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House bill aims to preserve water rights for landowners
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| Doug Whitsett, who lives in Poe Valley east of Klamath Falls, is president of Water for Life, whose stated purpose is "to assist Oregon's agriculture community grow agriculture products in an economical manner, using good stewardship of our natural resources." |
published July 28, 2003
By Doug Whitsett
Regarding the commentary July 21 by William Ganong: "Water rights bill in Legislature would hurt local irrigators:" We take issue with several of the statements and allegations.
Water for Life Inc. believes that he implies in his third paragraph that, because the district is a partner in the development effort, and because it is a trustee for the farmers' water rights, that somehow partial ownership of the farmers' water rights is established for the district. Although assets are held in a trust relationship and are managed by the trustee for the benefit of the beneficiary landowners, no ownership is conveyed to either the trust of the trustee in this trust relationship. This concept is concisely stated by the U.S. Supreme Court in Nevada v. United States. As with any proper trust, the relationship between the trustee and the beneficiary is well defined and critical, but does not include a transfer of ownership to the trustee.
We believe his statement in the fifth paragraph, "Districts cannot arbitrarily take over water rights by declaring themselves 'co-owners' and thereby violate the legal trust relationship spelled out in Oregon law" to be exactly correct. This issue is the cause, and the necessity, for House Bill 3298.
As he should know, in 1999 the Oregon Water Resources Congress requested the Oregon Water Department to establish by administrative rule this co-ownership on behalf of the districts. Being denied this ruling by department, the Water Resources Congress initiated unsuccessful legislation in 2001 to establish co-ownership of water rights held in trust by the districts. We believe that failure to include these pertinent facts in his commentary makes it incomplete at best.
In his sixth paragraph he convolutes what we believe to be the facts.
Under current Oregon attorney general's opinions, Oregon court decisions, and decisions from federal courts including the U.S. Supreme Court, the owner of the land to which an irrigation water right is appurtenant is the owner of that water right.
It belongs to landowner
The relevant case law clearly states that the owner of the land owns the water right regardless of what entity the water right has issued to, or of what entity holds the water right in trust. In fact, in written testimony to the House Committee on Water May 8, Ganong stated, "No one in this state questions the statutory and common law that the beneficial right to use irrigation water is appurtenant to the land which beneficially applies the water without waste."
His testimony would appear to be in support of the Sept. 6 Oregon attorney general opinion to the Oregon Water Resources Department which quotes Rights to Waters of Silvies River: "This conclusion is in accord with case law recognizing that landowners within irrigation districts are the 'owners' of the water right in regard to beneficial use and the real appropriator for beneficial purposes."
Given these facts, we believe that HB 3298 does not change the current ownership of any water right. Rather, it simply codifies in Oregon statute what the courts have already decided. Therefore, HB 3298 cannot cause any change in the current legal management of a water district.
In his eighth paragraph Ganong rightfully extols the virtue of the many hard-working elected water district directors. However, their work ethic and plurality success does not convey water right ownership to the districts that they serve any more than a hard-working elected county assessor should have a property ownership interest conveyed to the county where he was elected and works.
In his 13th paragraph he states, "As trustees on behalf of its farmers, the Klamath Irrigation District can prosecute the takings case and KID can represent the farmers in the adjudication." HB 3298 is not intended to, and we believe does not, alter that trustee relationship.
Ganong cites no law or court action supporting this allegation. However, noted water law attorney David Fillipe wrote in a paper published in 2002: "The argument in favor of individual ownership also becomes critical in situations where the water right is in the name of Reclamation, where water under that right has been required to be left in-stream for listed fish purposes pursuant to an enforcement action or section 7 consultation, and where the water users are claiming that the deprivation of the water amounted to a compensable taking of property under the Fifth Amendment. To the extent that Reclamation 'owns' the water, the water users' taking claims become much more difficult to prove."
Water For Life Inc. would certainly entertain any pertinent legal citations of Oregon or federal law, court action, or attorney general's opinions that are contradictory to our position on this important issue.
It has lots of support
Finally, in his 16th paragraph Ganong suggests that Water for Life has initiated this legislation in order to "divide and conquer" the water users and that Water for Life represents primarily independent water right holders.
Perhaps Ganong is unaware that HB 3298 is supported by a veritable "who's who" of Oregon property rights advocates such as Oregon Cattlemen's Association, Oregon Farm Bureau, Oregon Grange, Oregonians in Action, Oregon Realtors Association, Oregon Cranberry Alliance, Ocean Spray, Aspen Lakes Utility Company, Cut Creek Irrigation District, etc. It is also supported by many water district members throughout the state including district members within the Klamath Basin.
Those in opposition are primarily Oregon Water Resources Congress, water districts, special district managers, and Waterwatch, perhaps the most stridently anti-irrigation of all the environmental extremist groups that endeavor to destroy our agricultural industry.
The allegation that Water for Life membership consists primarily of independent water right holders is false. Water for Life has about as many contributors who are members of water districts as contributors who are not members of water districts.
The legislation was initiated to prevent Oregon Water Resources Congress and its member districts from continuing their efforts to establish co-ownership of water rights held in trust by the districts. We believe that these efforts to transfer ownership of private property by administrative or legislative fiat without compensation are both legally and morally reprehensible.
