PICCININI v. OAKDALE IRRIGATION DISTRICT No. F060990.
JONATHAN PICCININI et al., Plaintiffs, Cross-defendants and Appellants, v. OAKDALE IRRIGATION DISTRICT, Defendant, Cross-complainant and Respondent.
Court of Appeals of California, Fifth District.
Filed January 4, 2012.
O'Laughlin & Paris,
William C. Paris III and Katie J. Shea for Defendant, Cross-complainant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HILL, P. J.
Plaintiffs and cross-defendants (appellants) appeal from a judgment declaring the obligations of the defendant and cross-complainant, Oakdale Irrigation District (OID), to deliver water to them under a prior judgment obtained by the predecessors in interest of appellants. Appellants contend the judgment and the statement of decision on which it is based contain ambiguous findings that do not adequately resolve the issues presented. OID cross-appeals from the judgment, contending the judgment erroneously requires it to supply water to appellants year round, rather than only during irrigation season, and it improperly adjudicates a duty to supply water to nonparties to the litigation. We modify the judgment to eliminate the requirement that OID deliver water to the water distributor for the town of Knights Ferry and, as so modified, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, owners of real property in the vicinity of Knights Ferry, filed a declaratory relief action against OID, alleging they enjoy water rights pursuant to agreement and to the decision of the Stanislaus County Superior Court, which was affirmed on appeal in Brooks v. Oakdale Irrigation District (1928) 90 Cal.App. 225 (Brooks). Plaintiffs sought an interpretation of the decision in the Brooks case, and a judicial declaration that the decision entitled them to a continuous and perpetual flow of four cubic feet per second of water across their lands and required OID to refrain from interfering with the flow of water across their lands when performing maintenance of the ditches and canals that carried the water.
OID cross-complained against plaintiffs and other property owners, alleging it is a political subdivision of the state and provides water service for irrigation and other purposes in Stanislaus and San Joaquin counties. The cross-complaint alleged OID and the South San Joaquin Irrigation District (SSJID) share a pre-1914 appropriative right to divert certain water from the Stanislaus River between March 1 and October 31 of each year, a right which was confirmed by a 1929 decree of the San Joaquin County Superior Court. That right was based in part on the conveyance to OID and SSJID of the Schell Ditch and the water rights associated with it; the Schell ditch delivered water to certain landowners in the vicinity of Knights Ferry, whom OID referred to as the Knights Ferry water users and who were the predecessors in interest of appellants. The Knights Ferry water users were not located within, or customers of, OID or SSJID.
OID alleged that the Brooks decision required it to deliver a continuous and perpetual flow of four cubic feet per second of water to the point where the ditch that served the Knights Ferry water users intersected with OID's canal; the water was for use by the Knights Ferry water users for irrigation and agricultural, horticultural, mining, vineyard, and domestic purposes. The Brooks decision also enjoined OID from interfering with the perpetual and continuous flow of water. The cross-complaint alleged that, for years, OID, the Knights Ferry water users, and the successors of the Knights Ferry water users understood that OID's obligation to supply water applied only during the irrigation season, March 1 to October 31 of each year. In 2005 and subsequently, when OID closed some of its canals for repairs during the non-irrigation season and discontinued water deliveries, appellants asserted OID was required to provide them an alternative source of water. A dispute arose between the parties regarding whether OID was required to furnish appellants with water for irrigation and other purposes during the non-irrigation season. OID sought a declaration that its obligation under the Brooks decision was to deliver water only between March 1 and October 31 each year and the delivery was to be made to a single location, from which point appellants were to be responsible for distributing and conveying it among themselves.
At trial, the parties entered in evidence documents from the Brooks case, including the 1926 judgment and the trial court's findings; the parties also referred the court to the published appellate court decision in that case. The trial court in Brooks determined that, prior to 1887, Abraham Schell and others constructed a dam in the Stanislaus River and conveyed water from the river through a ditch and other facilities to supply water to those residing in the vicinity of Knights Ferry. In 1887, Schell and the other owners conveyed their interests in the ditch, known as the Schell ditch, and the water conveyed through it to L.U. Shippee and James Morrissey.
