Opinion
6:20-cv-00345-MK
05-02-2022
MATTHEW JAMES SMITH; PAUL CALLEN; DARREN PARKER; LYNN WARNER; KATHY POWELL; ANN CORKERY; ALLAN D. CLACK; KEVIN CORKERY; and JBC RANCH PROPERTIES, LLC, Plaintiffs, v. TUMALO IRRIGATION DISTRICT; RONALD ALVARADO, in his official capacity as State Conservationist, United States Department of Agriculture; and NATURAL RESOURCES CONSERVATION SERVICE, a federal agency of the United States Department of Agriculture, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Plaintiffs brought this action pursuant to the National Environmental Policy Act (“NEPA”) and various state law claims, challenging an irrigation modernization initiative (the “Project”) in the Upper Deschutes Watershed located in Central Oregon. See Generally, Second Am. Compl., ECF No. 62. In November 2020, United States District Judge Michael McShane denied Plaintiffs' motion for a temporary restraining order, which Plaintiffs appealed to the Ninth Circuit. Smith v. Tumalo Irrigation Dist., 500 F.Supp.3d 1148, 1159 (D. Or. 2020) (“Tumalo I”); see also ECF Nos. 50, 51. The Ninth Circuit denied Plaintiffs' motion for a preliminary injunction pending appeal and dismissed Plaintiffs' appeal as moot because “the irrigation project along the lateral specified in Plaintiffs' preliminary injunction motion has been completed[.]” Smith v. Nat. Res. Conservation Serv., No. 20-36057, 2021 WL 1529107, at *1 (9th Cir. Apr. 13, 2021). That court, however, “express[ed] no opinion on the merits” of Plaintiffs' claims. Id. In July 2021, Plaintiffs filed a Second Amended Complaint, alleging, inter alia, that Defendant Tumalo Irrigation District impermissibly expanded the scope of its irrigation right-of-way and caused a private nuisance. Id at 7-8. The parties filed cross-motions for summary judgment and the Court heard oral argument in January 2022. See ECF Nos. 67, 69, 90. For the reasons that follow, Plaintiffs' motion for partial summary judgment should be DENIED; Defendant's motion for partial summary judgment should be GRANTED.
BACKGROUND
This lawsuit hinges on the scope of an easement in the Deschutes Basin area. Specifically, the parties' dispute centers on irrigation canals and laterals operating within rights-of-way-or easements-granted pursuant to the Carey Desert Land Act of 1894 (“Carey Act”). 43 U.S.C. § 641. Congress enacted the Carey Act “[t]o aide the public-land States in the reclamation of the desert lands therein,” and empowered the Secretary of the Interior to “donate, grant, and patent to the State. . . such desert lands . . . to be irrigated, reclaimed, [and] occupied ....” Id.
The scope of such easements is governed by the Act of March 3, 1891, as amended, 43 U.S.C. § 946 (“Right of Way Act”), which provides in relevant part:
The right of way through the public lands and reservations of the United States is granted to any canal ditch company, irrigation or drainage district formed for the purpose of irrigation or drainage, and duly organized under the laws of any State or Territory . . . to the extent of the ground occupied by the water of any reservoir and of any canals and laterals and fifty feet on each side of the marginal limits thereof, and . . . such additional rights of way as the Secretary of the Interior may deem necessary for the proper operation and maintenance of said reservoirs, canals, and laterals; also the right to take from the public lands adjacent to the line of the canal or ditch,
material, earth, and stone necessary for the construction of such canal or ditch: Provided, That . . . the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.Right of Way Act, c. 561, § 18, 26 Stat. 1101, codified as amended, 43 U.S.C. § 946.
Congress repealed the Right of Way Act in 1976 with respect to public land administered by the Bureau of Land Management and land in the National Forest system. Federal Land Policy and Management Act of 1976, Pub.L. 94-579, § 706(a), 90 Stat. 2793 (codified as 43 U.S.C. §§ 17011784). The 1976 Act established new guidelines for grants of rights of way and gave the Secretary of the Interior authority to issue grants on BLM land and the Secretary of Agriculture similar authority over National Forest land. Pub.L. 94-579, § 501(a), 90 Stat. 2776 (codified as 43 U.S.C. § 1761). The 1976 Act specified, however, that “[n]othing in this title shall have the effect of terminating any right-of-way . . . heretofore issued.” Pub.L. 94-579, § 509(a), 90 Stat. 2781 (codified as 43 U.S.C. § 1769).
