Fort Vannoy Irrigation District v. Water Resources Commission The Oregon Supreme Court has accepted Fort Vannoy Irrigation District v. Water Resources Commission case for review of the Oregon Court of Appeals decision. Oral arguments are scheduled for May 13, 2008. The Oregon Court of Appeals has ruled that when a water right certificate is issued in the name of an irrigation district, the irrigation district itself is the only party that may request a transfer. The Court of Appeals decision in Fort Vannoy Irrigation District v. Water Resources Commission overturns an order from the Water Resources Commission stating that a landowner within an irrigation district may transfer an appurtenant water right without the irrigation district’s consent. The Court of Appeals’ decision arises from a 2002 dispute between the Fort Vannoy Irrigation District and a district landowner who submitted an application to transfer the point of diversion associated with several water rights appurtenant to his property. Two of the water rights appurtenant to the landowner’s property were certificated in the name of the irrigation district. The irrigation district objected to the proposed transfer and initiated a contested case proceeding in which it argued that the landowner was required to obtain permission from the irrigation district in order to effectuate the transfer. The district asserted in its opening brief that it was a co-owner of the water rights the landowner sought to transfer and that no irrigator should be permitted to transfer a water right without the district’s involvement. The district’s reasoning was that a transfer could injure fellow water users and that it is a district’s “prerogative as well as obligation to determine whether a proposed transfer is beneficial or detrimental to all the water users of the district.” The district’s brief concluded by stating “The necessary relationship between the District and the Applicant is one of shared ownership…The District’s role is not simply one who is entitled to notice and approval of the proposed transfer, the District is an owner whose water right is being transferred.” The Water Resources Department took part in the contested case proceeding and filed an opening brief, which strongly objected to the irrigation district’s claims of an ownership interest. In its brief, the Water Resources Department argued that that the landowner did not need to obtain the permission of the Fort Vannoy Irrigation District to transfer his point of diversion stating: “claims of injury and an ownership interest that gives the district veto power over the proposed transfer are not well taken.” Subsequently, after reviewing the irrigation district’s opening brief, the Water Resource Department filed a responsive brief, which reiterated that irrigation districts do not own the water rights appurtenant to the property of district landowners. The responsive brief also stated that the cases the district had cited in support of its “co-ownership” claims did not, as a matter of law, support the co-ownership propositions for which they had been cited. The administrative law judge hearing the matter agreed and issued a final order concluding that the irrigation district was not the owner or “holder” of the water rights referred to in ORS 540.520, stating: “As water rights are, in the West, essentially defeasible usufructuary rights attached to specifically identified land rather than personal rights which may be exercised at any location and only by the individual whose name is on the certificate evidencing the right, it is logical to conclude that the “holder” of the right referred to in ORS 540.520 is the owner of the land to which the water right is appurtenant.” Ultimately, the Water Resources Commission agreed with the hearings officer and issued a final order dismissing the irrigation district’s protest and approving the landowner’s transfer application. The Fort Vannoy Irrigation District subsequently filed suit challenging the Commission’s order. In early July, the Court of Appeals rendered its decision overturning the Water Resources Commission’s final order. The Court of Appeals ruling that irrigation districts hold or own water rights that are certificated in a district’s name – and that district landowners do not - will impact water users across the state. Throughout Oregon statute, the terms “holder” and “owner” are used to identify the party that is legally entitled to exercise control over a water right. One of the most fundamental rules of statutory construction is that when a word or phrase is used repeatedly in the same statute it is presumed to have the same meaning throughout, absent clear indication of a contrary intent. As the term “holder” is used repeatedly throughout Oregon’s water law statutes, the court’s interpretation of the term “holder” in this particular case will determine who may exercise control over a water right in a broad range of contexts. Water for Life has submitted the following Amicus Curiae Brief to the Oregon Supreme Court:
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