Norden v. State

• Decision Date: 20 January 1999
• Citation: 158 Or.App. 127,973 P.2d 910
• Parties: Dorothy NORDEN, Respondent, v. STATE of Oregon, acting by and through its Water Resources Department; and Tony Justus, Umatilla County Watermaster, Appellants, and Umatilla County, a political subdivision of the State of Oregon, Defendant. CV 95-0002; CA A93331.
• Court: Oregon Court of Appeals

Page 910

973 P.2d 910

158 Or.App. 127

Dorothy NORDEN, Respondent, v. STATE of Oregon, acting by and through its Water Resources

Department; and Tony Justus, Umatilla County

Watermaster, Appellants,

and

Umatilla County, a political subdivision of the State of

Oregon, Defendant.

CV 95-0002; CA A93331.

Court of Appeals of Oregon.

Argued and Submitted on March 30, 1998.

Decided Jan. 20, 1999.

Richard D. Wasserman, Assistant Attorney General, argued the cause for appellants. With him on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge, ^* and WOLLHEIM, Judge.

LANDAU, P.J.

The Water Resources Department (department) issued an order requiring petitioner Norden to obtain a water rights permit to use water from a spring on her property. The principal basis for the order was the department's finding that the water from the spring, if not diverted, would run off Norden's property, thereby triggering the need for a permit. Norden sought judicial review of the department's order, contending that the department erred in finding that the water would run off of her property if not diverted. After hearing the evidence, the trial court concluded that Norden was correct and reversed the department's order, declared that Norden is entitled to use the water from the spring without first obtaining a water rights permit, and awarded her attorney fees. The department appeals, assigning error to the trial court's decision on the merits and to its award of attorney fees. We review to determine whether substantial evidence supports the department's findings. We conclude that the department's findings are supported by substantial evidence and reverse the trial court.

Norden owns land in Umatilla County that borders McKay Creek. A spring on the property flows down a rock-lined channel until part of it is diverted into an irrigation ditch and part is diverted into a pond. There is an older, unlined channel that runs from the two diversions towards McKay Creek. That channel is referred to as the "old channel." Where the old channel reaches McKay Creek, there is a gravel dike to prevent flooding. For ease of reference, we provide a map of the area, not drawn to scale.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1994, Tony Justus, a watermaster for the department, investigated the Norden property. Based on his observations, he concluded that water flows from the spring down the rock-lined channel that, if not for the diversions, the water would continue to flow into McKay Creek and eventually into the Umatilla River. Justus issued an order, dated November 14, 1994, informing Norden that she is not entitled to divert the water from the spring without first obtaining a water rights permit, because, under Oregon law, a landowner is entitled to use water without a permit only if the water would not flow off the property if undiverted.

Norden petitioned for judicial review of the November 14, 1994, order in circuit court as an order in other than a contested case. ORS 183.484. ¹ Both Norden and the department submitted evidence as to the nature of the property and the water flow from the spring on her property.

Norden testified that, when she bought the property in 1973, the water flowed through the channel to the pond but not into the creek. She testified that she believed that, if there were no irrigation ditch for the water to run through, the water would puddle and soak into the ground rather than run in a natural course to the creek.

William Porfily was the watermaster for Umatilla County from 1973 to 1979 and testified on Norden's behalf after visiting the property. He studied a 1910 adjudication map that does not show a spring discharging into the creek from Norden's property.

James Graham is an independent hydrogeologist who conducted a geological and hydrological study of Norden's spring. He noted that the 1910 map did not show the spring discharging into the creek but hypothesized that perhaps the water from the spring already was diverted at that time. He also observed that the land is very porous and water left to flow naturally would be absorbed.

Max Chaney testified for the department. He was born in 1913 and lived on the property from that point until the mid-1960s. He testified that his father moved the flow of the creek to be further from the house and that the channel, including the segment referred to as the old channel, is where the creek used to run. He remembered that the water from the spring flowed down the channel and into the creek. The family built a wheel house to pump water from the channel to generate electricity for the house.

