Rights-of Way on Public Lands and Administrative Avoidance

Century old rights-of-way uses of public lands can only be confirmed through a long, expensive federal court process. Because the Bureau of Land Management (BLM) and U.S. Forest Service (USFS) cannot determine the validity of water delivery and road rights-of-way on public lands, farmers, ranchers, and local governments may face an uphill battle to legally confirm and adjudicate these long-standing uses.

Revised Statutes (RS) 2477 and 2339 were components of the Mining Law of 1866, also called H.R. 365. This Act recognized the activities of settlers and miners occupying the West and encourage development of federal lands.

RS 2477 recognized roads and highways on public lands not already withdrawn from entry. RS 2339 protects the use of water infrastructure used for mining, agriculture, manufacture, and other purposes in place prior to the lands being withdrawn as well. These road and ditch laws honored development protocols and uses based on the local custom and laws at the time of early settlement.

While these laws are no longer in effect with the passage of the Federal Land Policy and Management Act (FLPMA), these self-granting rights-of-ways created while the law was in effect have not disappeared.  FLPMA recognizes existing rights on public lands prior to its passage. See: http://www.blm.gov/ca/dir/pdfs/2003/ib/CAIB2003-023ATT2.pdf

Without a way for agencies to definitively determine RS 2477 and RS 2339 rights-of-way claims, federal courts are currently the only venue to address these issues.  For more information, see: http://nvbar.org/articles/content/rs-2477-public-rights-way-era-administrative-avoidance

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.

With the political race underway, one group has taken a hard look at land management objectives on federal lands. In response, this group prepared a list of the top ten ways to improve federal land management in an open letter to the United States Presidential Candidates. In summary, top ten items include:

1. Retain federal ownership of most federal lands, but with significant changes.
2. Enhance the National Park System by converting some of the existing National Monuments to Park status with approval of the applicable State.
3. Adopt and implement State sage grouse management plans, and withdraw BLM and USFS land use and forest planning as related to sage grouse.
4. Manage wild horses and burros to achieve “appropriate management levels” (AML) within 4 years with priority timing on sage grouse breeding, late-brood rearing, and winter habitat areas.
5. Repeal (or amend) the Antiquities Act of 1906, to negate the ability of the President to unilaterally establish National Monuments without the approval of Congress.
6. Release Wilderness Study Areas (WSAs) within 4 years unless Congress approves to establish the same (in whole or in part) to Wilderness status.
7. Retain, but amend, the Equal Access to Justice Act, and similar fee-shifting statutes.
8. Amend the Endangered Species Act to more precisely defining the terms “species,” “endangered species,” and “threatened species.”
9. Amend the Administrative Procedure Act to provide litigants a meaningful opportunity for participation and for judicial review.
10. Consolidate administration of the public lands and national forest system lands into one federal land management agency.

Click here for a full copy of this open letter. Open Letter to Presidential Candidates — Top Ten Ways to Improve Federal Land Management in the West 

• The positions expressed in the letter are those of the individual signatory and do not intend to express the positions of the firm/business or its clients/customers to which the signatory is associated/employed.

Forfeiture

We’ve all heard “Use it or Lose it” referring to the Prior Appropriation System.  The use it or lose it concept is the term we use for legal forfeiture which will apply to your water rights of use depending on your jurisdiction and type of water right.  Generally, this concept requires beneficial use of water appropriated under state law over a specific time interval.  In some states (like Nevada and Oregon), “use it or lose” is statutorily controlled, the law describes when a water user must exercise their water right of use.  In Oregon both groundwater and surface water certificates require water use once for every five consecutive year time frame. ORS 540.610. In Nevada, the statute provides that only groundwater certificated uses are subject to forfeiture for non-use if not used at least once every five years.  NRS 534.090. Thus, if you last used your certificated water right of use in 2011, you best put whatever water is available for appropriation under your certificate in place for 2016!  Make sure to use it so you are not at risk of losing it!

