Filed 7/12/13 (unmodified opn. attached)
                                  CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   THIRD APPELLATE DISTRICT
                                             (Sacramento)
                                                 ----




COUNTY OF SISKIYOU,                                                   C067252

                 Petitioner,                                       (Super. Ct. No.
                                                                  34201080000583)
        v.
                                                               ORDER MODIFYING
THE SUPERIOR COURT OF SACRAMENTO                                   OPINION
COUNTY,
                                                                 [NO CHANGE IN
                 Respondent;                                       JUDGMENT]

ENVIRONMENTAL LAW FOUNDATION et al.,

                 Real Parties in Interest.



THE COURT:

It is ordered that the opinion filed herein on June 13, 2013, be modified as follows:

1.     On page 8, the first sentence of the third full paragraph, “Siskiyou Superior Court”
is changed to “Sacramento Superior Court,” so the sentence reads as follows:

               The petition filed with the Sacramento Superior Court alleges
        Siskiyou failed in its duty under the public trust doctrine to monitor and



                                                  1
       regulate groundwater extractions “that are not subject to the 1980
       adjudication.”

2.     On page 13, the first full paragraph, beginning with “Given that venue lies,” is
revised to read as follows:

               Even if venue lies in both Sacramento and Siskiyou, the court did
       not err in denying Siskiyou‟s motion for change of venue under
       section 392, subdivision (a) in the absence of any authority that section 392,
       subdivision (a) trumps all other venue statutes.

3.   On page 13, the second sentence of the second full paragraph, beginning with
“However, section 392 is limited,” is revised to read as follows:

       Even if water is real property, however, section 392 is limited to certain
       types of actions involving real property.

There is no change in the judgment.

BY THE COURT:



            RAYE               , P.J.



            HULL               , J.



            MAURO              , J.




                                             2
Filed 6/13/13 (unmodified version)
                                     CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                             (Sacramento)
                                                 ----




COUNTY OF SISKIYOU,                                                 C067252

                 Petitioner,                                      (Super. Ct. No.
                                                                 34201080000583)
        v.

THE SUPERIOR COURT OF SACRAMENTO
COUNTY,

                 Respondent;

ENVIRONMENTAL LAW FOUNDATION et al.,

                 Real Parties in Interest.




        ORIGINAL PROCEEDING in mandate. Petition denied.

      Best Best & Krieger, Roderick E. Walston; Thomas P. Guarino, County Counsel,
and Natalie E. Reed, Deputy County Counsel, for Petitioners.

        No appearance for Respondent.



                                                  1
     Michael E. Wall and Noah Garrison for Natural Resources Defense Council as
Amicus Curiae on behalf of Respondent and Real Parties in Interest.

      James Wheaton, Danielle Fugere, Jennifer Maier; Glen H. Spain; and Richard
Michael Frank for Real Parties in Interest Environmental Law Foundation, Pacific Coast
Federation of Fishermen‟s Associations, and Institute for Fisheries Resources.

       Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Senior Assistant
Attorney General, Robert W. Byrne, Daniel M. Fuchs, Allison Goldsmith, and Mark
Poole, Deputy Attorneys General, for Real Party in Interest State Water Resources
Control Board.




       Real parties in interest Environmental Law Foundation, Pacific Coast Federation
of Fishermen‟s Associations, and Institute for Fisheries Resources (real parties) filed a
petition for a writ of mandate in Sacramento County, seeking to halt the issuance of well-
drilling permits for nonadjudicated groundwater within the Scott River sub-basin in
Siskiyou County. Real parties alleged County of Siskiyou (Siskiyou) and the State Water
Resources Control Board (Board) had failed to manage certain described groundwater
resources interconnected with the Scott River in a manner consistent with the public trust
doctrine. Real parties prayed for injunctive, mandamus, and declaratory relief to
recognize the authority of the Board to protect such groundwater under the public trust
doctrine, and to compel the County to put in place a well-drilling permit or management
plan to protect public trust resources.
       Siskiyou demurred to the petition, asserting the Siskiyou Superior Court had
exclusive jurisdiction by virtue of its 1980 decree that adjudicated water rights in the
Scott River and reserved jurisdiction to review and modify the decree in the interests of
justice. Siskiyou also moved to change venue based on the argument that groundwater
constitutes real property, and under Code of Civil Procedure section 392,