The court of appeal affirmed the Brooks judgment, but on different grounds than those relied upon by the trial court. In the Brooks appeal, the court identified the only issue to be decided as whether the plaintiffs, as the successors in interest of the owners of the lands to which water was diverted from the Stanislaus River by means of the Schell ditch and related facilities, had a prior or preferential right to use the waters of the Stanislaus River to the extent of four second-feet in continuous flow. (Brooks, supra, 90 Cal.App. at p. 230.) OID and SSJIC, as the appellants, argued that a public service corporation cannot grant preferential rights. The Brooks plaintiffs contended the deeds that conveyed the water rights to OID reserved to the plaintiffs a preferential right to "all the waters that their needs may require" for specified purposes. (Id. at pp. 229-230.) The court first determined "that the reservations in the deeds of conveyance are so uncertain and indefinite in their application that no judgment could be based thereon, and in consideration of this case the reservations in the deeds of conveyance are not considered as being material to a decision herein." (Id. at pp. 230-231.) Instead, the court decided the case on the basis of the obligations of a public service water company which appropriates water for public use. The court agreed with OID and SSJID that the waters of the Stanislaus River in issue had been devoted to public use for a long time; "the owners of the water right instituted in 1853 and thereafter continued by the building of the dam at Six Mile Bar and the ditch conveying the waters of said stream to the vicinity of Knights Ferry were diverting and devoting such water to a public use." (Id. at p. 232.)
The court began with "`[t]he fundamental and all-important proposition ... that a public service water company which is appropriating water under the Constitution of 1879 for purposes of rental, distribution and sale, cannot confer upon a consumer any preferential right to the use of any part of its water.'" (Brooks, supra, 90 Cal.App. at p. 234.) The water rights in issue were initiated prior to adoption of the state constitution in 1879; subsequent owners expanded the system, obtained greater water rights, and built an extensive irrigation system that did not include the lands owned by the Brooks plaintiffs and their grantors. (Id. at p. 237.) "In other words, the case presents not the duty of an irrigation system to its consumers, but the duty and liability of a transferee of the irrigation system or dam, ditch, and waters to continue the services as therefore furnished to the plaintiffs and their grantors." (Id. at pp. 237-238.) The applicable rule was that "`[t]he transferee of the system takes the franchise and property pertaining thereto subject to all the burdens, and is obliged to continue the performance of the public service to which the franchise and property had been dedicated.'" (Id. at p. 238.) Accordingly, OID's grantors, as grantees of the prior owners of the dam and Schell ditch, "became, by virtue of the law, immediately charged with the duty and liability of furnishing service of water to the grantors of the plaintiffs just as their rights existed at the date of the transfer in the year 1887. The reservations in the deeds added nothing to the rights of the users of water furnished by the ditch." (Ibid.) The burden of continuing that service was passed down to successive grantees, and finally to OID and SSJID. (Id. at p. 241.) The expansion of the water system to include other large appropriations of water, miles of canals, ditches, reservoirs, immense dams, and many other customers did not change this result. (Id. at p. 238.)
In 1917, prior to the commencement of the Brooks case, OID and SSJID petitioned the state water commission, pursuant to the Water Commission Act of 1913 (the Act; Stats. 1913, ch. 586, now codified in various sections of Divisions 1 and 2 of the Water Code), for a determination of the rights of the various parties claiming appropriative rights to use the waters of the Stanislaus River. OID claimed a right to the water historically diverted through the Schell ditch as early as 1853, and represented the water had been used for irrigation from February 15 to November 15 each year. OID also claimed the right to use the water "[f]or the purpose of supplying the town of Knights Ferry with domestic water." OID asserted various conveyances and recorded claims as the sources of its water rights.