We look forward to Ganong's response to these important issues.
By Doug Whitsett
Regarding the commentary July 21 by William Ganong: "Water rights bill in Legislature would hurt local irrigators:" We take issue with several of the statements and allegations.
Water for Life Inc. believes that he implies in his third paragraph that, because the district is a partner in the development effort, and because it is a trustee for the farmers' water rights, that somehow partial ownership of the farmers' water rights is established for the district. Although assets are held in a trust relationship and are managed by the trustee for the benefit of the beneficiary landowners, no ownership is conveyed to either the trust of the trustee in this trust relationship. This concept is concisely stated by the U.S. Supreme Court in Nevada v. United States. As with any proper trust, the relationship between the trustee and the beneficiary is well defined and critical, but does not include a transfer of ownership to the trustee.
We believe his statement in the fifth paragraph, "Districts cannot arbitrarily take over water rights by declaring themselves 'co-owners' and thereby violate the legal trust relationship spelled out in Oregon law" to be exactly correct. This issue is the cause, and the necessity, for House Bill 3298.
As he should know, in 1999 the Oregon Water Resources Congress requested the Oregon Water Department to establish by administrative rule this co-ownership on behalf of the districts. Being denied this ruling by department, the Water Resources Congress initiated unsuccessful legislation in 2001 to establish co-ownership of water rights held in trust by the districts. We believe that failure to include these pertinent facts in his commentary makes it incomplete at best.
In his sixth paragraph he convolutes what we believe to be the facts.
Under current Oregon attorney general's opinions, Oregon court decisions, and decisions from federal courts including the U.S. Supreme Court, the owner of the land to which an irrigation water right is appurtenant is the owner of that water right.
It belongs to landowner
The relevant case law clearly states that the owner of the land owns the water right regardless of what entity the water right has issued to, or of what entity holds the water right in trust. In fact, in written testimony to the House Committee on Water May 8, Ganong stated, "No one in this state questions the statutory and common law that the beneficial right to use irrigation water is appurtenant to the land which beneficially applies the water without waste."
His testimony would appear to be in support of the Sept. 6 Oregon attorney general opinion to the Oregon Water Resources Department which quotes Rights to Waters of Silvies River: "This conclusion is in accord with case law recognizing that landowners within irrigation districts are the 'owners' of the water right in regard to beneficial use and the real appropriator for beneficial purposes."
Given these facts, we believe that HB 3298 does not change the current ownership of any water right. Rather, it simply codifies in Oregon statute what the courts have already decided. Therefore, HB 3298 cannot cause any change in the current legal management of a water district.
In his eighth paragraph Ganong rightfully extols the virtue of the many hard-working elected water district directors. However, their work ethic and plurality success does not convey water right ownership to the districts that they serve any more than a hard-working elected county assessor should have a property ownership interest conveyed to the county where he was elected and works.
In his 13th paragraph he states, "As trustees on behalf of its farmers, the Klamath Irrigation District can prosecute the takings case and KID can represent the farmers in the adjudication." HB 3298 is not intended to, and we believe does not, alter that trustee relationship.
Ganong cites no law or court action supporting this allegation. However, noted water law attorney David Fillipe wrote in a paper published in 2002: "The argument in favor of individual ownership also becomes critical in situations where the water right is in the name of Reclamation, where water under that right has been required to be left in-stream for listed fish purposes pursuant to an enforcement action or section 7 consultation, and where the water users are claiming that the deprivation of the water amounted to a compensable taking of property under the Fifth Amendment. To the extent that Reclamation 'owns' the water, the water users' taking claims become much more difficult to prove."
Water For Life Inc. would certainly entertain any pertinent legal citations of Oregon or federal law, court action, or attorney general's opinions that are contradictory to our position on this important issue.
It has lots of support
Finally, in his 16th paragraph Ganong suggests that Water for Life has initiated this legislation in order to "divide and conquer" the water users and that Water for Life represents primarily independent water right holders.
Perhaps Ganong is unaware that HB 3298 is supported by a veritable "who's who" of Oregon property rights advocates such as Oregon Cattlemen's Association, Oregon Farm Bureau, Oregon Grange, Oregonians in Action, Oregon Realtors Association, Oregon Cranberry Alliance, Ocean Spray, Aspen Lakes Utility Company, Cut Creek Irrigation District, etc. It is also supported by many water district members throughout the state including district members within the Klamath Basin.
Those in opposition are primarily Oregon Water Resources Congress, water districts, special district managers, and Waterwatch, perhaps the most stridently anti-irrigation of all the environmental extremist groups that endeavor to destroy our agricultural industry.
The allegation that Water for Life membership consists primarily of independent water right holders is false. Water for Life has about as many contributors who are members of water districts as contributors who are not members of water districts.
The legislation was initiated to prevent Oregon Water Resources Congress and its member districts from continuing their efforts to establish co-ownership of water rights held in trust by the districts. We believe that these efforts to transfer ownership of private property by administrative or legislative fiat without compensation are both legally and morally reprehensible.
We look forward to Ganong's response to these important issues.
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