Access granted: Judge rules water district can run tests in Victor Point

January 2015 Posted in News

By Kristine Thomas 

Chalk up a victory for the East Valley Water District in its quest to build an irrigation reservoir on the property of Victor Point landowners.

On Jan. 5, Marion County Circuit Judge Claudia Burton ruled in favor of the East Valley Water District’s request to be granted permission to go onto the property of Victor Point landowners along Drift Creek, to conduct tests to determine if the land is suitable to build the 12,000 acre foot reservoir.

Because several Victor Point landowners denied EVWD access to their property, the EVWD board of directors took the matter to court, asking for a summary judgment against the defendants – Bruce Jaquet, Robert Qualey, Kathleen Jaquet, Cheri Perry-Harbour and Norbert Dominick.

During the 45 minute hearing attended by about 30 people, Michelle Rudd, the EVWD lawyer from law firm of Stoel Rives LLP, first presented an argument in favor of allowing the EVWD access to the property. That was followed by a rebuttal by David Rabbino, a lawyer from Tonko Torp who represents the Victor Point landowners. Burton listened to both sides before declaring she was going to rule from the bench rather than make the parties wait for a written response.

Burton confirmed irrigation districts, like the EVWD, can enter property to conduct field studies necessary to determine whether a property would be suitable as a water storage reservoir. In her ruling, Burton also stated she believes the law permits a water district to go outside its boundaries to take or condemn property.

“Since the 1800s, irrigation districts have had the authority to access property for this purpose,” reads the press release from the EVWD. “Although this statutory authority explicitly extends to ‘any land,’ certain owners of the reservoir site refused to allow access.”

The judge also stated she sees what is happening as a potential political disaster – one that must be looked at by the state legislature. As the law is currently written, she said, a water district in Medford could claim land on Mount Hood.

“This is something for the legislature to fix, not a trial court judge,” Burton said. “I see many political problems with this.”

Rabbino argued the way he read the law, the authority was limited to lands located within the water district’s boundaries. The argument was also made that if permission was given the EVWD could potentially take land from its competitors for its own economic benefit.

“The district still does not demonstrate that its members need any additional water or that it is necessary for the district to acquire the defendants’ properties to build a dam and reservoir, thus casting doubt on whether defendants’ property is try subject to condemnation by the district.

“The district’s statutory analysis is incomplete, ignores many of the terms in the relevant statutes and in the end demonstrates the district’s right to proceed is anything but clear,” Victor Point landowners’ attorney said.

The press release from the EVWD states, “The court disagreed and concluded ‘any’ included all lands – whether inside or outside of the EVWD’s boundary. The ruling allows EVWD to proceed with field investigations that have been stalled for months.”

The judge’s decision could be compared to purchasing a car. Just as a potential buyer is allowed to test drive and check the car before deciding whether or not to purchase it, the EVWD is allowed to conduct tests on the Victor Point land to determine if the site is feasible.

The EVWD has a long list of studies it must do including fish and wildlife surveys, archaeological studies, wetland investigations and seismic and geotechnical studies.

Janet Neuman, an attorney for the Victor Point landowners, said next is the water district’s attorneys will propose a list of conditions which must be followed for studies to be done on the property. For example, the order will state how much notification must be given to landowners before someone enters their property or what will happen if the tests cause property damage. Both sides must agree to the conditions. Once the judgment is entered outlining the rules for EVWD entering the property, work can begin.

Judge Burton said she does not anticipate this will be the last time the two sides see each other in the courtroom. There are still many legal avenues both sides could take.

If after all the tests are concluded and it is determined the site is suitable for a reservoir, the EVWD must decided whether to acquire the property.

“At this point, the EVWD’s goal is to work with the affected property owners to determine just compensation,” the district’s press release states.

“However, the court confirmed that EVWD has the authority to acquire the property through eminent domain if negotiations are ultimately unsuccessful. If the EVWD does acquire the property using eminent domain, the owners would receive just compensation and relocation benefits, as provided by law.”

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