Friday, May 6, 2022
CapitalPress.com 5
Judge rejects arguments against irrigation pipeline project
By MATEUSZ PERKOWSKI
Capital Press
Opponents of an irrigation pipe-
line project in Central Oregon are
incorrect that it violates an easement
meant for open canals, according to
a federal judge.
U.S. Magistrate Judge Mus-
tafa Kasubhai has determined the
Tumalo Irrigation District hasn’t
exceeded the scope of an easement
across opponents’ properties by
replacing open canals with piping.
The irrigation district is install-
ing pipelines to conserve water that
would otherwise be lost to seepage
and evaporation, but opponents fear
the loss of an open canal will harm
vegetation and reduce their prop-
erty values.
Kasubhai has recommended
rejecting the arguments of nine
landowners who filed a complaint
seeking to block the pipeline proj-
ect, but the ruling must still be
affirmed by U.S. District Judge
Anne Aiken to have legal effect.
“Placing irrigation pipes below
ground is a reasonable modification
that falls squarely within the ease-
ment’s purpose,” Kasubhai said.
Ryan Brennecke/EO Media Group
Excavation crews place a section of pipe in the Tumalo irrigation canal. A federal judge has rejected
arguments that replacing open canals with pipelines violates an easement across the properties of
project opponents.
The argument that landowners
will be “unnecessarily burdened” by
diminished property values should
also fail, he said. “However, the
removal of an unintentional bene-
fit to servient estate holder is insuf-
ficient to establish an increase in
burden.”
Opponents of the project claim
the irrigation district’s easement
across their properties does not per-
mit digging below the bottom of the
canal to install the pipeline. They
pointed to language governing the
easement that limits its scope to 50
feet “on each side” of the canal.
The judge said the 50-foot limit
applies vertically as well as horizon-
tally, which means they’ve wrongly
interpreted the easement’s terms.
“Critically, plaintiffs’ interpre-
tation effectively replaces the word
‘each’ with ‘either’ in an attempt to
limit the geographic scope of the
easement to the water’s horizontal
margins,” he said.
The Tumalo Irrigation District,
which manages 80 miles of canals
and pipelines that serve about 7,400
acres, typically lost half the water
running through open canals.
Such losses disrupt irrigation
when below-average snowpacks
reduce the water supply, with federal
protections for the threatened Ore-
gon spotted frog further aggravating
the problem.
Opponents filed a lawsuit in
2020 against replacing open canals
with pipelines because the lack of
seepage would likely kill centu-
ry-old Ponderosa pines and other
plants along the canal, damag-
ing wildlife habitat and property
values.
“The burden is the loss of hun-
dreds of thousands of dollars in
property value. It cannot occur in
this way if the burden on the servi-
ent estate is increased,” said Esack
Grueskin, attorney for opponents,
during oral arguments earlier this
year.
The irrigation district countered
that irrigation districts have histori-
cally built elevated pipelines to cross
rivers and other obstacles, just as it’s
now common to rely on easement
to install pipelines underground.
“The method of delivery may
reasonably change over time,” said
Mark Reinecke, the irrigation dis-
trict’s attorney. “There is nothing to
say it cannot be done below the bot-
tom of the canal or anything else.”
Oregon farm education proposal
doesn’t meet land use criteria
By MATEUSZ PERKOWSKI
Capital Press
Oregon’s Marion County wrongly
approved an agricultural education program
on a 75-acre property in an “exclusive farm
use” zone, according to a land use ruling.
The landowners planned to charge fees for
children to enter the property near St. Paul,
Ore., where they’d learn about crop produc-
tion, view wildlife and engage in seasonal
activities, such as corn mazes and pumpkin
tossing.
Last year, the county’s board of commis-
sioners approved a conditional use permit for
“Seasons at the Red Oak Farm,” overruling
planning officials, who said the proposal didn’t
meet land use criteria.
The state’s Land Use Board of Appeals has
now ruled the program is a commercial activ-
ity that isn’t sufficiently based on an underly-
ing farm use, since the landowners intended to
grow plants for demonstration and education
rather than to profit from their sale.
“Intervenors did not provide substantial evi-
dence to demonstrate that the field crops were
Washington
to spray for
Japanese
beetles
By DON JENKINS
Capital Press
The Washington State
Department of Agriculture on
May 2 began what it expects
to be a multi-year campaign to
eradicate Japanese beetles in
Yakima County.
A contractor will spray
the insecticide Acelepryn to
kill grubs in a 49-square-mile
area that includes the town
of Grandview and the sur-
rounding area. The spraying
is expected to last through the
summer.
The
department
has
received permission to spray
from 1,504 landowners and
awaits to hear from 2,824 oth-
ers, department spokeswoman
Amber Betts said Wednesday.
Eight landowners have
denied permission. Betts said
the department won’t force
its way onto the properties by
invoking its broad police pow-
ers to spray for insects.
The department anticipates
spraying next year and hopes
the reluctant landowners will
change their minds, Betts said.
“We’re hoping we’re going to
be able to get 100% participa-
tion eventually, with consent,”
she said.
Oregon and Idaho have
battled Japanese beetles, but
Washington has not until now.
The agriculture department
trapped more than 25,000 of
the invasive pests last year in
the Grandview area.
Japanese beetles have
wide-ranging tastes that
include some of Central Wash-
ington’s most valuable crops,
such as apples, grapes and
hops. The department will
spray around homes and busi-
nesses, but not on farms.
Japanese beetles emerge
and begin flying in June.
Highly infested properties
may receive more applica-
tions during the flight season,
according to the department.
grown for the primary purpose of obtaining a
profit from their harvest and sale,” LUBA said,
referring to the landowners.
The educational program’s potential to pro-
duce “future agricultural workers” by sparking
their interest in farming also doesn’t justify the
conditional use permit, the ruling said. Encour-
aging an interest in farming may be a “laudable”
goal but it does not actually meet a “farm use
demand.”
“The hypothesized connection between par-
ticipating in the program and a future career
in agriculture is too remote and speculative,”
LUBA said. “Some children who participate in
the program may choose to work in agriculture
and others may choose a different career.”
The educational program would not support
or supplement farm uses, but instead it would
be the property’s primary use, which means it’s
“the tail wagging the dog,” the ruling said.
Aside from these problems, LUBA deter-
mined the county did not satisfy the “farm
impacts test” in approving the program’s per-
mit. Under this standard, a conditional use can-
not force a significant change to farm practices
or increase their cost.
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