Vanport was the second largest “city” in Oregon prior to 1948.  Located within the Columbia River flood plain, the unofficial city housed thousands of war-time defense employees working primarily in the shipbuilding industry.  Its short-lived existence came to an end, however, in the spring of 1948 when uncharacterstic rain and warm weather caused widespread flooding in the Columbia River.  The river claimed Vanport along with a number of lives, resulting in added attention for the need for flood control within the Columbia River basin.  The event prompted not only the Flood Control Act of 1950, but also vigorous discussion with Canada regarding flood management north of the border where in excess of 35% of Columbia River flow originates.

In 1964, the United States and Canada entered a treaty providing for the construction of dams for the purpose of storage and flood control.  As a result,  3 Canada dams were constructed to withhold and store large volumes of water during run-off months.   The stored water is then released throughout the year to sustain hydro-power generation downstream in the United States.  In return, the United States grants energy entitlement to Canada that carries an estimated value of 250-350 million dollars per year.  By its terms, the first opportunity to change or cancel our Treaty with Canada occurs in 2024.  However, either side must provide at  least 10 years advance notice to the other.  Hence, 2014.

A lot has changed since 1964.  Therefore, a colloborative effort between stakeholders, the Bureau of Reclamation, Corps of Engineers, Tribes, and numerous federal, state, and local governments is developing a recommendation as to whether the United States should seek to continue, cancel or change the Treaty.  Those involved are reviewing data and modeling with respect to how continuation, modification or termination of the Treaty may affect key interests such as flood control, water supply, hydro-power, and ecological goals.    The process is now entering its final stages.  A recommendation will be forwarded to Department of State and Oval Office by the end of 2013. 

Additional information is available  at www.crt2014-2024review.gov.

Professor Michael Blumm is a noted scholar and professor at Lewis & Clark Law School. I had the privilege of attending more than one of his classes during my time there. Therefore, I was somewhat surprised when I read his guest editorial in the Oregonian and letter to the Oswego Lake Work Group regarding public access to Oswego Lake. Links to the documents are provided here:

http://www.oregonlive.com/opinion/index.ssf/2012/01/public_access_struggle_citizen.html

http://welovelakeoswego.com/wp-content/uploads/2012/01/Michael-Blumm-Letter_01.01.12.pdf

As a fly fisherman, the public’s use of navigable waterways has always been an area of special interest to me. More access equates to more fish. To me, an analysis of the public’s right of access to Oswego Lake is far more complex than Professor Blumm indicates.

First, there is a difference between a) the public’s right of navigation and b) the public’s right to cross private land for purpose of reaching navigable water. While the Oregon Admission Act of 1859 does in fact state that “all the navigable waters of said State, shall be common highways and forever free,” the Act makes no mention of a citizen’s entitlement to cross private land for purposes of reaching navigable waters.

In his January 3, 2012 comments, Professor Blumm points to an 1869 case, Weise v. Smith to suggest that such a right does in fact exist. There, the Supreme Court condoned the use of private uplands to construct booms necessary to move logs downstream through a navigable waterway. Professor Blumm omits reference, however, to subsequent cases that refute his bold conclusions. For example, in Lebanon Lumber Co. v. Leonard (1913), the Court determined that “[w]here the bed and banks of the stream are owned by the riparian proprietor, the navigability of the stream does not give to the navigator a right of way on the land.” Moreover, in Guilliams Et Al. v. Beaver Lake (1918), one of the very cases relied upon by Professor Blumm, the Supreme Court refused to find that the right of navigation carries a concomitant right of egress across adjacent private lands.

Second, Professor Blumm’s editorial characterizes access to Cannon Beach as a similar example of how the public holds access rights to publically held resources such as Oswego Lake. I find use of the Cannon Beach analogy troubling. I suspect Professor Blumm is referring to the Supreme Court’s landmark decision in State ex rel. Thornton v. Hay (1969). There, the court determined that the public enjoys a right of access across privately owned “dry sand” portions of the beach. To arrive at this conclusion, the Supreme Court reasoned that the legal doctrine of “custom” was applicable due to the public’s time immemorial use of the dry-sand area to reach the ocean – a use dating back to aboriginal natives. Notably, the Supreme Court in Thornton declined the opportunity to base its ruling upon navigability doctrines. In the case of Oswego Lake, the Thornton legal analysis seems completely inapplicable given the lake’s history and artificial traits.

Third, it is my understanding that substantial water is retained in Oswego Lake by virtue of dam. Professor Blumm’s conclusions therefore presume that a servitude, in the public’s favor, has silently arisen over these private lands by virtue of the water’s artificial placement there. While the question has been litigated elsewhere with varying results, I am unaware of any cases in Oregon that support an unqualified public right of navigation over private lands underlying artificially impounded water. Therefore, Professor Blumm’s conclusions appear to overlook a legal question that must first be reconciled prior to opining on public access to Oswego Lake.

Finally, it seems that Professor Blumm’s position would be substantially bolstered if the City of Lake Oswego owns unencumbered land abutting Oswego Lake. If so, a publicly owned right of way might then exist over uplands for purposes of reaching the surface water of the Lake. Because this consideration is so critical – and because Professor Blumm fails to address it – I suspect public access to certain areas of Oswego Lake is enjoyed pursuant to a limited easement rather than fee title ownership of land abutting or underlying the lake. If true, the City would be constrained from enlarging the scope of its swimming easement to include, for example, a boat launch.