Abandonment

Use it or lose it as defined by the water code should not be confused with abandonment, a court made doctrine that may be more broadly applied.  Abandonment will cause cancellation of a water use by intention not to use.  Intention can be established by expression as in a written document or by a physical act.  The physical act of abandonment can include placing a permanent structure over or on top of water righted lands.  If you plan to build the next industrial sized plant, packing shed, scale house, onion storage, fill in your ditch, or take out your diversion structures, etc., you should file that water use transfer or change application prior to any construction!

While this gives you the very “basic” overview of these two legal concepts, Schroeder Law Offices can provide a more detailed explanation

The Nevada Cattlemen’s Association posted a news release on May 16, 2016 regarding the Permittee Outreach Workshop. This workshop is geared towards Nevada Cattlemen and Cattlewomen who graze cattle on BLM permits.

With the listing of the Sage Grouse as “Not warranted” now more than ever it is imperative to establish with state and Federal Agencies that proper grazing has and can have a positive influence on the Sage Grouse Habitat. The Nevada Cattlemen’s Association in conjunction with Nevada Bureau of Land Management and the Nevada Department of Agriculture will be putting on a series of workshops around the state to have information sharing and discussion about how the Greater Sage Grouse Land Use Plan Amendment, and implementation of Table 2.2 will apply to permittees.

The series of workshops will take place as follows:

Nevada is taking a close look at water rights of use, thus now is the time to make sure your use rights are in good standing. With a shuffling of basin engineers within the Nevada Division of Water Resources, water rights are being reviewed to determine compliance!

• Are your rights of use in your name? If not, it is time to bring the ownership current as required under Nevada Law!
• If you have a permitted right, are you diligently developing your use to bring it towards certification?
• If you are not using your groundwater, are you at risk for forfeiture?
• Do you have a metering requirement? if yes, is your meter installed and are you recording monthly measurement readings?

All of these items and more are under scrutiny by the State Engineer’s office. In the last few months we have seen a number of forfeiture letters go out to unsuspecting water users, don’t let this be you! Do not wait to review your water use rights to ensure they are in compliance!

This week, the Duncan Family contributed to feeding the world by gathering their annual calf crop and sending them to others who would raise them for market.  Raising stock, “ranching,” is an age old way of life a culture that is passed down through generations.  The four generations in the Duncan Family presented in these photographs, illustrate that living off the land and turning forage from lands unsuitable for vegetable crops and grown into beef still persists.  Since approximately 1968, rancher and cattle buyer, Dave Stix has purchased the Duncan calf crop.  Through generations, Schroeder Law Offices purposefully supports these ranching families in developing and maintaining their water and forage use needs to support their heritage and way of life.

Photo Credit: Joan Duncan

Pictured: Maxine Duncan, Dan Duncan, AJ Duncan, Kelli Duncan Edmonds (and children), Rusty Kiel, John Aufdermaur, Dave Stix

The USDA Farm Service Agency January 2015 Nevada Newsletter is published. Please review this information for important program deadlines affecting farmers and ranchers, as well as general information related to the Farm Bill and other USDA programs. To view newsletter, click here: http://content.govdelivery.com/accounts/USFSA/bulletins/e98f05

The feds are in the process of using the sage grouse to eliminate economic and recreational use of the sagebrush grassland in the same fashion they used the spotted owl to substantially shut down the timber harvest business in the northwest.

However, their plans to impose sage hen regulation are more far reaching than what the spotted owl accomplished.

For an in-depth analysis and review of this issue please see the following link.

By: Sarah Liljefelt

The Clean Water Act (“CWA”) prohibits the discharge of pollutants from a point source into the navigable waters of the United States without an NPDES permit. The Act defines a “point source” as “any discernible, confined and discrete conveyance.” 33 U.S.C. §1362(14). Natural runoff is not a point source, and does not require a permit.

Agricultural runoff is exempt by the Act from the permit requirement, even if the runoff is collected into ditches or channels before being returned to a navigable water source. The EPA has consistently held that storm-water runoff from logging roads should be treated similarly to agricultural runoff. Since 1976 the EPA has distinguished between discharges from silviculture (forestry and logging) activities that are a direct result of controlled water use by a person (point source) and those that are the result of natural runoff (non-point source). Thus, it has been the practice that natural runoff from silviculture activities did not require a permit, even if the runoff was collected into discernible channels before discharge.

