Measure A committee slams Calistoga

Report: City used water money inappropriately
2013-02-06T22:27:00Z 2013-02-06T22:29:02Z Measure A committee slams CalistogaPETER JENSEN and SEAN SCULLY Napa Valley Register
February 06, 2013 10:27 pm  • 

The city of Calistoga was wrong to use $525,000 in money collected under a special flood control tax to defend against a water-related lawsuit, an oversight committee says in a new report.

An attorney for Calistoga vociferously defended the city against that charge Wednesday evening at a meeting of the Measure A Financial Oversight Committee. Attorney Matthew Visick called the report inaccurate and said it misstated the legal history of the lawsuit to draw its conclusions.

The money was spent combating a lawsuit by Grant Reynolds, the San Diego man who has sued the city repeatedly over water use and its management of the Kimball Dam, particularly the issue of allowing more water to flow downstream to protect the spawning grounds of salmon and trout. Reynolds began suing Calistoga in 2009.

The city, with county approval, used the money to pay its lawyers, saying it was protecting its water rights. The actual legal costs were $1.5 million, although Measure A only covered a portion of that. Voters approved Measure A in 1998 to fund flood control projects throughout the county.

Wednesday’s meeting strayed between debates of the merits and history of Reynolds’ lawsuit — and Calistoga’s right to defend itself from it — and the issue before the committee, which was the appropriateness of using Measure A money to pay for the city’s legal costs. It ultimately delayed any action on the report until May.

Relying heavily on Reynolds’ extensive legal file from the lawsuit, an ad hoc subcommittee paints a harsh picture of the city’s conduct, saying there was at least a 30-year pattern of refusing to comply with demands by state regulators to monitor the amount of water flowing into and out of the reservoir and to release a sufficient amount to protect fish habitat.

Members said the records demonstrate that the city knew, or should have known, that its claim that it was operating in compliance with its water use licenses and other regulations was wrong.

Genji Schmeder, a member of the subcommittee that produced the report, said Reynolds’ lawsuit helped coerce the city to take action on spilling water from Kimball Reservoir for fish, which included bringing the state government in to file a companion brief to the lawsuit. The city is working on producing a bypass plan that would release water from the dam for fish. It has an interim one currently.

“It’s the lawsuit that got the state to be serious,” Schmeder said. “When the city of Calistoga realized the state was on its back, they just conceded.”

Visick, who represented Calistoga in the lawsuit, vehemently denied that assertion. He said the city and the state would have worked out the bypass issue outside of a courtroom, and Reynolds’ lawsuit only served as a drain on public tax coffers.

“I was rather shocked when I read this report,” Visick said. “I find myself reading it and feeling like I’ve taken a three-year leap backward in time. To be relitigating that issue here at this committee meeting is not only needless, it’s unfortunate.”

Visick criticized the report for relying on Reynolds’ arguments in the lawsuit, and said it misread the regulatory requirements of the city’s two water use licenses, and conflated them with a permit the city never actually used.

The subcommittee’s strong conclusions were not unanimous. Member Peter Murphy dissented, saying he thought the spending was appropriate. Schmeder and David Smith agreed in their criticism of the city.

In explaining his dissent, Murphy said he believed the legal costs the city accrued were appropriately funded by Measure A because it involved defending its water right. Measure A allowed for the city to use money to improve the reliability of its water supply, he said.

“Calistoga is entitled to defend themselves,” Murphy said. “They’re entitled to spend their money. For a million and a half dollars you could probably bus the fish up to Calistoga and have a spa day for them. My conclusion was that it was an appropriate use of the Measure A money but not particularly effective.”

Smith disagreed with that logic, and said it could be used to broadly interpret the measure’s language to pay for any number of things. In his view of what Measure A was intended to do for Calistoga, a reliable water supply refers to Kimball Dam, not attorney’s fees, he said.

“That flexibility is a danger,” Smith said. “You include a lot of stuff with that. Water supply reliability means a dam that works. The reliability is not the same as water rights.”

The subcommittee was formed last year after the Napa County grand jury criticized the city for its use of Measure A money and the county for lax supervision of the city’s funding requests. The grand jury report was particularly harsh in its assessment of the Financial Oversight Committee itself, which it called a “sleeping watchdog” in the process of handing out the flood control money.

Calistoga has used the Measure A money in part for flood control improvements in the Grant Street area and, most prominently, to pay for almost half of a new $6 million water storage tank on Mount Washington.

Reynolds sued unsuccessfully to block that use of Measure A money. The grand jury found that the use of the money was “inappropriate,” but placed most of the blame on county officials for failing to stop Calistoga from using the funding.

