December 16, 2001 11:00 pm
PRECIOUS WATER: Brian Lackey owns a 10-acre parcel and uses water from Little Creek to irrigate pasture and crops. (The Observer/PHIL BULLOCK).
PRECIOUS WATER: Brian Lackey owns a 10-acre parcel and uses water from Little Creek to irrigate pasture and crops. (The Observer/PHIL BULLOCK).

By Alice Perry Linker

Observer Staff Writer

The paper trail that accumulated during a Union County conflict over irrigation is probably deeper than the creek.

Fourteen landowners disputing a transfer of water rights in Little Creek have filed an appeal to the states Water Resources Commission and have instigated circuit court legal actions, including a lawsuit against the state to prevent the transfer.

The story began in the fall of 1997 with the sale of about 90 acres of the Zaug property along the creek near Union to developer and contractor Michael Becker, who divided the land into 10-acre plots. The property possesses irrigation rights dating to 1863, among the oldest water right priorities on that system, according to Shad Hatton, the county watermaster.

When he bought the land, Becker retained the water rights. In an interview earlier this week, he said that he decided to sell the water rights along the creek to one party instead of selling them piecemeal with each 10-acre parcel and adding 10 water users to the system.

He found an interested buyer in the Oregon Water Trust, which purchases in-stream rights to be held in trust by the state.

Andrew Purkey, executive director, said the trust has worked with agricultural interests in several parts of the state, negotiating with water rights holders to use the water to help fish and improve water quality. The trust is negotiating for the rights along about three miles of Little Creek to provide passage for steelhead.

Our respect for irrigated agriculture is at the core of the mission of the Oregon Water Trust, Purkey said. We negotiated an agreement with Mike Becker to buy in-stream water rights.

At the time of the transfer, Becker said he understood that the Oregon Department of Environmental Quality had concerns about irrigation ditches so close to individual septic systems. He said he also felt that transferring the water rights would help other water users along the creek.

We could have added 10 more water users, he said. We do a lot of work with fish and wildlife, and I didnt want to lose the water out of that stream.

Little Creek Water Users

contest transfer of rights

Fourteen other irrigators with separate water rights along Little Creek did not agree with Beckers viewpoint.

Organized into the Little Creek Water Users, they contested the transfer with the Oregon Water Resources Department and filed a lawsuit in Union County Circuit Court to stop the transfer. The two actions are proceeding along parallel tracks, but the lawsuit doesnt depend on the water resources decision, said Tim Sheehy, a spokesman for the group.

The defendants named in the lawsuit are Becker, the Oregon Water Trust, the Oregon Water Resources Commission and Paul Cleary, executive director of the state commission. The state attorney generals office is legal counsel for the water resources commission.

The most recent action is a motion filed Nov. 14 in circuit court by the state to dismiss the suit, claiming that movants (the irrigators) have not alleged they will suffer substantial and irreparable harm as a result of any action. ... The motion pleads merely a prospective and contingent harm that might result.

The court has set a hearing on the motion for 9 a.m. Jan. 10.

About the only thing all parties agree on is that there isnt much water in Little Creek.

Its not called Little Creek for no reason, said watermaster Hatton. Some years the stream cant satisfy even the oldest of water rights.

The year when water rights were originally granted is the key to water use. Senior water rights holders, such as the 1863 right on the old Zaug farm, take priority over junior water rights holders.

Senior water rights

holders take precedence

When theres a shortage and senior water rights holders request use, they are entitled to it at the expense of junior water rights holders, Hatton said.

Oregon law, however, says that in-stream rights shall not take away or impair any permitted, certified or decreed right.

The water trusts Purkey said that the trust cannot create rights that are determined to cause injury to other water users. If there is injury, either the application wont be approved or therell be some recommendation that the proposal be modified to account for that injury.

We take that very seriously, he said.

Oregons Water Resources Department determines whether other users will be injured by the transfer. The department will have a hearing on the trusts application for transfer, but no date has been set.

Sheehy and the other complainants fear that the state will not consider their loss in its decision. He said the complainants concerns rest partly with the loss of creek water late in the summer, when most farmers have the greatest need for irrigation.

Its really a shame to ruin an old farm, Sheehy said about the Zaug property division. They should use the water in the same way it was used on the farm; then other irrigation patterns arent disrupted.

The Little Creek water users say that the Oregon Water Trust will keep all of its water in the stream, instead of transferring to more junior rights holders.

Water users: Not enough water to serve all rights

If they use every last drop, theres not enough water in Little Creek to serve all the rights, Sheehy said. When a farmer decides not to use his water, somebody else can use it.

Sheehy said irrigators enter into rotation agreements with other farmers.

The water trust basically uses all the water they can under the rights. They arent going to rotate with anybody. They wont irrigate early in the year when water is plentiful.

Sheehy believes the trusts intent is to reduce irrigation as much as they can with this one water right. Contrast this with the farmer who cooperates and doesnt use anywhere near his allocated amount. Were trying to preserve the rotation.

Rancher John Wilson of North Powder, a member of the water trust board, said he is not familiar with the Little Creek situation, but he said he understands the trusts philosophy.

I would never have been on a board of an environmental organization, but I believe the Oregon Water Trust is a conservation organization. They dont believe in takings. Becker cant sell any water rights other than the rights he owns.

Ive always subscribed to the free market theory, and thats what the Oregon Water Trust believes in, he said.

Theres a philosophical problem with water being put in the stream instead of being used for agriculture. Thats a different question than whether a property owner has the right to sell his property.

Legal actions have piled complexity upon complexity. Another action challenged Beckers procedure in transferring rights, claiming that landowners were not properly notified. Several owners within the 90-acre subdivision had water rights restored.

A Court of Appeals ruling earlier this year overturned a lower court decision that restored some individual rights, and earlier this month Becker sued the Little Creek Water Users Association for $16,292.36 to cover attorney fees.

Some of the people who own 10-acre parcels, such as Brian Lackey, use the water to irrigate pasture and crops. Lackey owns a small herd of sheep.

Hes still in limbo, Sheehy said.

The irrigators who have joined the fight to prevent the rights transfer are Robert and Dona Sheehy, Robert L. and Patricia Sheehy, Lyman E. Baker, Jack and Karen Baremore, William and Camille Hawkins, Jack and Gloria Kleck, Rodney Miller, Robert Linton and Nellie Mudd, Sarah Rankin, Lloyd and Linda Reagan, Steve Schlegel, George and Darlene Simonis, Evan and JoAnn Waite, and Duane and Pauline Weise.