                                              2
subdivision (a)(1), actions involving right or interest to real property must be tried in the
superior court in the county where the property is located.1
       The trial court overruled the demurrer and denied a change of venue, whereupon
Siskiyou brought the present action for a writ of mandate, challenging both decisions.
We deny the petition.
                  FACTUAL AND PROCEDURAL BACKGROUND
Petition for Writ of Mandate
       The underlying action, filed in Sacramento Superior Court, seeks a determination
that the public trust doctrine, applicable to navigable water and fish in California, applies
as well to groundwater with a hydrological connection to public trust waters in the Scott
River Valley. Real parties assert that the Board‟s authority to protect and manage public
trust resources extends to the protection of the described groundwater resource and that
Siskiyou, which has a duty to protect public trust resources, must act to protect and
manage the groundwater resource through monitoring, regulating, and limiting
extractions of groundwater. Real parties assert Siskiyou‟s failure to act is causing injury
to the Scott River and its populations of fish and wildlife, and pray for mandate and
injunctive relief to cease the issuance of well-drilling permits for groundwater until
Siskiyou complies with its public trust duties.
       Recognizing that in 1980 the Siskiyou Superior Court issued a decree adjudicating
“all surface water rights in the Scott River stream system” and “all rights to ground water
that is interconnected with the Scott River,” and reserved jurisdiction to thereafter
“review its decree and to change or modify the same as the interests of justice may
require,” real parties limited their prayer for relief to “groundwater not previously
adjudicated within the Scott River sub-basin.” The petition alleges the adjudication‟s



1 All further statutory references are to the Code of Civil Procedure unless otherwise
designated.

                                              3
final order and decree “does not affect, regulate or prohibit any wells or sumps to be
constructed „at least 500 feet from the Scott River or at the most distant point from the
river on the land that overlies the interconnected groundwater, whichever is less.‟
[Citation.] No groundwater beyond that 500-foot (or less) zone of adjudication was
considered in, is affected by or regulated through the adjudicative process.” Real parties
also state they do not request a reopening of the 1980 adjudication, but “[w]hether that is
deemed a necessary step by the [Board] to managing and regulating groundwater
pursuant to the State‟s duties under the Public Trust Doctrine is not an issue before this
Court.”
       The petition states venue is proper in Sacramento under section 401,
subdivision (1) because the Board is a California state agency and venue is proper where
the Attorney General has an office.
       In response to the petition, Siskiyou filed a demurrer for lack of jurisdiction and a
motion to transfer venue. Siskiyou argued the Siskiyou Superior Court possesses
exclusive jurisdiction to hear the case. According to Siskiyou, contrary to real parties‟
assertion, the Scott River decree “expressly applies to and regulates all interconnected
groundwater in the Scott River basin, including interconnected groundwater located more
than 500 feet from the river. The petitioners‟ argument that the „zone of adjudication‟ for
interconnected groundwater is limited to 500 feet is contradicted by the express language
of the decree itself. . . . [¶] Under traditional principles of jurisdiction, the Siskiyou
County Superior Court has exclusive jurisdiction to hear the petitioners‟ public trust
claim, because the claim would require the Board and County to regulate the same Scott
River interconnected groundwater resource that is the subject of the Siskiyou County
court‟s decree.”
       In the alternative, Siskiyou moved to transfer venue to the Siskiyou Superior Court
under section 392, subdivision (a) (1), which provides that the proper court to hear a case
involving a determination of a right or interest in real property or for injuries to real

