Contempt ruling issued against Oregon water regulators upheld

Date:
September 13, 2021
Contempt ruling issued against Oregon water regulators upheld

Oregon water regulators were correctly held in contempt of court for failing to comply with an irrigation settlement deal, according to the state’s Court of Appeals.

The state’s Water Resources Department must also pay more than $150,000 in litigation expenses to several Harney County irrigators who filed a lawsuit to enforce the agreement, the appellate court said.

Sarah Liljefelt, attorney for the plaintiffs, said she wishes the contempt case hadn’t been necessary to get OWRD to follow through on its obligations and bring regulatory certainty for irrigators.

“I hope the contempt action will bring the department back to the table to give finality as to how and how not it will regulate water in the future,” she said.

The dispute stems from the agency’s enforcement of water rights along the Silvies River and the Foley Slough, which flows from it.

The OWRD claimed that it had to protect senior irrigators after other water users placed a rock weir in the Silvies River to force more water into Foley Slough without the agency’s approval.

Irrigators who relied on water from the Foley Slough challenged the OWRD’s enforcement orders in 2002, alleging the agency cut off water to the entire waterway instead of regulating individual points of diversion.

Under the settlement deal reached in 2006, OWRD agreed to assess both sets of irrigators a per-acre fee to build a water control device across the river and slough, allowing water to be split proportionally among them.

The agency estimated the project’s cost would top $435,000, which prompted OWRD and some water users to examine alternative ways to distribute the water as part of a pilot project.

The agency claimed these improvements allowed it to measure and control water in compliance with the settlement deal.

After OWRD withdrew its court motion to collect money for the device in 2015, several irrigators along the Foley Slough accused the agency of contempt of court for not abiding by the settlement.

In 2019, a state judge ruled that OWRD had committed contempt of court by breaching the deal, which the agency appealed, arguing the court judgment that ended the lawsuit didn’t incorporate the settlement’s terms.

Even if the settlement was incorporated into the judgment, OWRD claimed it had come up with an alternative to the water control device that still satisfied the deal’s terms.

The Court of Appeals has now rejected those arguments.

“Because the record contains evidence to support the trial court’s finding that the parties intended to incorporate the settlement agreement, respondents’ argument to the contrary fails,” the appellate ruling said.

The Court of Appeals also determined that the OWRD willfully violated the agreement’s terms and ordered the agency to pay the plaintiffs $156,000 in attorney fees and other costs.

Liljefelt, the plaintiffs’ attorney, said that her clients were willing to negotiate another agreement for regulating water in the river and slough.

The OWRD wasn’t willing to enter into a new deal, which forced the irrigators to file a lawsuit because they feared the agency would again shut off water to the slough.

“Our clients just want finality as to how water is managed in the system,” Liljefelt said. “Our goal isn’t to require the department to install an expensive measurement device if it’s not needed.”

A representative of OWRD asked Capital Press to submit questions about the appellate court’s ruling in writing but hadn’t yet responded as of press time.

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