The Director’s Report for the Oregon Water Resources Commission January Meeting breaks down water conditions in the State:

“Current Water Conditions: The surface water supply index (SWSI) is a numerical index computed for the 14 major water basins in Oregon. The index ranges from + 4.0 indicating extremely wet conditions to – 4.0 indicting extremely dry conditions. An index of 0 would indicate normal conditions. The index is computed monthly and generally considers snowpack, rainfall, irrigation reservoir content and average monthly streamflow. On December 1, 2011 the indices in the 14 basins ranged from -1.5 in the Klamath Basin to +1.6 in the Deschutes Basin. According to the SWSI, water conditions in Oregon are generally below normal and trending downward.

On January 9, 2012 snowpack conditions range from a high of 55 percent of normal in the Grande Ronde, Powder, Burnt and Imnaha Basin Basins to a low of 19 percent of normal in the Owyhee Basin. Generally, snowpack is currently well below normal after 3.5 months into the water year.

We normally experience the bulk of our snowpack accumulation in December, January and
February. Total precipitation for the water year ranges from a high of 69 percent of normal in the
Grande Ronde, Powder, Burnt and Imnaha Basins to a low of 44 percent of normal in the Lake
County/Goose Lake Basin.

Storage carryover in the major irrigation reservoirs puts them at near normal capacity.
The northwest is still under the influence of La Niña conditions and continues to be forecasted for below normal temperatures and above normal precipitation over the winter period. However, these conditions have not been consistent with the moving three month forecast. Storms have been consistently pushed to the north, leaving the state with below normal water conditions.”

Revised Statute 2477 was passed by Congress in 1866 and provided an open-ended grant of “the right of way for the construction of highways over public lands, not reserved for public uses.” Commonly called “R.S. 2477,” the statute facilitated most of the transportation routes of the West and remained in effect for 110 years. During that time, congressional policy promoted the development of the unreserved public lands and their passage into private productive hands.

In 1976, congressional policy shifted as Congress passed the Federal Land Policy Management Act (FLPMA). FLPMA instituted a preference for retention of the lands in federal ownership and placed increased emphasis on conservation and preservation. R.S. 2477 was repealed, however Congress specified that any “valid” R.S. 2477 rights of way “existing on the date of approval of this Act” (October 21, 1976) would continue in effect. Pub.L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976). The statute had the effect of “freezing” R.S. 2477 rights as they were in 1976.

In a landmark 2005 case, Southern Utah Wilderness Alliance v. Bureau of Land Management, the United States 10th Circuit Court of Appeals determined that the BLM lacks jurisdiction to adjudicate the validity of claimed R.S. 2477 roads. The case focused on three Utah counties that graded and performed work on sixteen previously un-graded roads traversing public land.

According to Public Lands News, the State of Utah has now filed notices of intent with the Department of Interior that it will file lawsuits to claim 18,784 R.S. 2477 road rights-of-way. Utah’s massive assertion of R.S. 2477 rights-of-ways sets the stage for potentially decades of litigation between Utah and the United States. Environmental groups are sure to join the fracas in an effort to preserve the road-less nature (and hence wilderness qualification) of many federal lands.

 Under Oregon law, a city may provide utility services to its inhabitants “[w]hen the power to do so is conferred by or contained in its charter or act of incorporation.” (ORS 225.020).  This includes providing water and sewer services “for profit” so long as the city’s charter provides and the public trust is not violated in doing so.

Portland is currently facing a lawsuit that will push the City’s water and sewer disposal expenditures to the forefront.  The claimants, a group of ratepayers, assert that Portland violates the city’s charter by diverting water and sewer funds toward projects and expenditures unrelated to the provision of those services.  The suit seeks an independent accounting of water and sewer disposal fund expenditures, together with an order of reimbursement.

The court will be asked to interpret key portions of Portland’s City Charter, including whether Portland’s charter restricts the City Council from using rate-payer funds to finance so-called “pet” projects.  The court will also be asked to determine whether various past expenditures were reasonably related to the provision of water and sewer services.

Follow this link to an article discussing the suit:  http://www.oregonlive.com/portland/index.ssf/2011/12/portland_faces_lawsuit_over_ut.html\

OWRD’s Reimbursement Authority Program provides water users with an opportunity to expedite final action on extension and transfer applications. Through the program, the water user enters an agreement to pay the costs necessary for OWRD to engage outside contractors to conduct OWRD’s review of the application. The benefit is clear. Rather than sitting in a pile indefinitely, the application is reviewed.

If you’re a municipally, however, you shouldn’t plan on utilizing the program for your water permit extension applications. Under ORS 537.230, OWRD is required to consult with the Oregon Department of Fish and Wildlife (“ODFW”) prior to approving a municipal extension application that will affect waterways holding sensitive, endangered or threatened fish. Unfortunately, the reimbursement authority program does not extend to the ODFW, which has been reviewing a backlog of municipal extension applications in the Willamette Valley since 2006. OWRD reports that municipal and quasi-municipal Rogue River basin extensions will follow next. Reimbursement authority will not push your application to the top of ODFW’s pile.

Tired of entities and governments chipping away at your Newlands Project water rights? Schroeder Law Offices will host an informational meeting for water users in the Newlands Project. The meeting will address reduced water allocations pursuant to OCAP regulations governing the Truckee Carson Irrigation District. These reductions may be actionable in court as a breach of contract or an illegal “taking” of property for public use.

Project water users that would like to learn more or that may be interested in participating with a group of water users to pursue these causes of action are invited to attend the meeting. It will be held in from 6:00 to 8:00 pm on March 4, 2009 in the Commissioners’ Chambers of the Churchill County Administrative Complex, 155 N. Taylor Street, Fallon. There is no charge for the meeting and additional information will be provided at that time.