October 7, 2008
October 7, 2008
Oregonians In Action Education Center,
Looking Forward Magazine, 6/08,
In the November/December 2003 edition of Looking Forward, we warned that the state’s newest method of restricting your property rights would be completed under the guise of “groundwater protection.” That warning five years ago demonstrates why the name of Oregonians In Action’s publication is called Looking Forward – five years later that warning is becoming a reality. The biggest issue in the water wars in Oregon is found between irrigators and irrigation districts and who owns the right to use the water. The issue is fundamental and critical to rural Oregon, and the resolution of the issue could have a tremendous effect on our friends in rural Oregon.
The dispute arises because most water rights certificates are issued in the name of the irrigation district, but the right to use the water is based upon the fact that the water is adjacent to the irrigator’s property. In other words, without the existence of the irrigator (usually a farmer or rancher), no water right would be created at all!
The question of who owns the water right in this irrigator-irrigation district relationship has never been answered in a western court. This fact is somewhat surprising given that the dispute is so fundamental to water law generally.
On May 13th, the Oregonians In Action Legal Center argued the case of Fort Vannoy Irrigation District v. Water Resources Commission, before the Oregon Supreme Court in Enterprise, Oregon. The Legal Center represents Fort Vannoy Farms, an irrigator who wants to consolidate seven points of diversion along the Rogue River into two points of diversion on the Rogue River and Vannoy Creek.
Fort Vannoy Farms petitioned the Water Resources Commission for permission to make the transfer. If allowed to transfer and combine the points of diversion, Fort Vannoy Farms would actually conserve water for users downstream. However, Fort Vannoy Farms did not seek “permission” from the Fort Vannoy Irrigation District before filing its consolidation request.
I hope you are sitting down as you read this, because what you are about to read next is somewhat unbelievable. The Water Resources Commission approved the property owner’s request to consolidate the points of diversion, even though the irrigation district’s never gave its consent to the transfer and consolidation.
Even though the facts in the case are clear that no senior (or junior) water rights would be harmed by the proposed transfer and consolidation, the irrigation district appealed the Water Resources Commission’s decision to the Court of Appeals. The result of the district filing its appeal put the Legal Center in the strange position of arguing on the same side as the state of Oregon.
The Court of Appeals reversed the decision of the Water Resources Commission, and to the Commission’s credit, the Commission and Fort Vannoy Farms appealed the Court of Appeals decision to the Oregon Supreme Court. The Commission has taken the very pro-property owner stance that water rights belong to the property owner and not the irrigation district.
The Oregon Supreme Court held oral argument on May 13th, 2008 in the gymnasium at Enterprise High School. It was a great experience and a fantastic argument for both sides. Water law is a very complex and thick area of the law, but the Supreme Court was well-prepared and asked the questions that demonstrated the justices understood exactly what the issues in the case are and the implications this case will have on property owners across Oregon.
The case has been submitted to the Supreme Court, and we expect a decision by the end of 2008.
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