Eminent domain?: East Valley Water District takes landowners to court

January 2015 Posted in News

By Kristine Thomas

East Valley Water District board members Duane Eder and Dave Bielenberg and Victor Point landowners Joel Rue and Bruce Jaquet all say they are farmers – not experts on legal matters.

Yet, all four are now immersed in learning as much as they can about land use laws due to the disagreement over EVWD’s proposal to build an 12,000 acre reservoir on the land of more than 10 Victor Point farmers, several of whom are fourth generation landowners. The property is outside the EVWD’s boundaries.

Bielenberg said the EVWD was mandated by the state to find additional water resources since more than 26,000 acres of EVWD’s service area is between two groundwater limited areas designated for protection by the Oregon Water Resources Department.

The EVWD considered several water supply strategies and more than 75 sites before identifying Drift Creek as the most viable site for their water supply development project, he said. According to EVWD documents, the districts’ “approximately 75 members are currently served by a combination of individual farm wells and direct withdrawals from local surface waters. Limited water surface supplies and lowering groundwater levels makes the development of a new surface water source imperative.”  In order to conduct the necessary tests and studies to determine if it is feasible to proceed to build the reservoir and dam on Drift Creek, Bielenberg said EVWD needs access to the farmers’ Victor Point land.

But the landowners, uninterested in the proposal, have denied EVWD access. Now the district is the plaintiff in a case asking for access in the form of a summary judgment against the defendants – Bruce Jaquet, Robert Qualey, Kathleen Jaquet, Cheri Perry-Harbour and Norbert Dominick.

On Monday, Jan. 5 at 2 p.m., the two sides will present their cases before Judge Claudia Burton in courtroom 1B of the Circuit Court of Oregon in Marion County. The EVWD will be represented by Stoel Rives LLP and the Victor Point landowners by Tonkon Torp LLP. Both are Portland law firms.

It won’t be the first time the sides have faced off in court.

The East Valley Water District board members filed a lawsuit in October seeking two claims for relief. It asked for a declaration that it is entitled to access the defendants’ property to do surveys and tests. Secondly, it asked for an injunction forcing the landowner to allow them access.

“At the same time as they filed the complaint, they moved for a preliminary injunction, which would have allowed them access right away before waiting for a decision in the case,” wrote Janet Neuman, senior counsel at Tonkon Torp.

Neuman wrote when the case was heard on Oct. 31, the judge agreed with the Victor Point  landowners that the district had not shown the necessary requirements for getting an immediate injunction.

At the Jan. 5 hearing, the underlying issue is fairly straightforward, Neuman wrote, “does the district have authority to condemn your property – because if they do, then the statute clearly gives them the right to come on and do testing. The judge recognized that a decision on that legal question essentially decides the case, so she asked for cross-motions  for summary judgment. A summary judgment is appropriate when a case can be decided on a legal question without the need to resolve any factual disputes.

“So, both of us will make our  best argument that the law is in our favor. Then we each get to answer the other side’s motion, and once all the briefing is done, the court will decide if the district has a right to condemn (and thus has the right of access before condemnation).”

In mid-December, Bielenberg and Eder met with Our Town to explain why the district needs to build the reservoir and why they are going to court.

“We are trying to access to the land so we can finish our studies,” Bielenberg said. “We are not seeking to condemn property. The landowners have denied us access to their property. We need to have access to determine if we can proceed with the reservoir.”

Bielenberg and Eder say the district was granted access by farmers in the past to conduct studies.

“What has changed?” Bielenberg said.  “We didn’t have full access. We had some access.”

What has changed, Rue said, in a separate interview, is the Victor Point farmers have a better understanding of the law and their rights.

“We are more educated now. We are resisting because we don’t want them to take our property,” Rue said. “We feel this hearing is one of the early hurdles to determine if the water district has the power of eminent domain to condemn our property.”

Rue said it was either 2005 or 2006 when he was approached by Bielenberg and EVWD board member Glenn Goschie about the plan to build the Drift Creek reservoir. “They came to us as individuals and told us this is what they are doing,” Rue said. “They told us they were going to buy the property, build a reservoir, put a fence around it and store the water for only irrigation,” Rue said. “We were told that if we don’t agree with them, they have the power of eminent domain.”

Rue said he went to see an attorney in Salem and was told the EWVD did have the power to use eminent domain.

“We were bluffed by their power,” Rue said, adding EVWD dug test holes on Jaquet’s property then didn’t level it back up.

Rue said the question they should have asked an attorney was does the district have eminent domain on property outside its boundaries? With that question now in play, attorneys for both sides have filed documents outlining why they think access to the property should be prevented or granted.

Victor Point’s lawyers filed papers stating the district wants access to the “properties in aid of the district’s ultimate goal of condemning defendants’ land for a reservoir. The reservoir would sole benefit the district’s members while taking land from some the district’s economic competitors.”

Both Jaquet and Rue said they don’t understand why one farmer who raises similar crops can come and take the land of another farmer.

“I see no reason why they need to take our land and use the taxpayers’ money to fund building a reservoir,” Jaquet said. “If I drive into Silverton and I like your house better than my, can I take it?”

Bielenberg said he has heard people say the EVWD is trying to put Victor Point farmers out of business.

“We have a pride of ownership but we are not trying to put them out of business,” Bielenberg said, adding Victor Point farmers were told they could join the EVWD.

What he wants people to understand is snow packs are decreasing, farmers can no longer continue the status quo of drilling wells and taking water from nearby streams. The state has mandated the district to find an alternative water source, he said. By building a reservoir “we are trying to catch water that is not being utilized.”

He pointed out members of the EVWD have contributed $1 million of their money over the years for studies.

Bielenberg takes offense that the district has been accused of hiding or not releasing information. “We don’t want to give the wrong information or incomplete information,” he said. “We won’t have the answers until we finish our studies.”

Both sides acknowledge there is a long list of steps that needs to be completed before a reservoir could be built – including state and federal requirements including fish and wildlife, and archaeological studies. EVWD is still waiting for a decision from Oregon Water Resource Department on the status of its permit to build the reservoir.

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