Calistoga critic appeals dismissal of water lawsuits

2013-03-06T09:05:00Z Calistoga critic appeals dismissal of water lawsuitsJESSE DUARTE Napa Valley Register
March 06, 2013 9:05 am  • 

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addition, the city inadvertently surrendered its water rights by arguing that the agreement with O’Gorman’s family was no longer valid, the appeal alleges, citing a law that calls for water rights to “revert back to the transferor” — in this case the O’Gorman family — once a water agreement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.

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(5) Comments

  1. Grant Reynolds
    Report Abuse
    Grant Reynolds - March 06, 2013 11:26 pm
    The water for the fish claim was always there from the time the claim was filed against the City in December of 2008 pursuant to the Govenment Code and throughout the history of the case.
  2. Zorro
    Report Abuse
    Zorro - March 07, 2013 8:52 am
    The City needs to take a long hard look at the quality of work the current City Attorneys have accomplished to date:
    Lost the water rights? Advising the City to use measure A funds to pay the bill?
    Bypass plan? Grand Jury Report?
    The Current City Attorney has helped the City into a heap of trouble. Let's see if the current council will turn their bulb on bright and seek outside third party advise of a risk mitigator/neutral Attorney or just allows the inept City Attorney to run up the bill AGAIN to attempt to cover their mistakes. What's another $1million in Attorneys fees when the decision makers really don't have to dig into their own pockets to pay? If the City loses the appeal to Reynolds where are they going to dig up the money to pay damages and legal fees to both the City Attorney and Reynolds Attorney? Hard questions, big consequences!

  3. Ricecooker
    Report Abuse
    Ricecooker - March 08, 2013 7:23 am
    The lawsuit was started when the City of Calistoga dewatered the headwaters of the Napa River, May 5th 2008.
    The water was completely shut off,the river bed was dry and any fish would have been gleaned by scavenger's .
    The City told Reynolds to pound salt and he was forced to litigate.
    The facts that surfaced showed rampant fraud by the City Management which is still continuing today.
    The requests for documents and detailed investigations showed a plethora of illegal activity that started people retiring from City of Calistoga, and Napa County.
    The last chapter, still being penned, will resort in more retirees and illegal practices to cease.
    The results, " wheel of deceit", will begin to stop spinning.!
    The fate of the faulty law,cannot endure scrutiny as the Mr. Reynolds "Wheel" has more spokes and is well oiled.
    The lottery of politics will be eviscerated as it cannot be swallowed with it's current seasoning, from sinister actions.
    The, "Golden Cuspidor Award" , you bet ya!
  4. Zorro
    Report Abuse
    Zorro - March 08, 2013 9:18 am
    The current Mayor and City Council need to take a long hard look at the potential downside to themselves and the Town if they lose.
    Looks like they have already lost the water rights. It's on record they have de-watered the fishery. The Grand Jury Report is extremely damaging. The deadly combination of all 3 could cost a bundle.
    Is the City able to tender this lawsuit to their insurance carrier?
    Has the City at anytime called in a neutral risk mitigator to give us the cost of the downside consequences? If so what are we looking at? The Town needs to know these hard questions and answers since the overall cost will be passed off to the taxpayers.
    It's time for a citizens committee to take a look at all angles of the pending appeal.
    The handwritting is on the wall when you see City employees quietly skulking away with golden parachutes. Very bad sign for Calistoga.
  5. Reg
    Report Abuse
    Reg - March 09, 2013 9:58 am
    there is a typo- please post this one. thank you.


    These lawsuits are only two parts of the "relaxed" interpretation of laws, regulations, and agreements by the City of Calistoga for reasons of expediency. This photo exhibits the city's disregard for rules regarding wastewater spraying. The Clean Water Act clearly states that recycled water is not to be sprayed while it is raining (.70 inches / Calistoga / 24 hours)


    https://plus.google.com/u/0/photos/113567374702300329677/albums/5852849081992023825/5852849078736115586
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