Thicker Than Water

In the late 1980s, National Marine Fisheries Service and the Department of Justice sued Glenn-Colusa Irrigation District for killing winter-run Chinook salmon due to a faulty fish screen. That’s when Sacramento rice farmer Donald Bransford became involved. A newcomer to the complex web of California’s water laws, Bransford attended a seminar on the topic, where he was surprised to hear the presenter not only mention Bransford’s situation—but that he would lose his upcoming litigation.

Afterward, Bransford spoke to the presenter, attorney Stuart Somach. And then he hired him.

“He understands the issues and the psychology of different diverse groups involved in California water,” says Bransford, who served as president of the district for more than 30 years. “And he knows how to bridge the gap between the groups on hot-button issues.”

Somach, a founding shareholder at Somach Simmons & Dunn, steered Bransford’s group through the knotty litigation—which ended up stretching on for over a decade and led to a settlement stipulating the construction of an $85 million fish screen.

“Water law is for the long haul,” says Paul Simmons, who serves as special counsel for Somach Simmons & Dunn. “Time after time, I’ve seen Stuart set up things in negotiation that had a payoff you didn’t see until long after. The settlements and legislation are the product of a thousand steps. No one is perfect on those thousand steps, but Stuart doesn’t have many missteps.”

Over the years, Somach has helped shape laws in California and beyond that determine how we use, conserve, manage and divide water. When the Central Arizona Water Conservation District needed advice on intricate Colorado River issues, they turned to him. When the Arizona Power Authority was trying to allocate power generated from Hoover Dam, they asked Somach to represent them. When politicians and legislatures want to know the ins and outs of a water bill, they ask Somach to testify before committees, call him into meetings, or pull him aside for private chats—as President Clinton did on one occasion.

“I know it sounds condescending, but I never get nervous when I step into a courtroom, because I am well aware no one is going to know more about these water issues than I do,” Somach says. “When I testify about legislation, I know this stuff backwards and forwards. I get a laugh when I deal with legislation, today, that I helped draft decades ago.”

Somach remembers sitting on the street corner as a youth in Chicago, mesmerized, as he watched water swirl into the gutter. “I like to kayak, swim and fish. We must drink water and bathe,” he says. “But the intriguing aspects of water are more aesthetic. Going back to the ancient Greeks, it was one of the basic elements. There’s something intrinsically intriguing about water.”

He never imagined water—let alone water law—would comprise his career, however. After the family moved to Southern California in the ’60s, his mom got a job at a bathing-suit company and his father ran testimonial dinners for City of Hope, raising money for the cancer center.

Somach ran the half-mile well enough at Los Angeles’ Pierce College to be recruited by San José State University, where he ran with Tommie Smith and John Carlos. “I had the opportunity to be a very big fish in a little pond, or a little fish in a very big pond, and went the latter way,” he says.

In San Jose, Somach met his wife, Christine, in a Spanish class, and they stayed together as he earned a master’s degree and teaching certificate. The couple then moved north to her hometown, Mount Shasta, where he taught in junior high schools.

It was a seemingly idyllic life, except for one thing: Somach didn’t like teaching. “I’ve wondered over the years how I actually fell into it, because it wasn’t anything I aspired to,” he says. “My wife laughs about it, because if I had stuck it out for another six months, my student loans would have been forgiven.”

Unsure of his calling, Somach took an aptitude test, which suggested he might enjoy being a lawyer. “My daughter had just been born, and I was giving up teaching and relocating,” Somach, 28 at the time, says. “I told my wife I would go to the first law school that accepted me.”

Environmental law was just beginning to blossom in 1976 when Somach enrolled at the University of the Pacific, McGeorge School of Law. His future came in the form of a visiting professor, Frank J. Trelease, who had written the leading case book on natural resources and was among the first scholars to see water law as the cornerstone of American society.

“I was intrigued because I had never taken a course from someone who was the person in their field,” says Somach. “I debated, and thought, ‘What am I ever going to do with water? I’m not going to take that class. My wife talked me into it, saying, ‘You’ve worked really hard. You should take the class just for the fun of it.’”

But water law was beyond fun. During his second year, Trelease summoned Somach from a lecture hall. His publisher wanted to put out a new edition of his water-law book, and Trelease needed a research assistant. Somach already had a clerkship with the U.S. Department of the Interior’s Sacramento office, but ended up working 20 hours per week in each position—on top of his schooling—that year.

After earning his J.D. in 1979, Somach found himself in the nation’s capital, working for both the Department of Justice and the Department of the Interior. “When I got to Washington, coincidentally, most of the people who handled water law had retired,” he says. “Water fascinates me, and being able to contemplate it through water law was a dream.”

Just as Somach had given up the security of teaching, he gave up the security of a government post—joining a Sacramento firm in 1984 before opening his own firm in 1991. “I saw a lot of people in government were just hanging in there for their pensions,” he says. “I had a great job, but I realized that if I don’t try private practice now, I might never do it.”