The subcommittee said it decided to focus exclusively on the legal spending and expressed no opinion on any of the other findings in the grand jury report, although its narrative of the dam’s history closely tracks the grand jury’s account.

The legal spending examined by the subcommittee came during one of Reynolds’ earlier lawsuits, alleging that the city had violated its “public trust” by failing to protect fish habitat.

That lawsuit was eventually dismissed, but not before the city agreed to release more water downstream. The city has denied that the agreement was in response to the lawsuit, saying it was instead a response to pressure from state regulators.

“The invalidity of the city’s reasoning lies primarily in the fact that Kimball Dam was operated out of compliance through most of its existence and demonstrably so in the years leading up to the Reynolds lawsuit,” the report states. “The requirements of permits and law are not a valid defense when the license holder is continuously and obstinately violating them.”

The subcommittee agreed with the grand jury’s view that the county should have stepped in to stop Calistoga from using the Measure A money. Members went a step further and said the county should have forced the city to comply with demands by regulators to protect fish habitat.

“Instead, county government took no side in a battle for the life of the upper Napa River,” they wrote, “and then rewarded the party in the wrong with funds raised for the Napa River flood project.”

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(6) Comments

  1. Ricecooker
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    Ricecooker - February 07, 2013 8:14 am
    This fraud was brought to a court of law and was joined by the State Attorney General and has continued to this date.
    The one representative from Calistoga was just appoitted a City Council Member.
  2. publiusa
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    publiusa - February 07, 2013 10:19 am
    Three experienced members of the citizens oversight committee on this subcommittee took 3 months to figure out this mess but did not agree and in fact had diametrically opposed opinions - that is not a slam on Calistoga! That is a slam to whoever wrote the terms of Measure A in the first place and an indication of the impossibly unclear language of Measure A,
  3. Ricecooker
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    Ricecooker - February 08, 2013 8:03 am
    The flood control measure A for Calistoga, was stated on the Ballot for kimball dam upgrades and Grant street flooding (from Mora to Michele Way).
    The simple fact that it was not even undertaken is fraudulently evident.
    Grant street just opened a sink hole and there is no money to fix it as it will be a steel plate crossing for who knows how long.
    The fraud was a joint effort of many individuals.
    The fact that several have retired is the begining and the future will weed out the culprits, still at the helm of the sinking ship some were appointed or elected and some were hired.
    The voting public will not rest until the truths are learned from the 2013 Grand Jury Report that will fame the lame.
  4. glenroy
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    glenroy - February 08, 2013 10:10 am
    The water district, city, has a right to manage public resources for the benefit of all, particularly in this instance to create jobs that pay net taxes… as opposed to Napa which just raises fees to keep employees with nothing to do on the payroll which is exactly what department heads are asking and doing today.
    I commend Calistoga for fighting extortion which is exactly what this was.
  5. Ricecooker
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    Ricecooker - February 09, 2013 6:47 pm
    mr. Glenroy your reasoning seems flawed if you read the report, the city of calistoga was repeatedly fradulent for many years on the Operation Kimball Dam for not allowing water to pass through.
    The Living Rivers Council filed a complaint of the last dewatering on May 8th 2008, with photos of a dry riverbed.
    The fact was the City was giving illegal qauntity's of water for frost protection of vineyards!
    No one lost a job three attorneys began a deleterious defense that took a million dollars of Measure A Money then caved and settled.
    The city raised the rates two years ago and is now again at it.
    This begs the question why was the water enterprise showing a financial spike when the attorney's were paid with Measure A money.
    I suspect you are not aware of a quanified State Water License that was misregarded by The Public Works, resulting in over 150 violations found Last year.
    Grant Reynolds opened this fight for the fish and I believe the Napa River should remain viable.
    No extortion?
  6. Grant Reynolds
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    Grant Reynolds - February 10, 2013 3:58 pm
    DFG law requires a dam operator to release enough water to keep the downstream fishery in good condition. To the City that meant it could claculate how much water evaporated over a 17-acre lake and deduct it from the bypass amount. (Presumably the Steelhead could fly)City water licenses allowed it to take water from the creek and had nothing to do with what DFG code required for bypass. After being fined in 2001, it promised to install flow meter devices, so City hung a bucket on a tree branch. It is now 2013 and still no flow metering. The City's bypass plan shuts off all flow from September 1 until the dam overflows. No fish survive. The bypass plan is a joke! Measure A was passed to preserve the infrastructure that was in place in 1998 for the population that existed then. The Mt Washington water tank did not exist in 1998. City would not have had to go to court if it had obeyed the law. City attorneys paid by Measure A moola said it was okay to pay them. Good for them, but wrong .
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