| Oregon State Bar Bulletin — JANUARY 2009 |
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Clarifying Fort Vannoy Irrigation
District Decision
I am concerned that the interesting article "Navigating Water Law
in Oregon" (November 2008) contains a critically incomplete discussion
of the Oregon Supreme Court’s decision in Fort Vannoy Irrigation District
v. Water Resources Commission and Ken-Wal Farms, a case that I argued on
behalf of the district.
The article overlooks that the main issue in the case was determining the "holder of any water use subject to transfer" under ORS 540.9 who would be authorized to change the diversion points associated with water rights established in certificates that had been issued to the district. The court held the "holder" was the district. Consequently, Ken-Wal Farms, a landowner within and a patron of the district, could not change the diversion point for a portion of the water without the district’s consent.
The court’s opinion extensively discussed the historical
background of irrigation and water law in the American West and Oregon in
particular, as well as other current and former Oregon statutes. It concluded
that the district was the "holder" of the certificated water rights
because the ownership interest in those rights vested in the district as
trustee for all of its patrons upon issuance of the certificates. Ken-Wal’s
ownership of a portion of the appurtenant land did not equate to ownership
of the certificated
water rights.
In defending its water rights, the district was performing its duties as trustee to protect the beneficial interests of all of its patrons and to fulfill the statutes discussed in the court’s opinion.
Emil R. Berg
Boise, Idaho
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