                                               4
property is the county where the real property is situated. Siskiyou argued the Scott
River interconnected groundwater is real property situated in Siskiyou County.
Trial Court Decision
        The court overruled the demurrer and denied the motion for a change of venue.
The court determined that the venue motion lacked merit because the petition alleges
injury to usufructuary water rights rather than injury to real property. The court also
overruled the demurrer because the 1980 decree is limited to groundwater within a
delineated geographic area and the petition does not seek to adjudicate any groundwater
rights specifically identified in the decree. Thereupon Siskiyou filed a timely petition for
a writ of mandate. We issued an alternative writ directing the trial court to grant the
requested relief or show cause why it has not done so, and stayed further proceedings in
the trial court pending further order of this court.2
                                       DISCUSSION
        Real parties‟ substantive claims will be addressed in due time. The question raised
by the current mandate proceeding is whether those claims can be addressed in
Sacramento Superior Court, or must be tried in the court that first adjudicated rights to
groundwater interconnected with the Scott River and reserved jurisdiction to modify its
adjudication. Resolution of that question requires a review of the 1980 decree, the scope
of the Siskiyou Superior Court‟s reserved jurisdiction, and whether the public trust claims
raised by real parties intersect with the issues adjudicated in the 1980 decree. Assuming
the Sacramento Superior Court can properly exercise jurisdiction, there remains for
consideration the question of venue and whether Siskiyou is correct in its insistence that
trial of this matter can only be conducted in Siskiyou County, where the Scott River is
located.




2   We grant the request for judicial notice filed by the Board on March 21, 2011.

                                               5
Exclusive Concurrent Jurisdiction
       Siskiyou argues the trial court erred in concluding the Siskiyou Superior Court
lacked exclusive jurisdiction over the petition by virtue of the 1980 decree. The rule of
exclusive concurrent jurisdiction applies, Siskiyou reasons, because the Siskiyou
Superior Court issued the 1980 decree adjudicating all water rights in the Scott River and
reserved continuing jurisdiction over that subject matter.
       The established rule of exclusive concurrent jurisdiction provides that where two
or more courts possess concurrent subject matter jurisdiction over a cause, the court that
first asserts jurisdiction assumes it to the exclusion of all other courts. In essence, the
rule renders concurrent jurisdiction exclusive with the first court. (Franklin &
Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1175
(Franklin & Franklin).)
       “The rationale supporting the rule is a highly practical one. As Witkin has it,
„Justification for the rule [of exclusive concurrent jurisdiction] rests on practical
considerations. If the identical cause of action is asserted by the same plaintiff in two
suits, there is no doubt that the first court has priority, but this can rarely happen. What
does happen is that parties to the same controversy or transaction . . . file separate suits on
their individual causes of action, usually against each other. Although their claimed
rights and therefore their alleged causes of action are distinct, the issues are
substantially the same, and individual suits might result in conflicting judgments. The
rule of priority is designed to avoid the unfortunate result[s] of these conflicts by
requiring, in effect, a consolidation of the separate actions in the court in which
jurisdiction of the parties first attached. [Citations.]‟ ” (Franklin & Franklin, supra,
85 Cal.App.4th at p. 1175, quoting 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction,
§ 420, p. 1031.)
       To maintain both the practical nature of the rule and the historically flexible rules
of equity, exactitude is not required. That the parties in the two actions are not entirely

