Farm Bureau asks high court to hear 2 cases

Mitch Lies
Capital Press

November 16, 2007

SALEM - The Oregon Farm Bureau's Legal Advocacy Program is requesting the state Supreme Court hear two cases the program believes could have far-reaching impacts on agricultural practices.

The program has contracted with Salem lawyer Joe Hobson to file a friend of the court brief in what is known as the Fort Vannoy case. Parties in the case dispute whether a landowner needs an irrigation district's approval to transfer a point of diversion from inside an irrigation district to outside the district.

The Oregon Court of Appeals in July overturned a Water Resources Commission decision that the landowner did not need district approval.

Tim Bernasek, general counsel for the Oregon Farm Bureau, said the bureau got involved because it believes water rights go with the land.

"That's a long-standing understanding of Oregon water law," Bernasek said.

Also in recent weeks, the program filed a friend of the court brief asking the Oregon high court to hear a case involving an interpretation of state removal-fill law.

In the case, the Oregon Court of Appeals overturned a lower court ruling that cleared a landowner from removal-fill permit requirements based on an agricultural exemption.

The Farm Bureau's Legal Advocacy Program contends Oregon law clears a landowner from removal-fill permit requirements if conducting activity normally associated with agriculture.

The appeals court, however, determined state law required Southern Oregon winegrape grower Bob Kerivan to obtain a permit to move more than 50 cubic yards of material from Sucker Creek, regardless of whether the activity was associated with agriculture.

The state argued before the appeals court the intent of the legislation that created the law was to require a permit if moving more than 50 cubic yards on a salmon-bearing stream, especially given that the agricultural exception for non-fish-bearing streams is limited to 50 cubic yards.

The Bureau's Legal Advocacy Program contends the appeals court misinterpreted the statute - that the agricultural exception is not limited to 50 cubic yards for fish-bearing or non-fish-bearing streams.

"There are very important exemptions and exceptions for agriculture that we believe the Court of Appeals missed," Bernasek said. "We think it is important to remind the court how we view the statutory structure to function."

Kerivan was cited in 1998 for adding riprap to the banks of Sucker Creek to protect his vineyard from flooding.

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