CALISTOGA — Grant Reynolds has appealed rulings that dismissed his two lawsuits — one claiming that the city of Calistoga failed to release enough water into Kimball Creek and the other charging that the city misused funds set aside for flood control and various water-related projects.
The appeals were filed Feb. 27 in the First District Court of Appeal in San Francisco. The city, which has spent $1.2 million fighting Reynolds’ lawsuits, hasn’t filed a response to the appeals.
City Manager Richard Spitler said Monday he hadn’t yet seen the appeals.
“We’ve prevailed to date, and I see no reason why we shouldn’t prevail in appellate court,” Spitler said. “I’m sorry to hear that [Reynolds] is continuing to do this, but he promised that he would.”
Reynolds’ legal battle with the city started with a suit filed in 2009 on behalf of family friends Matt Hickerson and Debbie O’Gorman claiming that the city had violated a 1939 water rights agreement with O’Gorman’s family.
The suit was dismissed when a judge ruled that the agreement had expired. Reynolds then added a claim that the city was taking too much water from the Kimball Creek and not leaving enough to support fish in the Napa River.
That suit was rendered moot after the city pledged to bypass more water. City officials insisted that the decision was a response to pressure from state regulators, not Reynolds’ suit, which led Napa County Superior Court Judge Raymond Guadagni to rule that Reynolds’ attorney, Bill McKinnon, was not entitled to $1.3 million in legal fees.
Reynolds’ appeal argues that the suit is still relevant because the city has failed to follow through on its pledge to release 3.2 cubic feet per second — almost 1,500 gallons per minute — during the winter and spring months when salmon and steelhead spawn in the Napa River.
The appeal also argues that even if the suit is rendered moot, McKinnon should still be awarded legal fees.
In addition, the city inadvertently surrendered its water rights by arguing that the agreement with O’Gorman’s family was no longer valid, the appeal alleges, citing a law that calls for water rights to “revert back to the transferor” — in this case the O’Gorman family — once a water agreement expires.
A second suit, filed in 2011, accused the city of improperly using funds from Measure A, a half-cent sales tax allocated for flood control and other water-related projects, to help pay for the 1.5-million-gallon Mount Washington water tank.
The suit claimed that by using $2.7 million in Measure A funds to build the $6 million water tank, the city was violating two precepts of Measure A: that funds could not be used to promote growth or build facilities that handle water from outside the county.
City officials argued that the water tank was really intended not to promote development but to improve the overall reliability of the water system, as well as facilitate extensive repairs to Kimball Dam — a project that was specifically included in the Measure A ordinance.
Guadagni dismissed the second case in February 2012, ruling that Reynolds lacks legal standing to sue because he lives in San Diego and Measure A is limited to Napa County. In his decision, Guadagni said he generally agreed with the city’s legal argument that the water tank was eligible for Measure A funds.
Reynolds’ appeal argues that he does have legal standing, and that California courts have historically allowed nonresident taxpayers to challenge illegal government expenditures.
Many of Reynolds’ allegations were echoed last May by the Napa County grand jury, which strongly criticized the city’s use of Measure A funds for the Mount Washington water tank, for the legal fight against Reynolds, and to reimburse the developers of Solage for drainage improvements.