                                               6
identical, and that the remedies sought by the two actions are not precisely the same, is
not controlling. Instead, it is sufficient for the exercise of equitable jurisdiction that the
issue in both actions is the same and arises out of the same transaction or events.
(Franklin & Franklin, supra, 85 Cal.App.4th at p. 1175.)
       The trial court considered at length Siskiyou‟s claim of exclusive concurrent
jurisdiction. The court found the issues involved in the 1980 decree differed from those
in the petition. According to the court: “The issue before me is whether or not
fundamentally the State Water Resources [Control] Board has the authority to apply
Public Trust Doctrine principle to groundwater and groundwater diversion in Scott
stream system, and whether or not the County should be compelled to comply with those
Public Trust Doctrine principles in the evaluation and ultimate issue or nonissuance in
new diversion permits. [¶] These two things are different. There is an adjudication
decree that forecloses new diversions within a delineated specified area. This lawsuit
doesn‟t affect that. [¶] The adjudication agreement memorializes existing diversions and
water rights. This lawsuit does not address that. [¶] This lawsuit proposes to impose the
authority or make clear the authority that State Water Resources Control Board may have
in applying the Public Trust Doctrine to that system, and that the County must do the
same in their permitting process. [¶] In so doing it‟s speculative, attenuated, unknown
what in particular which is the County‟s fear here, [what] the State Water Resources
Control Board would do.”
       The court further stated that should the Board take any enforcement action, any
such action would have to go through the normal public notice administrative process,
which is both thorough and subject to independent judicial review. In the court‟s eyes,
the possibility of such action was remote, but if it did occur there was a “powerful
argument that such a proposed amendment which would be not unlike the amendment
procedure that is envisaged in the adjudication decree itself would have to go back



                                               7
through an amendment and accepted process with the Siskiyou court. That is not the
lawsuit that is before me. That‟s a different lawsuit.”
       Siskiyou disagrees with the trial court, arguing the rule of exclusive concurrent
jurisdiction applies because the 1980 decree adjudicated all water rights in the Scott
River, including groundwater, and expressly reserved “continuing jurisdiction” over the
“subject matter hereof,” including the power to “change or modify the same as the
interests of justice may require.” Real parties, Siskiyou contends, seek to apply the
public trust doctrine to the interconnected groundwater of the Scott River, thus affecting
the rights to the use of the water, the very subject matter of the 1980 decree. Therefore,
as the first court to exercise jurisdiction over water rights to the groundwater, the
Siskiyou Superior Court has exclusive jurisdiction to hear real parties‟ petition.
       The 1980 decree set forth a plan for Siskiyou‟s issuance of groundwater permits
within the boundary of the adjudication. Approximately 59 water users under the decree
are allowed to construct additional wells.
       The petition filed with the Siskiyou Superior Court alleges Siskiyou failed in its
duty under the public trust doctrine to monitor and regulate groundwater extractions “that
are not subject to the 1980 adjudication.” The petition also contends Siskiyou failed to
undertake “any review of whether changes to their current practice regarding well-
drilling permits are necessary to fully protect the public trust resources in the Scott
River.” According to the petition, Siskiyou is not protecting the Scott River from
“injurious extractions of interconnected groundwater through their pattern and practice of
issuing new well drilling permits (not subject to the adjudication) without any analysis of
the impacts.” Real parties seek an order from the court declaring that “this pattern and
practice by Respondent Siskiyou County is in violation of the Public Trust Doctrine.”
       Siskiyou argues the doctrine of exclusive concurrent jurisdiction applies when the
two actions relate to the same subject matter. Therefore, since the petition and the 1980
decree both relate to the management and regulation of the interconnected groundwater

                                              8
of the Scott River, the exclusive concurrent jurisdiction doctrine vests exclusive
jurisdiction in Siskiyou. In effect, under Siskiyou‟s analysis of exclusive concurrent
jurisdiction, jurisdiction depends exclusively on whether the action pertains to the same
subject matter: if the subject matter is the same, exclusive concurrent jurisdiction
automatically applies.
       However, under the rule of exclusive concurrent jurisdiction, when two courts
have concurrent jurisdiction over the subject matter and the parties, the first court to
assume jurisdiction has exclusive and continuing jurisdiction “until such time as all
necessarily related matters have been resolved.” (California Union Ins. Co. v. Trinity
River Land Co. (1980) 105 Cal.App.3d 104, 109; see Lawyers Title Ins. Corp. v. Superior
Court (1984) 151 Cal.App.3d 455, 460.) Exclusive concurrent jurisdiction is not a
permanent, immutable grant of jurisdiction in the first court over everything even
remotely connected to the subject matter. The first court retains exclusive jurisdiction
only until all necessarily related matters are resolved.
       In addition, although the parties in the two actions and the remedies sought need
not be precisely the same, the issues in the two proceedings must be substantially the
same and the individual suits must have the potential to result in conflicting judgments.
(Franklin & Franklin, supra, 85 Cal.App.4th at p. 1176.)
       Here, the question of whether Siskiyou must follow the public trust doctrine to
monitor groundwater extractions that are not subject to the 1980 adjudication is not a
matter necessarily related to the 1980 decree. There is no evidence the public trust
doctrine was even considered in the formulation of the 1980 decree.
       Nor are the issues in the petition “substantially the same” as the issues adjudicated
in the 1980 decree. In the 1980 decree, the court sought to determine water rights to
groundwater interconnected with the Scott River. The petition asks the court to
determine whether or not the Board and Siskiyou have the authority under the public trust
doctrine to protect public trust resources. The petition argues Siskiyou has failed to

