December 1, 2017
CapitalPress.com
3
Feds, tribes say farm groups overreacting to culvert case
verts that block fish passage, a
decision that has no implica-
tions for land use,” according
to the brief filed on behalf of
20 tribes.
The briefs respond to an
appeal filed by Washington
Attorney General Bob Fer-
guson, challenging an order
to replace more than 800
culverts under state roads.
The appeals court ruled the
culverts reduce fish runs and
violate treaty rights. The Su-
preme Court has yet to decide
whether to take on the case.
The state estimates fixing
the culverts will cost nearly
$2 billion, but the bigger is-
sue is whether the order sets
a precedent for tribes to chal-
lenge other structures or prac-
tices that could harm fish.
The Washington, Oregon,
Idaho and Montana Farm
Bureaus filed briefs in Sep-
tember asking the Supreme
Court to hear the appeal,
U.S. Supreme Court
asked to reject
appeal
By DON JENKINS
Capital Press
Lawyers for the U.S. De-
partment of Justice and Puget
Sound tribes say Western farm
groups are mistaken to think a
court order directing Wash-
ington to replace fish-block-
ing culverts foreshadows
trouble for agriculture.
The department and tribes,
in briefs filed Monday, asked
the U.S. Supreme Court to let
stand the order by the 9th U.S.
Circuit of Appeals, arguing
that the directive isn’t a fore-
runner to restricting farming,
removing dams or reordering
water rights.
“The court held only that
the state cannot maintain cul-
U.S. Supreme Court
The U.S. Department of Justice and Puget Sound tribes filed briefs
Nov. 27 asking the U.S. Supreme Court not to hear Washington
state’s appeal of a court order to remove more than 800 fish-block-
ing culverts. Farms groups are urging the court to hear the appeal,
arguing the order sets a precedent for restricting farming, removing
dams and reordering water rights.
as did seven states, led by
Idaho. The farm groups and
states argue the case has
far-reaching implications,
particularly in Western
states with treaty tribes, and
should be decided by the Su-
preme Court.
The Justice Department
and tribes downplayed the
case’s importance and asked
the Supreme Court to reject
the appeal without a hearing.
The tribes and Justice
Department sought to rebut
Appeals Court Judge Di-
arumuid O’Scannlain, who
accused the court of discov-
ering new rights in 19th cen-
tury treaties and “fashioning
itself a 21st century environ-
mental regulator.”
The order was based on
“concrete facts” related to
culverts, and wasn’t a broad
demand to protect fish habi-
tat, according to the Justice
Department. “Hence, Judge
O’Scannlain’s assertion that
any activity that negatively
affects fish habitat could be
an ‘automatic treaty viola-
tion’ is wrong.”
The pending case is root-
ed in a lawsuit initiated in
1970 against Washington
by the U.S. government on
behalf of the tribes. Previ-
ous court rulings guaranteed
tribes up to 50 percent of the
fish harvest, but litigation
related to the supply of fish
continues.
Another point of con-
tention is whether the order
to remove culverts con-
flicts with the U.S. Supreme
Court’s Fishing Vessel ruling
in 1979. The court in that case
ruled that Puget Sound tribes
were entitled to half the catch,
unless a tribe dwindled to
“just a few members.” Then,
according to the court, a 50
percent share would be “man-
ifestly inappropriate” and
could be reduced, as long as
the share was enough for trib-
al members to make a “mod-
erate living.”
The state argues the ap-
peals court misinterpreted the
decision as a guarantee that
there would be enough fish
for a moderate living.
The tribes argue the Fish-
ing Vessel ruling was about
sharing the fish and that the
pending case is about wheth-
er the state can build roads
across streams and destroy
fish runs.
Judge: No ‘blanket
immunity’ for
aspiring pot growers
facing lawsuit
Water year off to a good start
in Eastern Oregon, SW Idaho
By MATEUSZ PERKOWSKI
BOISE — Snowpack lev-
els in southwestern Idaho
and Eastern Oregon basins
are well above normal, a
good sign for the thousands
of farmers in the region who
depend on those basins to pro-
vide the water they need for
their crops.
The amount of water car-
ried over in area reservoirs
after the 2017 water year that
will be available for irrigators
in 2018 is also significantly
higher than normal.
“We’re looking good so
far. If it continues, we’re
going to have a fairly good
year” in 2018, said Tim Page,
manager of the Boise Project
Board of Control, which pro-
vides water to 167,000 acres
and five irrigation districts in
southwestern Idaho.
In the Boise River basin,
snowpack levels were 160
percent of normal as of Nov.
21 and the Boise River sys-
tem’s reservoirs had 250,000
acre-feet of carryover water,
well above normal.