Tony Justus testified for the department in his capacity as watermaster for the district covering Norden's property. He testified that he had visited the property several times before and after the order. On one occasion, he observed and photographed water that had overflowed from the irrigation ditch beyond the point of diversion. That water traveled in the old channel down to the dike next to the creek. He concluded from his studies and observations of the property that, but for the diversion ditch and the dike, the spring water would flow into the creek. He opined that the old channel could be a natural channel enhanced by a rock lining and stated that it is a well-defined channel. He measured the stream flow above the diversion point on August 15, 1994, at three-quarters of a cfs, or 337 gallons per minute. He measured again in the same area on July 17, 1995, for a reading of one and one-quarter cfs, or 561 gallons per minute, enough water to irrigate about 100 acres.

Justus's supervisor, Mike Ladd, is a regional manager for the department. He testified that he read and approved the November 14, 1994, order before its issuance. He testified that, as he flew above the property in 1991, he was surprised by the large pond and inquired about it to people in the regional office. He learned that Justus thought Norden needed a water rights permit, but that the then-watermaster, Mr. Debow, and a less experienced person in the office, Mr. Squibb, disagreed. Ladd testified that Debow and Squibb did not consider all of the factors that Justus had considered in evaluating the matter. The issue was not raised again until 1994, when Justus was the watermaster and undertook further investigation. He stated that Justus complied with applicable standards in taking the measurements. Ladd personally visited the property with Justus and examined the maps and aerial photographs. He said that he concurred in the conclusion that the water would reach the creek if allowed to flow naturally and that it would not puddle.

Thomas Paul is the department's supervisor of all regions. He visited the property and took elevations. He said that the ground was saturated and would not absorb water. He suggested that the channel is an improved natural channel and noted that his elevation measurements indicated that the old channel's path is the low point of the land where water would collect naturally. He further testified that, even if the improved channel were filled in, the water from the spring would form another channel and flow to the creek. In examining a 1960 aerial photograph, he detected substantial water flowing down the old channel and entering the creek. He visited the property on January 25, 1995, and observed the following:

"I tried to walk across it close to what we're calling the natural channel with the majority of the flow, and the water is deep and it's flowing. It's marshy, but it's still flowing."

On July 17, 1995, he saw water standing in the old channel, but did not see any flowing water, and hypothesized that the water came from the ground. He stated that the water in the old channel at both times was not enough to flow down to the dike. He concluded that the water would reach the creek if not diverted.

Barry Norris, who testified in his capacity as an engineer for the department, visited the site and reviewed Graham's report. When he visited the site he observed dampness, but no standing water in the old channel. Regarding his observations in contrast to the conclusions in Graham's report, he stated:

"Well, the report would lead you to believe that the spring water that is on the [Norden] property as well as creek property left to its own devices would simply sink into the ground and disappear. And we already know that the spring water is arising both on the Norden property and the Burton property in an area where it doesn't sink into the ground and simply disappear.

"It runs from that area northerly along a channel and then it winds to the west and through the improved property, where the house and lawn are, where it's not sinking into the ground and disappearing. And it reaches the diversion point just below the outhouse. And in that length we know that it is not sinking and disappearing.

"It's then--somebody's gone to a lot of work, Ms. Norden, to divert that flow either to the north and to what they call I guess the north field where she's irrigating with it. And it does disappear into the ground.

"Or they could divert it to the south through a channel, through a ditch, into the pond. And the pond is only--the westerly edge of the pond is probably only 30 feet or so from McKay Creek. And it's not disappearing into the ground through the reservoir area in the pond. So we know there's a large part of the property where it doesn't just simply flow into the ground and disappear.

"If the westerly side of the pond were removed, the flow would then flow through the ditch, into the pond area, and then back into McKay Creek. Another fact is that from that diversion point westerly out to McKay Creek there's an existing channel. Left to its own devices, the spring water, just based...