Wednesday, April 6, 2011
C.A. Revives Bid to Force State To Write Drinking Water Plan
By a MetNews Staff Writer
A mandate action seeking to force state officials to write a plan for dealing with drinking water problems around the state, particularly in smaller communities, has been revived by the Fifth District Court of Appeal.
In an opinion Monday by Justice Rebecca Wiseman, the court said a Fresno Superior Court judge erred in ruling that a statute requiring the state to write such a plan every five years had been suspended by operation of law.
Wiseman said the mandate was not suspended because the statute provides that such a suspension occurs only if set forth in “a Budget Act.” The 1992 legislation that eliminated the fee which would have been used to pay for preparation of future plans was not a budget act, so the mandate is not suspended, the justice said.
The panel also held that it would not violate the constitutional separation of powers for a court to order a state agency to comply with a specific statutory mandate.
While the issue before the appellate court was a narrow one, California Rural Legal Assistance, Inc., which represented the petitioners, said the case represented an effort to deal with a significant lack of safe drinking water in smaller, poorer rural communities in the Fresno area.
The appellate panel sent the case back to the trial court to determine whether a writ of mandate is the appropriate remedy for the state’s failure to write a plan.
The case is Newton-Enloe v. Horton, 11 S.O.S. 1757.
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