The water commission entered its order determining the respective rights of the claimants in OID's case on September 21, 1922. (Wood, supra, 1 Cal.2d at p. 441) "Section 36a of the Water Commission Act provides for the filing of a certified copy of such order, together with the original evidence and transcript of testimony, duly certified, with the clerk of the superior court of the county in which said stream system or any part of it is situated.... [¶] Section 36b provides for the filing of notices of exceptions to the order by parties in interest who are aggrieved or dissatisfied with it, which notices shall be served in the manner provided on the state water commission and on adverse claimants. ... `On the day set for hearing all parties in interest who have filed notices of exceptions as aforesaid shall appear in person, or by counsel, and it shall be the duty of the court to hear the same or set the time for hearing, until such exceptions are disposed of, and all proceedings thereunder shall be as nearly as may be in accordance with the rules governing civil actions...' [¶] By section 36c the court may employ experts to investigate and report and may take additional evidence or refer the case back to the commission for that purpose. After the hearing the court is directed to enter a decree determining the right of all persons involved in the proceeding, including the extent, priority, amount, purpose of use, point of diversion, and place of use, and the tracts of land to which the use is appurtenant and other necessary conditions, and may assess the costs." (Wood, supra, 1 Cal.2d. at pp. 440-441.)
The water commissioner's order and supporting documentation were filed with the San Joaquin County Superior Court pursuant to these provisions of the Act. Some of the claimants filed exceptions to the order. After extensive hearings, on November 14, 1929, the superior court confirmed the order of the Water Commission, with some modifications. The superior court's decision confirmed the Water Commission's determination that OID was entitled to divert 5.00 cubic feet per second between March 1 and October 31 of each year, with a priority date of 1853, and other amounts with other priority dates. The court also stated: "Other than claimants ... Oakdale Irrigation District, South San Joaquin Irrigation District ..., all of the claimants herein adjudged and decreed the right or rights to the use of water for irrigation purposes during a portion of each year, are and shall be entitled to divert from the same source, through the same ditch or ditches, throughout the remainder of each year, water as may be required for domestic and stock-watering purposes ..., in no event to exceed, the maximum quantity awarded for irrigation purposes."
During the trial of this case, the parties and the court prepared a list of questions for the parties to address in their presentations and the court to address in its decision. The parties discussed those questions in their posttrial briefs; the court addressed them in its tentative statement of decision. Appellants filed objections to the answers to questions 3, 4 and 10. The court held hearings on the objections, and permitted the parties time to attempt to resolve their differences informally. Appellants continued to object to the court's proposed decision; the court adopted its tentative statement of decision as its final decision, with one minor alteration. The trial court determined that OID is required to deliver water to appellants in the amount of four cubic feet per second by the continuous flow method to the existing service areas, for irrigation purposes during the irrigation season. OID was also to deliver an undetermined amount of water for domestic purposes year round to the town of Knights Ferry's private water distributor. The trial court also declared that OID's obligation to supply water to the plaintiffs whose property is in the town of Knights Ferry is no different from its obligation to the plaintiffs whose property is not; OID is required to maintain and repair the ditches and canals that serve appellants; it must provide a substitute water supply when it shuts down part of the system for maintenance, to the extent it is reasonable to do so; and the doctrine of estoppel does not apply in determining the parties' rights and obligations. A judgment that incorporated the statement of decision was entered on July 6, 2010. Appellants appeal; OID cross-appeals.
Appellants contend that the judgment is "vague, ambiguous, contradictory and open to different interpretations as to its meaning and its effects upon the parties both presently and in the future." They ask that this court reverse the judgment and remand to the trial court for a new trial.
"Ordinarily, when the court's statement of decision is ambiguous or omits material factual findings, a reviewing court is required to infer any factual findings necessary to support the judgment. [Citations.] This rule `is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.' [Citation.] [¶] "In order to avoid the application of this doctrine of implied findings, an appellant must take two steps. First, the appellant must request a statement of decision pursuant to [Code of Civil Procedure] section 632; second, if the trial court issues a statement of decision, `a party claiming omissions or ambiguities in the factual findings must bring the omissions or ambiguities to the trial court's attention' pursuant to section 634. [Citation.]" (Ermoian v. Desert Hospital (2007)
"[O]bjections to a statement of decision must be `specific.' [Citation.] The alleged omission or ambiguity must be identified with sufficient particularity to allow the trial court to correct the defect. [Citation.] `By filing specific objections to the court's statement of decision a party pinpoints alleged deficiencies in the statement and allows the court to focus on the facts or issues the party contends were not resolved or whose resolution is ambiguous.' [Citation.]" (Ermoian, supra, 152 Cal.App.4th at p. 498.)
