Stripping Due Process...

Dennis Linthicum

Stripping Due Process...

When a calf dies at birth, a rancher might decide to “graft” a substitute calf so that the mother cow can provide nurture to the substitute. The most reliable form of grafting happens when the hide of the dead calf is put onto the substitute calf. The cow knows the smell of her own calf (even if it was dead at birth) and this substitution can trick the cow into accepting the substitute as her own.

In the Oregon legislature, when a bill dies, something else can get grafted into its hide. Around the capital this is known as a “gut and stuff.” You might think of it like putting a wolf into the sheep’s clothing.

Last week an extremely disturbing water bill was dropped into a Senate Judiciary Committee placeholder bill with a “relating to courts” clause. This water bill fits neatly into this category because parties affected by a final order during a regulatory water action can appeal to the circuit court, or the Court of Appeals. The court has the authority to affirm, reverse, or modify the original order.

The Bill (977-1), would eliminate an irrigator’s ability to secure a “stay,” or pause, in the action ordered by the regulating agency as prescribed in ORS 536.075 (5). The opportunity for a “stay” provides water user protection and due process while being a safety valve against frivolous, invalid, futile, or erroneous final orders. The rules, in place since the mid-80’s, recognize that orders may have been secured with poorly-developed evidentiary findings, inconsistent applicability, or for nefarious purposes.

Wolf in Sheep's Clothing

The sub-section that would be stripped from a right holder’s toolbox is:

ORS 536.075 (5) The filing of a petition in either the circuit court or the Court of Appeals shall stay enforcement of the order of the commission or the department unless the commission or the department determines that substantial public harm will result if the order is stayed. If the commission or the department denies the stay, the denial shall be in writing and shall specifically state the substantial public harm that will result from allowing the stay.

Destroying this part of procedural due process would be devastating to water right holders who are under a curtailment action during or mid-way through an irrigation season.

For background, Oregon water rights are regulated in accordance with the doctrine of prior appropriation. This means that in times of water shortages, senior water right holders are entitled to have their rights fully satisfied before junior users are entitled to their water rights. Please note, both senior and secondary water rights are vested property rights that cannot be altered without due process of law.

When a secondary user is curtailed, due process consists of, first, a written notice, and, second, a meaningful opportunity to be heard before a neutral body prior to being deprived of that vested property interest.

The existing statute ensures that in situations where there is significant uncertainty as to whether a junior user is being erroneously curtailed, Oregon Water Resource Department (OWRD) shut-off orders are stayed until such time as the junior user has the opportunity to be heard in court. The stay action is extremely important because it allows irrigators to continue their agricultural business operations while awaiting more thorough research.

Many times, curtailment orders across the state are inappropriately issued because of bad science, misinformation or stratagems approaching malfeasance. Last season, nearly 140 groundwater wells were curtailed due to OWRD’s faulty modeling and unjustified regulation. In turn, nearly a dozen of these agricultural operations filed appeals and were granted the stay. OWRD eventually agreed to settle and pay irrigators’ attorney fees and court costs and the irrigators were allowed to continue their operations.

In these due process cases, and many others, the automatic stay granted under ORS 536.075 (5) was justified because the agency took arbitrary positions that were contrary to either the facts, or the law, or both.

This happens again and again, all over the state. 

The importance of the statute is that it ensures irrigators’ rights are preserved before their water use is needlessly curtailed and their property right unjustly taken.

Statewide, as in the examples cited, impertinent arguments could stop any agricultural enterprise dead in its tracks. This action would be economically devastating to the junior water right holder, harm private property rights, the local community and public good, while tipping the balance of unmitigated power. The needless removal of this statute would enhance the opportunity for future bureaucratic or process corruption while weakening the overall rule of law.

Our nation’s founders were familiar with the subject of corruption. They took for granted that the dominant motive of human behavior was self-interest, and that this drive found its “most extreme political expression in an insatiable lust for power.” In recognizing this they devised a system of checks, balances and procedural due processes that could successfully thwart “the predominant thirst of dominion which has invariably and uniformly prompted rulers to abuse their power.

Please write to your legislators today! (Click here to submit testimony)

Oppose SB 977-1 because it would allow the default taking of a citizen’s property right while stripping away the property holder’s access to effectual redress by creating a lop-sided legal process.

The hearing is scheduled for Monday, April 8, 2019, at 8:00AM.

If you are in the Salem area or are nearby, please consider coming in to testify.

Remember, “If you are negligent or inattentive, the ambitious and despotic will entrap you in their toils, and bind you with the cord of power from which you, and your posterity, may never be freed."   – Cato I, New York Journal, September 27, 1787

If we don't stand for rural Oregon values and common sense – No one will!

Senator Dennis Linthicum signature

Dennis Linthicum
Oregon State Senate 28

Capitol Phone: 503-986-1728
Capitol Address: 900 Court St. NE, S-305, Salem, Oregon 97301