Street?”
When contacted on Monday, Knell said he was still digesting the ruling to question how it went from a tentative ruling in their favor to one in favor of the plaintiffs.
So far in court, OID financial records show the district has already paid $29,332 on this legal matter alone. OID’s next meeting is Tuesday, June 7.
Knell said the board will be addressing the court case and “a number of matters have come to our attention” regarding the past few days actions.