Appellants filed objections to the statement of decision in the trial court. They objected only to the answers to questions 3, 4, and 10. In this appeal, however, they also attempt to challenge the answers to questions 1 and 2. Because they did not raise an objection to those answers in the trial court and afford the trial court an opportunity to clarify any ambiguity, their challenge to those answers is deemed waived. Thus, there is effectively no challenge to the trial court's findings on questions 1 and 2 that OID is required to deliver four cubic feet per second of water to appellants by the continuous flow method.
Appellants challenge the answers to questions 3, 4, and 10 in part on the ground that they are inconsistent with comments made by the court at the hearing of their objections. Those oral comments, however, were not part of the trial court's decision, and the findings included in the statement of decision that the trial court eventually adopted superseded any oral statements made at the hearing. "`Fortunately for the stability of judgments the findings of the court are those expressed in writing. What the judge said may be useful to explain the findings but it cannot overcome them, and if contradictory, must be disregarded.' [Citation.] ... The law is settled that an appellate court reviews the action taken by the trial judge, not his judicial reasoning or comment. [Citation.]" (Arenstein v. California State Board of Pharmacy (1968)
II. Obligation to Deliver Water Year Round
A. Delivery to the town of Knights Ferry
Questions 3, 4, and 10 and their answers as they appeared in the court's statement of decision (without the extended explanations) are as follows:
Appellants contend these answers, in conjunction with the answers to questions 1 and 2, are inconsistent. They require OID to deliver four cubic feet of water per second to appellants during irrigation season, but also require OID to deliver an unspecified amount of water to the town's water system during the entire year. Appellants contend it is not clear to whom "the town of Knights Ferry's private water distributor" refers, especially in light of oral comments made by the trial court, which indicated the trial court was referring to everybody in the case, which would include appellants.
Appellants also contend these findings result in inconsistencies because the property of some of appellants is located in the town of Knights Ferry, but the property of others is not. If those located in the town benefit from year round delivery of domestic water and those outside the town do not, then the answer to question number 4 appears incorrect. In that case, the findings are inconsistent regarding whether only the appellants in town are entitled to domestic water during the non-irrigation season, or whether the appellants outside town are also so entitled. This issue essentially mirrors the issue presented by OID in its cross-appeal: whether OID is obligated to deliver water to appellants on a year round basis.
At the hearing of appellants' objections to the trial court's tentative statement of decision, counsel for appellants complained that the tentative statement of decision included a finding that his clients were not entitled to water for domestic purposes during the nonirrigation season. The trial court denied making any such finding. Counsel for OID explained that OID provides raw water to the town's water distributor and intends to continue to do so; the water distributor treats the water and delivers it to its customers within the town of Knights Ferry. But not all of appellants are on the town's water system, and it was OID's contention that it was not obligated to provide raw water during the nonirrigation season for any purpose to those not connected to the town's water system. The court orally stated: "When I said `town,' I was referring to everybody here for domestic purposes.... [¶] So you have an obligation to provide water for domestic purposes to anybody in this case. If the term `town' ... causes concern, I'll strike the word `town.'" Counsel for OID expressed surprise at the court's position, noting that the San Joaquin County Superior Court's adjudication of rights to the water in the Stanislaus River determined that OID had a right to divert water only during the irrigation season, and had no right to divert water outside that season, even for domestic purposes. After further discussion, the trial court set another hearing date to allow the parties to attempt an informal resolution of the issue of year round domestic water or to agree on how the court should proceed to resolve it. After another hearing and submission of further comments by the parties, the court adopted its tentative statement of decision as its final decision, with the exception of certain language regarding riparian rights that is not material to this appeal, and entered a judgment that incorporated the statement of decision.
