Oregon State Bar Bulletin — JANUARY 2009

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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