                                              9
consider the public trust doctrine in issuing permits for wells used to extract groundwater
interconnected with the Scott River.
         The requirements that the matter in the latter case be necessarily related, and that
the issues in the two cases be substantially the same, are limits on the rule of exclusive
concurrent jurisdiction. These limits apply in the present case.
         Moreover, the rule of exclusive concurrent jurisdiction is a rule of policy, and
countervailing policies may make the rule inapplicable. (People ex rel. Garamendi v.
American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770.) Such flexibility further
militates against a rigid application of the doctrine. Siskiyou does not have exclusive
jurisdiction.
Venue
         Standard of Review
         A party aggrieved by an order denying a motion for a change of venue may
petition this court for a writ of mandate to direct the superior court to transfer venue.
(§ 400.) We review such petitions under an abuse of discretion standard. (Fontaine v.
Superior Court (2009) 175 Cal.App.4th 830, 836.) We resolve all conflicts in favor of
the prevailing party and draw all reasonable inferences in support of the trial court‟s
order. (K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 494, fn. 2.)
         Siskiyou agrees that we apply an abuse of discretion standard but contends that
since its petition presents purely legal questions concerning the applicability of
section 392 and the doctrine of exclusive concurrent jurisdiction, and since no evidentiary
hearings were held, we exercise our independent judgment and review the issues de novo.
(O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568, 586.) We
agree.
         Section 392
         In requesting a transfer of venue, Siskiyou relied on section 392,
subdivision (a)(1). According to Siskiyou, the trial court erred in finding section 392

                                               10
inapplicable since water is real property under the venue statutes and section 392 applies
to claims based on both public rights and private rights.
         Section 392 provides: “(a) Subject to the power of the court to transfer actions
and proceedings as provided in this title, the superior court in the county where the real
property that is the subject of the action, or some part thereof, is situated, is the proper
court for the trial of the following actions: [¶] (1) For the recovery of real property, or of
an estate or interest therein, or for the determination in any form, of that right or interest,
and for injuries to real property. [¶] (2) For the foreclosure of all liens and mortgages on
real property. [¶] (b) In the court designated as the proper court in subdivision (a), the
proper court location for trial of a proceeding for an unlawful detainer, as defined in
Section 1161, is the location where the court tries that type of proceeding that is nearest
or most accessible to where the real property that is the subject of the action, or some part
thereof, is situated. Otherwise any location of the superior court designated as the proper
court in subdivision (a) is a proper court location for the trial. The court may specify by
local rule the nearest or most accessible court location where the court tries that type of
case.”
         Siskiyou contends Code of Civil Procedure section 392 applies because real
parties seek a determination of the public‟s right or interest in the interconnected
groundwater of the Scott River and also seek to prevent alleged injuries to the
groundwater of the Scott River. Siskiyou points out Civil Code section 658, paragraph 3
defines real property as including “[t]hat which is incidental or appurtenant to land,” and
Civil Code section 662 states that a “thing is deemed to be incidental or appurtenant to
land when it is by right used with the land for its benefit, as in the case of a way, or
watercourse, or of a passage for light, air, or heat from or across the land of another.”
Citing these statutes, Siskiyou argues the groundwater at the center of the petition is, like
a watercourse, used with the land for its benefit and is therefore real property under
section 392.