Having helped literally write the book on water law, Somach quickly became the legal go-to on the topic. Congresspeople sought his advice in private, and he testified before their panels in public. People liked that Somach knew everything about water law. But, even more, they liked that he knew how to make things work.

“Stuart is a litigator, but he’s a problem-solver first,” says Bransford. “He’s articulate and very firm, but not bombastic or overbearing. It’s like watching a master that everyone defers to.”

And seeks out. After he wrote an article on endangered species in the early ’90s, Somach was invited to a big meeting at the White House. Afterwards, President Clinton pulled him aside, probing him with questions as they leaned against a bookcase. “I thought to myself, ‘I can’t believe the president of the United States has spent 15 minutes talking to me about these issues,’” Somach says. “He asked good questions, and was more knowledgeable than I would have been in his job. It was heavy; it was neat.”

Somach enjoys both the field work, as well as the arcane aspects of water law.

“The predominant law in the West is the law of prior appropriation—first in time, first in right—and that’s under constant attack because most of the water has been distributed and benefits those that were first in time. [It’s] mostly agricultural uses, with no recognition of environmental concerns whatsoever,” he says. “The way I describe it is, ‘You have to distribute water in some way, shape or form. So, unless you have someone who is pontificating on a better use and reallocation of water, a seniority system works just fine. It allows everybody to understand what their relative rights are.’”

Simmons says he has a voracious intellect. “He’s always reading three books at once. Fifteen years ago, I mentioned a sci-fi trilogy. Three weeks later, he’d read it,” he says. Another time, Simmons and Somach took a trip with their wives. “We found ourselves in Tulsa for the night and came across the Woody Guthrie Center. It turned out Stuart has read every biography of Woody Guthrie. And he was like, ‘Hasn’t everybody?’”

Despite his reputation for problem-solving, Somach isn’t afraid of confrontation; he describes his courtroom style as “polite and deferential, but aggressive. … I’m not good at pulling my punches.”

Bransford recalls a contentious meeting with a representative from the U.S. Army Corps of Engineers. “When I looked up,” he says, “Stuart had the guy pinned in a corner—not yelling at him, but talking intently. How he got the guy in the corner, I can’t imagine.”

When Somach argued before the U.S. Supreme Court in 2005, he felt cornered himself. “Then I sat down and had an immediate calm,” he says. “I thought, ‘This is just another courtroom,’ and I was immediately comfortable.”

In the case, Orff v. United States, a group of California landowners argued that they should be able to control what happens with the water they buy. They purchased it from Somach’s client, Westlands Water District, which received it from the Bureau of Reclamation, and argued that it held that water for all the landowners in the district.

“When we got into the exchange, it was really intellectually stimulating,” Somach says. “They zoomed these questions at me, fast and furious.”

At one point, Justice John Paul Stevens asked Somach a yes-or-no question an instant before Justice Antonin Scalia asked one of his own. When Somach said “no” to Stevens, he saw Scalia become upset, thinking the response was to him.

“I told him, ‘The answer to Justice Stevens is ‘no,’ and the answer to you, Justice Scalia, is, of course, ‘yes,’” Somach says.

After celebrating with a drink at his hotel, the judgment later came in for Somach’s client, 9-0.

Somach sought a return to SCOTUS in 2013, when he filed briefs on behalf of the state of Texas. The dispute concerned the 1938 Rio Grande Compact, which determines how water from the Rio Grande Basin is apportioned among Colorado, New Mexico and Texas. The agreement stated that Texas was entitled to 43% of the water, but Texas was arguing the 43% should be measured against the 1938 levels rather than the 2013 levels. At the time, New Mexico’s groundwater pumping had depleted, according to Texas, more water than New Mexico was entitled to.

“When I first started, you looked at water law as extension of real property law,” says Somach. “Over the years, what it became is a highly regulated resource, and how it’s regulated is different in all the Western states.”

A decade later, the case is still going—having shifted to Zoom during COVID and then mediation with a special master. “We ended up coming up with a proposed consent decree among Colorado, Texas and New Mexico,” Somach says, “but the United States opposed it. So we filed a motion over their opposition.”

After hearing oral argument in February 2023, the special master will next issue their recommendation to the court. “We anticipate one way or another we’ll end up before the court maybe as early at the end of this term,” says Somach. “Or, more likely, 2024.”

Somach’s experiences in courts have sometimes been frustrating. “I’ve had cases in front of the 9th Circuit, such as an en banc hearing where 11 judges sat in tiers like they are in bleachers, and they gave responses that made me disappointed in their depth of knowledge,” he says.

Once, when Somach was on a panel, a professor pontificated on Western water issues. Somach cut them off, saying “You don’t have a clue what you’re talking about.” People who live in green, lush environments, according to Somach, can’t truly understand Western water issues.

For the most part, though, Somach is steady. He has accepted that water law operates at a glacial pace, like a stalagmite forming drop by drop. “I was quite taken with the environmental movement in the 1960s. I still view myself that way,” he says. “But, practicing environmental law, I lost the luxury of seeing everything in black and white. With water law, anything you work on takes forever, because everything is in the grays.”