Although the court orally expressed its intention to strike the term "town" and make it clear that OID was obligated to deliver water to all appellants year round for domestic purposes, it did not do so in its final statement of decision. "`An oral ... opinion by a trial judge, discussing and purporting to decide the issues, ... is merely an informal statement of his views.... [I]t is not itself the decision of the court or a judgment. [Citations.]' [Citation.]" (Collins v. Hertz Corp. (2006)
The final statement of decision and the judgment provide: "OID is to provide water for domestic purposes to the town of Knights Ferry's private water distributor on a year round basis." As OID points out, neither the town of Knights Ferry nor its private water distributor was a party to this litigation. Neither the complaint nor the cross-complaint sought adjudication of the rights of the town or its water distributor; neither sought a declaration of OID's obligations to deliver water to the town or its water distributor. The complaint sought an interpretation of the Brooks decision and a declaration that it required OID to deliver a specified amount of water "across the lands of Plaintiffs." The cross-complaint named specific individuals as cross-defendants, and alleged an actual controversy about the parties' rights and obligations under the Brooks decision.
"`It is the general rule that a judgment may not be entered either for or against a person who is not a party to the proceeding, and any judgment which does so is void to that extent.' [Citations.]" (Fazzi v. Peters (1968)
Appellants concede in their reply brief that the town of Knights Ferry is not a party to this action. Nonetheless, they seem to argue that eliminating from the judgment the provision requiring OID to provide domestic water to the private water distributor for the town of Knights Ferry will result in an end to delivery of water to the town for domestic purposes and the commencement of multiple lawsuits. Eliminating that provision from the judgment, however, would neither authorize nor require OID to cease water delivery to the water distributor for the town of Knights Ferry. By eliminating the provision, this court would merely leave the rights and obligations between OID and the town of Knights Ferry or its water distributor unadjudicated. It would maintain the status quo and leave OID and the town in the same position with respect to one another as if this litigation did not exist. Because it reached beyond both the parties and the issues in this action, the provision that "OID is to provide water for domestic purposes to the town of Knights Ferry's private water distributor on a year round basis" must be stricken from the judgment.
B. Delivery to appellants
The trial court's short answer to question No. 3 in the statement of decision implies OID may be required to deliver water to appellants year round for purposes other than irrigation. The explanation of the answer to question No. 3 in both the statement of decision and the judgment, however, does not support such an implication. The discussion of that answer states that the Brooks decision did not address the issue of year round water; the San Joaquin County Superior Court determined the rights of OID to divert water from the Stanislaus River, and limited those rights to the irrigation season, March 1 to November 1 of each year. Appellants' water rights were derived from the same grantors as OID's. The judgment explains:
Thus, the detailed explanation of the answer to question No. 3 indicates the trial court concluded plaintiffs did not meet their burden of proving they were entitled to delivery of water on a year round basis, either pursuant to the rights adjudicated in the Brooks decision or by estoppel. "[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) `uncontradicted and unimpeached' and (2) `of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (In re I.W. (2009)
As the trial court recognized, the Brooks appeal determined that the rights of the predecessors of appellants were established by the historic use of the water rather than by the reservation of rights in the deeds by which they conveyed their rights in the water system and its water to OID's predecessors. (Brooks, supra, 90 Cal.App. at p. 238.) The Brooks court did not address whether the plaintiffs there were entitled to water delivery year round or only during the irrigation season.
The San Joaquin County Superior Court addressed that issue, when it determined the rights of the various claimants to the waters of the Stanislaus River. OID claimed water rights based in part on conveyance to it in 1910 of its predecessors' rights in the Schell ditch, including the same predecessors from whom appellants acquired their water rights. Based on the historical evidence presented, the San Joaquin County Superior Court determined the quantity of water OID was entitled to use; it limited OID's entitlement to the water to the period between March 1 and October 31 of each year. Evidence of that judgment was presented at trial. The judgment became final long ago and no party challenged its validity in this case. The evidence presented demonstrated that OID had a right to divert water from the Stanislaus River for the use of appellants only between March 1 and October 31 of each year. Appellants did not establish any other source of their claimed year round water rights. The evidence did not compel a finding in favor of appellants as a matter of law. There was no error in the judgment limiting appellants' rights to delivery of water during the irrigation season.
Appellants seem to argue OID must supply them with domestic water year round because it has provided either them or the town of Knights Ferry with domestic water year round for 70 or 80 years. This is effectively a claim of estoppel. OID contends an obligation to deliver water to appellants outside the irrigation season cannot be established by estoppel.