On August 17, 2010, the Ninth Circuit handed down a decision that invalidated the EPA’s policy of exempting from the CWA’s permitting requirement natural runoff from silviculture activities, if it is collected or controlled before discharge. Northwest Environmental Defense Center v. Brown, 2010 WL 3222105 (2010), also available at: http://www.ca9.uscourts.gov/datastore/opinions/2010/08/17/07-35266.pdf. The court held that the prior silviculure policy was inconsistent with the text of the CWA because the CWA requires permitting for the discharge of pollutants from point sources, and distinguishes between point and non-point sources based on the method of discharge into the body of water, not based on the initial cause of the discharge. Because the defendants in this case, the Oregon State Forester, members of the Oregon Board of Forestry, and various timber companies, channeled storm-water runoff into ditches and pipes before discharge into forest streams and rivers, the court held that these discharges constituted point source pollution, which requires a permit.

The NEDC v. Brown decision will require the EPA to treat controlled runoff of natural storm-water from logging roads as Phase I stormwater: storm-water that is associated with industrial activities and requires an NPDES permit to be released. The Ninth Circuit recognized the sizeable demand that its decision will place on the EPA, but stated its confidence, “given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to [regulate the logging road runoff] effectively and relatively expeditiously.” Id. at *20. State forestry agencies and timber companies in Oregon, who are charged with maintaining logging roads, must now seek NPDES permits for discharges of natural runoff carried into navigable waters by channels, ditches, pipes, or the like.

The Nevada Supreme Court last week put lingering municipal water use applications at risk. See the article in the Las Vegas Review-Journal at: http://www.lvrj.com/news/state-high-court-deals-setback-to-pipeline-proposal-for-southern-nevada-83014557.html.

In light of the decision, we recommend municipalities with municipal water use applications filed before 2003 make precautionary refilings immediately (as did the Southern Nevada Water Authority). It is important that the cautionary application contain appropriate remarks so that the cautionary application does not act to intentionally abandon the earlier filing in the event that this decision is reconsidered.

The 2009 Legislative Session passed House Bill 3369. Among other things, this Bill tasked Oregon Water Resources Department (OWRD) with developing Oregon’s Integrated Water Resources Strategy (IWRS). The IWRS goals are to build resources and tools to assist Oregon in looking at its future water needs in terms of water quantity, water quality, ecological needs, economic needs, social needs, and implications of climate change.

Issue papers were drafted addressing these areas and are found by following the link below. These issue papers are open for public comment. All comments received by the OWRD Project Team before October 31st will be available at the next Water Resources Commission meeting currently scheduled for November 19th and 20th in Salem.

According to the Project Team’s September 23, 2009 Briefing, the intent of the IWRS is to “develop a framework, consisting of a set of tools, data, and resources with statewide relevance that communities can use to develop their water resource needs.” We encourage everyone to become involved in this process as submit comments.

Integrated Water Resources Website: http://www.wrd.state.or.us/OWRD/LAW/Integrated_Water_Supply_Strategy.shtml

At Schroeder Law Offices, P.C., we routinely work with our clients to develop efficient water use and management systems. Upon reviewing the competition offered below, we thought of you! Thus, if you are an innovative and efficient water user, or perhaps want to share your ideas with others then you might check out this competition!

Imagine H2O is running its inaugural competition this fall on “Water Efficiency.” Kick-off is September 1st. Competitors will provide solutions that reduce the demand or use of water in either agriculture, commercial and industrial, or residential applications. This could be done via demand response, recycling, reuse, or through any other smart management ideas. Total prizes given in 2009-10 will be $50,000. Winners will receive cash, in-depth business incubation including introductions to financiers, potential beta customers and go-to-market partners, and reduced-rate or free office space.

Imagine H2O is a not-for-profit company based in San Francisco, turning water problems into entrepreneurial opportunities. For more information on the Water Efficiency Competition, you can check out their website at www.imagineh2o.org

Good Luck in the Competition! Be sure to let us know how it goes.

Idaho Power has announced that the Boardman to Hemingway (B2H) project will be holding their Community Advisory Process Public Meetings.