Defendant manages 80 miles of piped and open canals providing irrigation water to approximately 687 families on 7,416 acres of land pursuant to easements granted by the Right of Way Act. Schull Decl. ¶ 6, ECF No. 71. When available, irrigation water flowed through the open canals that are the subject of this lawsuit between March and October. Id. ¶ 8. Historically, the open canals lost approximately 50% of the water diverted from rivers and streams through seepage and evaporation. Id. ¶ 9. Because of that water loss, Defendants implemented improvements to their water delivery system, including the piping Project at issue here. Id. ¶ 23; see also Crew Decl. ¶ 5, ECF No. 72; Sherlock Decl. Ex. 1 Final Tumalo Irrigation District Modernization Project Environmental Assessment, ECF No. 67-2. “The Project as currently planned, replaces [Defendant's] current system of open-waterway canals and laterals with pressurized piping buried underground.” Pl.'s Mem. 2 (citations omitted). Plaintiffs own property subject to easements granted pursuant to the Right of Way Act. Second Am. Compl. ¶ 12.
DISCUSSION
Plaintiffs move for summary judgment arguing that installation of pipes under the existing canals and laterals violates the terms of Defendant's easement under Oregon law. See generally Pl.'s Mem. Support of Mot. Partial Summ. J., ECF No. 67-1 (“Pl.'s Mem.”). Essentially, Plaintiff contends that because the Project requires placing pipes beneath the bottom of the beds of the currently existing canals and laterals, the Project exceeds the scope of the easement. Id. at 3.
Defendant also moves for summary judgment on all of Plaintiffs' claims against it arguing the right of way authorizes it to (1) “replace open irrigation canals with system improved piping”; (2) “excavate and place system improvement piping below the current bed of the open canal”; and (3) “place system improved piping and material covering the piping above the current height of the marginal limits of the open canal banks as needed.” Def.'s Mot. Partial Summ. J. 3, ECF No. 69 (“Def.'s Mot.”).
I. Preliminary Matter
Before reaching the substantive merits of the parties cross-motions for summary judgment, the Court must address one preliminary issue: the nature of Defendant's property interest. Defendant asserts that Plaintiffs' claims fail as a matter of federal law and that it holds limited fee in the canals and laterals, as opposed to an easement. Def.'s Mot. 14-16. Defendant relies on language from the Supreme Court's decision in Kern River Co. v. United States, which discussed the nature of the property interest granted by the Right of Way Act:
The right of way intended by the act was neither a mere easement nor a fee simple absolute, but a limited fee on an implied condition of reverter in the event the grantee ceased to use or retain the land for the purpose indicated in the act.257 U.S. 147, 152 (1921) (citing Rio Grande W. Ry. Co. v. Stringham, 239 U.S. 44, 47 (1915)).
In support of its holding that the Right of Way Act granted a limited fee, the Kern River court cited Rio Grande W. Ry. Co. v. Stringham, 239 U.S. 44, 47 (1915), “in which essentially identical language in the [General Railroad Right of Way Act of 1875 (“1875 Act”)] granting rights of way to railroads was construed as conveying a limited fee.” Bijou Irr. Dist. v. EmpireClub, 804 P.2d 175, 181 (Colo. 1991) (citation omitted).
Compare Right of Way Act, ch. 561, § 18, 26 Stat. 1101 (codified as amended at 43 U.S.C. § 946) (granting right of way as relevant here “to the extent of the ground occupied by the water of any reservoir and of any canals and laterals and fifty feet on each side of the marginal limits thereof”), with 1875 Act, c. 152, § 1, 18 Stat. 482 (codified as amended 43 U.S.C. § 934) (granting right of way as relevant here “to the extent of one hundred feet on each side of the central line of said road”).
Two decades later, however, the Supreme Court declined to follow Stringham holding instead that the 1875 Act “clearly grants only an easement, and not a fee.” Great Norther R. Co.v. United States, 315 U.S. 262, 271 (1942). This was so, the Court reasoned, for three reasons. First, the Court found the provision of the 1875 Act, which provided that “all such lands over which such right of way shall pass shall be disposed of subject to such right of way,” was “wholly inconsistent” with the grant of a fee interest. Great Northern, 315 U.S. at 271. The Court endorsed the Ninth Circuit's observation below that “[a]pter words to indicate the intent to convey an easement would be difficult to find.” Id. (citing MacDonald v. United States, 119 F.2d 821, 825 (9th Cir. 1941)).
The Right of Way Act also contains language identical to the relevant provisions of the 1875 Act. Compare Right of Way Act, ch. 561, § 19, 26 Stat. 1102 (codified as amended at 43 U.S.C. § 947) (“all such lands over which such rights of way shall pass shall be disposed of subject to such right of way”), with 1875 Act, c. 152, § 1, 18 Stat. 482 (codified as amended 43 U.S.C. § 937) (“all such lands over which such right of way shall pass shall be disposed of subject to such right of way”).
Second, the Court highlighted the “sharp change in Congressional policy” away from outright grants of public land to railroads in 1871. Id. at 274-75. Third, the Court noted that “the contemporaneous administrative interpretation,” which interpreted the Act to grant an easement, coupled with Congress' subsequent decision to use identical language when passing the Right of Way Act three years later, supported a construction that found that the property right obtained through the Act was an easement. Id. at 275. Finally, the Court distinguished Stringham on the basis that it relied on “cases arising under the land-grant acts passed prior to 1871” and noted that when Stringham was decided in 1915, Congress' change in policy was not “brought to the Court's attention.” Id. at 279.