As of this week, there was
enough water in the system
to equal about 50 percent of
the project’s total water right,
up from the 36 percent that is
typical for this time of year,
Page said.
“Things can change quick-
ly but so far it’s looking pretty
good,” he said.
Snowpack in the Payette
River basin is 207 percent of
normal. It’s 188 percent of
normal in the Weiser River
basin and 191 percent of nor-
mal in th Owyhee River basin.
Ron Abramovich, a re-
gional water supply specialist
with the Natural Resources
Conservation Service, said
some snow measuring sites
have 20-30 percent of what
their typical April 1 peak is.
“Snowpack is off to a good
start,” he said.
The Owyhee Reservoir,
Capital Press
Oregon’s “right to farm”
law doesn’t provide aspir-
ing marijuana growers with
“blanket immunity” from a
lawsuit filed by grape-pro-
ducing neighbors in Yamhill
County, a judge has ruled.
Yamhill County Circuit
Judge John Collins has de-
nied a motion to dismiss a
complaint against the mari-
juana operation planned by
Steven and Mary Wagner,
and their son Richard.
A nearby vineyard own-
er, Momtazi Family LLC,
claimed the marijuana odors
would damage wine grapes
with “foul-smelling parti-
cles” and sought an injunc-
tion against cultivation of
the psychoactive crop.
The lawsuit was joined
by Harihari and Parvathy
Mahesh, neighbors who ha-
ven’t yet planted a vineyard
but plan to do so.
Last month, the Wagners
asked the judge to throw out
the lawsuit because there
was no evidence that mar-
ijuana odors would cross
property lines and because
the planned marijuana oper-
ation wasn’t yet definite.
“You don’t get to file a
lawsuit with no facts, sheer
conjecture, pure speculation
about what will happen,”
said Allison Bizzano, their
attorney, during oral argu-
ments on Oct. 11 in McMin-
nville, Ore.
Richard Brown, attorney
for the plaintiffs, countered
that it’s common to enjoin
activities that haven’t yet
occurred but that would
cause damage.
“If the court allows them
to develop the property first,
it’s the equivalent of let-
ting them pull the trigger,”
Brown said.
Mateusz Perkowski/Capital Press
Marijuana plants grow in a
high tunnel at a farm near
McMinnville, Ore. A judge has
refused to dismiss a lawsuit
filed by neighbors against a
planned marijuana operation
in Oregon’s Yamhill County.
The judge sided with the
plaintiffs on this issue, rul-
ing that an injunction can be
a preventive remedy meant
to “stay the lawless hand
before it strikes the blow,”
based on a legal precedent
from 1914.
“While this language
from an old case might be
seen as somewhat arcane
today, the principle re-
mains: A party may seek
injunctive relief not just to
halt an ongoing harm, but
also to head off that harm
if the harm can reasonably
be predicted to occur in the
reasonably near future,” he
said.
The judge also disagreed
with the defendants that the
case is barred by the “right
to farm” law, which prohib-
its nuisance and trespass
lawsuits against common
farming practices.
A provision from that
law clarifies that it doesn’t
protect against lawsuits
alleging
“damage
to
commercial
agricultural
products.”
By SEAN ELLIS
Capital Press
Sean Ellis/Capital Press File
A sugar beet field in Eastern Oregon. A full water allotment for the first time in four years has made
a big difference for farmers who depend on the Owyhee Reservoir to irrigate their crops. Basins in
southwestern Idaho and Eastern Oregon have above-average amounts of snowpack for this time
of year, and area reservoirs have higher than normal amounts of carryover water from the 2017
season.
which provides irrigation wa-
ter to 118,000 acres in Eastern
Oregon and part of Idaho, has
434,000 acre-feet of carry-
over water, which equals 61
percent of the reservoir’s ca-
pacity.
That’s up significantly
from 200,000 acre-feet at
this time last year and well
above the typical 300,000
acre-feet for this time of
year, said Owyhee Irrigation
District Manager Jay Cham-
berlin.
Farmers who get their wa-
ter from the Owyhee Reser-
voir suffered through several
years of drought and reduced
water supplies until last year
and 2018 is shaping up to be
another good year, Chamber-
lin said.
The excellent start to the
water year means the district
may have to release water for
flood control early next year,
“but that’s a good problem to
have,” he said. “I’ll take that
kind of problem any day over
what we had the past several
years.”
The Payette River sys-
tem’s reservoirs have about
450,000 acre-feet of carry-
over water, which is 71 per-
cent of full capacity and well
above the 325,000 acre-feet
that could typically be ex-
pected this time of year,
said
watermaster
Ron
Shurtleff.
“We’re getting a great start
and carryover is excellent,” he
said. “The Payette River basin
could weather a pretty modest
winter and still come out fine”
for 2018.
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