Participants at these meetings will have the opportunity to:
1. Learn more about the Boardman to Hemingway Transmission Line Project.
2. Review and provide input on criteria for evaluating routes for the proposed transmission line.
3. Speak to Idaho Power representatives.

The meeting times and places are as follows:
Baker City
Wed., Aug. 12, 2009 4 p.m. to 8 p.m.
Baker City Community Center
2600 East St.
Baker City, OR 97814

La Grande
Thurs., Aug. 13, 2009 4 p.m. to 8 p.m.
Blue Mountain Conference Center
404 12th St.
La Grande, OR 97850

Pilot Rock
Wed., Aug. 19, 2009 4 p.m. to 8 p.m.
Pilot Rock Community Center
285 N.W. Cedar Pl.
Pilot Rock, OR 97868

Boardman
Thurs., Aug. 20, 2009 4 p.m. to 8 p.m.
Port of Morrow Convention Center
2 Marine Dr.
Boardman, OR 97818

Parma
Tues., Aug. 25, 2009 4 p.m. to 8 p.m.
Community House of Kirkpatrick Church
305 E. Bates Ave.
Parma, ID 83660

Marsing
Wed., Aug. 26, 2009 4 p.m. to 8 p.m.
Community Center – American Legion Hall
126 N. Bruneau Highway
Marsing, ID 83639

Ontario
Thurs., Aug. 27, 2009 4 p.m. to 8 p.m.
Four Rivers Cultural Center
676 S.W. Fifth Ave.
Ontario, OR 97914

For more information, follow the link to the Idaho Power website: B2H Public Meetings

Link to Exempt Well Statute: ORS 537.545

To view this video, follow this link: Hope on the Range

The 2009 Oregon Legislative session is considering further amendments to ORS 118.140, in House Bill 3305. These amendments include an adjustment to the credit to consider inflation. The proposed amendments, if passed, will not be retroactive. House Bill 3305 can be viewed at http://www.leg.state.or.us/09reg/measures/hb3300.dir/hb3305.intro.html

Those who have inherited any natural resources property should check with their tax consultant and attorney to discuss their eligibility and options.

*More information on the Natural Resources Credit can be found at http://www.oregon.gov/DOR/BUS/inher-adv.shtml.
*The 2008 Natural Resources credit form is located at http://www.oregon.gov/DOR/BUS/forms-fiduciary.shtml#2007_Tax_Year, under the link to 2008 Tax Year forms.

By Therese Ure and Lincoln Herman

Aquifer Storage and Recovery (ASR) is a device for the storage of excess surface water which has been appropriated under a valid water right. Originally, this device was used primarily for drinking water, however agricultural and other water users are considering ASR as a device to off set seasonal water shortages.

The process involves the injection of excess surface water into wells for storage and later recovery. The water that is injected into the wells must meet drinking water standards. The user can use new or existing rights for the ASR water uses including storage and recovery. However, it is important to realize that the ASR process must first undergo a testing program under a limited license. Only after completion of the testing program can an ASR applicant apply for a permanent permit. ASR activities are regulated by Oregon Revised Statutes §537.531 through 537.534 and Oregon Administrative Rules §690-350-0010 through 0030.

Artificial Recharge (AR) is a device for the storage of water to be used at a later time primarily for irrigation purposes. This device was created in 1961. Similar to the ASR device, water is added to the groundwater reservoir via injection wells or a seepage system. The recharge water cannot degrade or impair the ground water quality and the underlying water right must be for recharge only. Accordingly, it would be necessary to complete a transfer to change the type of use. In addition, if the AR user wants to recover any water under the storage (or recharge) permit, an additional use right must be applied for noting the source will be the recharged water. Permits are required to appropriate the source and also to pump out the recharged ground water. AR is regulated under ORS §537.135 and OAR 690-350-0120.

It is also important to note an emerging trend of leasing underground space for ASR and AR projects. For more information, contact Schroeder Law Office via phone at 503-281-4100.

TCID announced that water allocations in the District are being increased from 80% to 90%. The District made this decision after Lahontan Reservoir levels continued to rise. Water users can expect to see the adjustment reflected on their next water card.