The doctrine of equitable estoppel provides: "`Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.'" (City of Long Beach v. Mansell (1970)
The trial court rejected the application of estoppel. In response to question No. 3, the judgment stated: "The parties are in conflict as to whether or not OID has provided water during the non-irrigation times and the records of OID providing water appear to support OID's position water has not been provided after the end of the irrigation season. The testimony presented in the 1926 trial, and in the present trial, support[s] that finding. The court finds the plaintiffs have not met their burden of proof and that estoppel would not apply." In response to question No. 9, the judgment reiterates that estoppel does not apply. It states: "The court has found OID's obligation to deliver water is limited to the amount and time-frame provided by state law of five cubic feet during the irrigation season. The evidence does not show the plaintiffs have reasonably relied upon receiving water in the past on a year-round basis .... Estoppel is not appropriate and plaintiffs have failed to carry their burden of proof."
Thus, the trial court essentially found that there was no conduct of OID by which it led appellants to believe that OID was obligated to deliver water to them for domestic purposes on a year round basis, and there was insufficient evidence of reliance on any such conduct. Because the trial court found plaintiffs did not meet their burden of proving estoppel as the basis for an entitlement to domestic water year round, in order to establish error in the judgment, plaintiffs must demonstrate that the evidence compels a finding in their favor on that issue as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528.)
The judgment of the San Joaquin County Superior Court was included in the evidence at trial. It indicated that those claiming appropriative rights in the waters of the Stanislaus River were required to file proof of the source of their rights with the Water Commission; based on the Water Commission's investigation and the court's own hearings of the claimants' claims, the court adjudicated the rights of the claimants. It determined OID acquired and maintained rights to divert water from the Stanislaus River via the Schell ditch only during the irrigation season. Thus, neither the determination of the Water Commission nor the decision of the San Joaquin County Superior Court confirming that determination supports a finding of estoppel.
The Brooks decision did not determine whether OID diverted water and delivered it to the Knights Ferry water users or their successors in interest on a year round basis. That issue was not raised by the parties in that case. Appellants contend: "The testimony from the Brooks Trial Transcript ... established that from 1889 through the time of the Brooks' trial, the OID furnished water to the Appellants' predecessors in interest for non-irrigation purposes during the non-irrigation season ...." On the contrary, the testimony appellants cited for this proposition focused on the amount of water that had been delivered and whether the ditch was kept full to capacity; it was ambiguous regarding whether the witnesses were discussing the situation year round or only during the irrigation season.
Additionally, there was testimony in the trial court in this action from Steven Knell, the general manager of OID, that OID provided water to plaintiffs and cross-defendants outside the irrigation season only intermittently. He stated OID shuts off the water supplying appellants in the winter months, but there may be water in the ditch as a result of rain collecting in the ditch where it is at the bottom of a hill; there are times, however, when there is no water in the ditch. Thus, the evidence relating to the issue of estoppel is conflicting. It is neither uncontradicted nor of a character and weight to preclude a finding that the evidence is insufficient to establish estoppel. Thus, it does not compel a finding in favor of appellants on the issue of estoppel.
With the elimination of the improper provision for delivery of domestic water to the private water distributor for the town of Knights Ferry, the answer to question No. 3 in the judgment is consistent with the remainder of the judgment. As the answer to question No. 4 indicates, OID's duty to all of the appellants is the same, whether they reside in the town of Knights Ferry or not. Because the judgment does not require delivery of domestic water to the water distributor for the town of Knights Ferry, and OID is obligated to deliver water to appellants only during the irrigation season, the answer to question No. 10 requires OID to provide a substitute supply of water to appellants only when it shuts down part of the system for maintenance during the irrigation season. The discussion of a substitute supply of water for domestic purposes in the response to that question is superfluous and should be stricken.
The judgment is modified by striking from the answer to question No. 3 the language: "OID is to provide water for domestic purposes to the town of Knights Ferry's private water distributor on a year round basis." It is also modified by striking from the answer to question No. 10 the discussion of a substitute supply of water for domestic purposes. As so modified, the judgment is affirmed. OID is entitled to its costs on appeal.
LEVY, J. and FRANSON, J., concurs.
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