A legal tool that allows Oregon farmers to prevent irrigation shutdowns is safe for now but lawmakers may revisit a proposal to eliminate it.
In times of low water availability, state regulators can order a grower to halt irrigation to protect the owner of a senior water right with an older “priority date” for withdrawing water.
Under current Oregon law, the junior irrigator can fend off such enforcement by filing a “petition for review” lawsuit against the Oregon Water Resources Department.
Critics of this “automatic stay” mechanism claim it’s being abused by irrigators who know that slow-moving legal processes will effectively allow them to keep diverting water to the detriment of senior users.
In recent years, the practice has become controversial due to numerous lawsuits against OWRD’s orders “regulating off” irrigators at the urging of the Klamath Tribes, who hold the most senior “time immemorial” water rights.
“There are other senior water rights in Oregon that this should be a concern of theirs because any junior water right can use this loophole anywhere in the state of Oregon,” said Don Gentry, tribal chairman of the Klamath Tribes.
Gentry and other tribal representatives recently testified in favor of House Bill 3430, a proposal that would remove the “automatic stay” provision from Oregon water law.
While the bill is currently dead due to legislative deadlines, the May 21 hearing before the House Committee on Energy and the Environment was likely an effort to “gear it up” for a future legislative session, said Jerome Rosa, executive director of the Oregon Cattlemen’s Association.
Eliminating the automatic stay would leave irrigators vulnerable to potentially erroneous shutdown orders, he said.
“Our concern is some of these judicial decisions can take years, and in the meantime, our farmers and ranchers won’t be able to utilize their water rights.”
Opponents of HB 3430 argued that eliminating the automatic stay would endanger due process in water rights enforcement, while the bill’s proponents claimed the mechanism already harms the due process of senior water rights holders.
“We believe it’s a necessary fix to something that flies in the face of prior appropriations doctrine,” said Gentry of the Klamath Tribes, referring to the “first in time, first in right” tenet of Oregon water law.
Senior water users don’t even receive a notice when an enforcement action is suspended due to the automatic stay, said Ed Goodman, an attorney for the Klamath Tribes.
“The automatic stay doesn’t protect due process, the automatic stay deprives the senior water right of due process,” he said.
Even without the automatic stay, junior water users could still seek a temporary restraining order against an allegedly unjustified enforcement action, Goodman said.
Though the Oregon Water Resources Department can overturn an automatic stay, this process takes time during which the senior water user is harmed, said Tom Byler, the agency’s director.
Since 2015, the agency has denied six of the 32 automatic stays associated with cases challenging enforcement orders, he said.
In the past, a grower has filed another lawsuit against the denial of an automatic stay, effectively reinstating the stay and “creating this loop pattern,” Byler said. “I want to be clear that the department does not support taking away due process. The question is what does that due process look like.”
Without the automatic stay, farmers would be forced to spend money on litigation without being able to earn a living, said Sarah Liljefelt, an attorney for the Oregon Cattlemen’s Association.
“Rather than putting them out of business, this automatic stay is their first chance to try the facts,” Liljefelt said.
The Oregon Water Resources Department can take aggressive action against lawsuits it considers frivolous, since unsupported claims are subject to civil sanctions, said Dominic Carollo, an attorney who represents irrigators.
“They have tools available under the Oregon process to weed those lawsuits out,” Carollo said.
Growers must also expend a substantial amount of time and money to file a petition for review of an agency action, said Caylin Barter, attorney for the Oregon Association of Nurseries.
“They are not simple documents to put together,” she said.