                                              11
       As to the trial court‟s determination that water is not real property within the
meaning of section 392 but instead is a usufructuary right involving the concepts of
beneficial use and public benefit, Siskiyou argues the trial court confused the right to use
water with the corpus of the water itself; the concept that a water right is usufructuary and
incapable of possession “describes only the nature of the water right, and not the nature
of the corpus of water itself.”
       In support, Siskiyou cites several cases in other contexts holding that water,
whether in streams, lakes, or ponds, or in percolation through the soil, is part of the land.
In Copeland v. Fairview Land etc. Co. (1913) 165 Cal. 148, 153-154, the court found
water stored in a reservoir is not personal property that can be valued as part of an
investment upon which a water company is entitled to a reasonable return. The court
determined the right to water to be used in irrigation is a right in real property in
Schimmel v. Martin (1923) 190 Cal. 429, 432. A trio of cases have found the right to
water is an easement appurtenant to land. (Stanislaus Water Co. v. Bachman (1908)
152 Cal. 716, 724; San Juan G. Co. v. San Juan R. etc. Assn. (1939) 34 Cal.App.2d 159,
174; Relovich v. Stuart (1931) 211 Cal. 422, 428.)
       Since the petition alleges Siskiyou and the Board have a duty to protect Scott
River groundwater under the public trust doctrine, implicating an interest in the
groundwater, and alleges unregulated drilling of wells continues to cause injury to the
Scott River as well as to the fish and wildlife habitat, Siskiyou argues, under section 392,
venue lies in Siskiyou.
       There are at least two problems with this analysis.
       First, Siskiyou cites no authority for the proposition that if venue is proper in both
Sacramento County and Siskiyou County, the trial court must transfer venue to Siskiyou,
or that section 392 takes precedence over other venue statutes.
       Section 397 sets forth the grounds for granting a change of venue, including
“[w]hen the court designated in the complaint is not the proper court.” (§ 397, subd. (a).)

                                              12
Here, venue is proper in Sacramento under section 401, subdivision (1), which states:
“Whenever it is provided by any law of this State that an action or proceeding against the
State or a department, institution, board, commission, bureau, officer or other agency
thereof shall or may be commenced in, tried in, or removed to the County of Sacramento,
the same may be commenced and tried in any city or city and county of this State in
which the Attorney General has an office.” If venue is proper in Sacramento, then the
grounds set forth in section 397 do not apply. In addition, section 392 states, in part,
“(a) Subject to the power of the court to transfer actions and proceedings as provided in
this title,” language which does not denote priority over other venue provisions.
       Given that venue lies in both Sacramento and Siskiyou, the court did not err in
denying Siskiyou‟s motion for change of venue under section 392, subdivision (a) in the
absence of any authority that section 392, subdivision (a) trumps all other venue statutes.
       Second, Siskiyou‟s venue theory rests on the simple premise that water is real
property and under section 392 an action involving water should be tried in the county in
which the water is located. However, section 392 is limited to certain types of actions
involving real property. The primary thrust of the present action is the regulatory
authority of the Board over the application of the public trust doctrine to interconnected
ground and surface water. It is not an action “[f]or the recovery of real property, or of an
estate or interest therein, or for the determination in any form, of that right or interest, and
for injuries to real property” or “[f]or the foreclosure of all liens and mortgages on real
property.” (§ 392, subd. (a)(1), (2).) It seeks declaratory and injunctive relief against
Siskiyou and the Board regarding their regulatory authority. The individual water rights
holders are not parties to the action. No relief is sought against them, nor are their water
rights affected by the relief sought.




                                              13
                                        DISPOSITION
       The petition for writ of mandate is denied. The stay previously ordered is vacated
upon finality of this decision. Real parties shall recover costs in this original proceeding.
(Cal. Rules of Court, rule 8.493(a).)



                                                            RAYE               , P. J.



We concur:



         HULL               , J.



         MAURO              , J.




                                             14