TCID also announced that due to amendments in A.B. 226, the District now has greater taxing ability. A.B. 226 was signed by the Governor and will take effect on July 1, 2009. Under the new law, the District can now assess residents up to $5.00 per acre. The District decided to increase their assessments from $1.50 per acre or home lot to $3.00 beginning in 2010. This is a 100% increase! According to the District these funds will go towards canal rehabilitation and upgrade activities.

By Attorney Therese Ure & Law Clerk Nicole Widdis

This session, the Oregon Senate passed Senate Bill 311 legislation to amend the Oregon Tort Claims Act (OTCA). The OTCA limits the amount of money damages a plaintiff can receive from a state entity in a civil wrong (aka tort) case. OTCA passed originally in 1967 without limits on tort damages committed by state actors such as officers, employees and agents of the state entity. The 1991, OTCA amendments eliminated tort claims against public officers, employees or agents, when the tort arose from an omission occurring in the performance of a duty. These amendments additionally required the state entity or public body, in lieu of the individual, to be substituted in a lawsuit as the sole defendant.

After 1991, the OTCA effectively left many tort plaintiffs in the position of suing solely the public body. Additionally in section 30.270, the OTCA limited the recoverable damages to a range of $50,000.00 to $500,000.00 (depending on the number of plaintiffs and types of damages). Parties brought suits arguing these statutory limitations violate the Remedy Clause of the Oregon State Constitution, Article 1, Section 10. This section states that “…every man shall have remedy by due course of law for injury done him in his person, property or reputation.” However, in 2002 the Oregon Supreme Court found in Jensen v. Whitlow, that the OTCA on its face (in other words, as written), was not unconstitutional.

In December 2007, the Oregon Supreme Court determined the OTCA violated the Remedy Clause of the Oregon Constitution when applied to a medical malpractice case. In Clarke v. Oregon Health Sciences University, the plaintiff’s damages totaled over $17 million. However, OTCA party limitations required Oregon Health Sciences University (OHSU) to be substituted as the sole defendant. The damages recoverable by the plaintiff under these OTCA limitations capped the damages to $200,000. The Court determined that the statute as applied in this case clearly denied the plaintiff a constitutionally sufficient remedy. However, the Court went on to say the OTCA is constitutional as written. The Court ruled that while it was legal for the legislature to limit OTCA remedies, it was not permissible to eliminate the ability of the plaintiff to sue individual defendants (OHSU employees) whose negligence might have caused the injuries.

In 2009 the Oregon Legislature addressed this ruling in Senate Bill 311 which amends certain parts of OTCA, and repeals the previous statute setting damage limitations. New damage limits range in the millions rather than thousands of dollars. Furthermore, the new legislation widens the number of parties a plaintiff in these tort cases may sue, and sets the damages limits with respect to the state, officers, employees and agents acting within the scope of their employment or duties. The legislation will regulate liability limits for the state and other public bodies, and makes clear that OHSU, a state entity, is covered by the legislation. The OTCA legislation does not allow punitive damages.

Finally, the new legislation creates a legislative Task Force to study the impact of the new legislation and the operation of other laws governing tort liability of public bodies. The new laws will take effect July 1, 2009.

Sources: Oregon Senate Bill 311, 75th Oregon Legislative Assembly. Clarke v. Oregon Health Sciences University, 343 Or. 581, 175 P.3d 418 (2007). Jensen v. Whitlow, 334 Or. 412, 51 P.3d 599 (2002).

By Law Clerk Lincoln Herman

“Rainwater Harvesting”

These are systems designed to capture water that runs off the roof of a structure. Under Oregon Law you may only capture the water that runs off of your roof in one of these systems. The purpose is to create a store of water that can be reused both in and outside of the structure. For example, water collected in a rain barrel may be reused for gardening. Also, water collected in a cistern system may be filtered.

There is a large volume of water that may be collected from a roof. For example, a home near Portland with a footprint of 2,000 square feet has a runoff of just over 39,000 gallons per year. All of that water may be captured and reused. The national average for household water usage is 127,400 gallons per year. Accordingly, a reduction in fresh water usage of almost one third is possible.