For Defendant's part, it acknowledges that Kern River's reliance on Stringham has led at least one court to conclude that “Great Northern effectively overruled Stringham[.]” Bijou, 804 P.2d at 182. However, Defendant asserts Great Northern is distinguishable because that case involved statutory schemes for granting rights of ways to railroad companies, not for irrigation purposes.
The Court is not persuaded. Kern River's reliance on Stringham for the proposition that the property interest acquired under the Right of Way Act is “a limited fee” no longer remains good law in the wake of the Supreme Court's decision in Great Northern. In other words, to the extent Defendant relies on Kern River, the Court declines to follow that decision's reasoning given Great Northern's treatment of the precedent upon which Kern River relied.
The Court further concludes, based on the mirroring statutory language, that Congress intended to grant the same type of property interest under both acts. Accordingly, the property interest acquired pursuant to Right of Way Act is the same interest acquired under the 1875 Act: an easement. See Marvin M. Brandt Revocable Tr. v. United States, 572 U.S. 93, 104-05 (2014) (holding that the property interest acquired pursuant to the 1875 Act is an easement); Smith v.City of Jackson, 544 U.S. 228, 233 (2005) (“[W]hen Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.”) (plurality opinion); see also United States v. Novak, 476 F.3d 1041, 1051 (9th Cir. 2007) (en banc) (“courts generally interpret similar language in different statutes in a like manner when the two statutes address a similar subject matter”).
In sum, the property interest Defendant possesses is an easement. The scope of that easement is governed by Oregon law. See Tumalo 1, 500 F.Supp. at 1158-59 (applying Oregon law to Plaintiffs' state law claims); Swalley Irrigation Dist. v. Alvis, No. 04-cv-01721-AA, 2006 WL 508312, at *2 (D. Or. Mar. 1, 2006) (analyzing scope of easement granted pursuant to the Right of Way Act under Oregon law).
II. Scope of the Easement
The parties' dispute largely hinges on the interpretation of the following language:
The right of way through the public lands and reservations of the United States is granted to any canal ditch company, irrigation or drainage district formed for the purpose of irrigation or drainage, . . . to the extent of the ground occupied by the water of any reservoir and of any canals and laterals and fifty feet on each side of the marginal limits thereof ....43 U.S.C. § 946.
The interpretation of an express easement is a question of law. Farrar v. City of Newberg, 316 Or.App. 698, 700 (2021). “In construing an easement, [a court's] fundamental task is to discern the nature and scope of the easement's purpose and to give effect to that purpose in a practical manner.” Watson v. Banducci, 158 Or.App. 223, 230 (1999). “In giving effect to an easement's purpose, general principles of reasonableness control.” Id. at 231. “Whether proposed changes are reasonably necessary to accomplish the purpose of the easement is a fact-based inquiry and must be determined from the circumstances of each case.” Farrar, 316 Or.App. at 700.
When interpreting an express easement, the court must “look first to the words of the easement, viewing them in the context of the entire document.” Kell v. Oppenlander, 154 Or.App. 422, 426 (1998). The document also must be considered in the context of “the circumstances under which it was made, including the situation of the subject and of the parties,” so that “the judge is placed in the position of those whose language the judge is interpreting.” Miller v. Jones, 256 Or.App. 392, 397 (2013) (citation omitted). If the words of the easement in context “clearly express the easement's purpose, [the] analysis ends.” Watson, 158 Or.App. at 230. If ambiguity remains, courts consider “extrinsic evidence of the original parties' intent.” Id.If ambiguity still remains, courts employ relevant maxims of construction as a last resort. Cascade v. Georgia-Pacific, 259 Or.App. 348, 366 (2013), rev. den., 355 Or. 142 (2014).
Plaintiff argues that the language in the easement is unambiguous and limits the easement's geographic scope. That geographic scope, Plaintiff asserts, is fixed “to the extent of the ground occupied by the water of any reservoir and of any canals and laterals.” Pl.'s Mem. 89 (citation omitted). Plaintiff contends that “[t]here is only one possible reasonable way to read this language: the easement is limited to the base depth of the water in the canals and laterals.” Id. at 9; see also Pl.'s Resp. 7 (“the ground occupied by the water . . . even including the 50-feet language means only one thing: the ground occupied by the water plus 50 feet on either side.”) (emphasis added), ECF No. 84.
The Court agrees that the language of the easement is unambiguous. Plaintiffs' assertion that the only possible interpretation of the easement is to limit the easement to the base depth of the canals, however, does not follow. Critically, Plaintiffs' interpretation effectively replaces the word “each” with “either” in attempt to limit the geographic scope of the easement to the water's horizontal margins. Compare Webster's Third New Int'l Dictionary 713 (defining “each” as used here as “being one of two or more distinct individuals having a similar relation and often constituting an aggregate”) (emphasis added), with id. at 728 (defining “either” as used here as “being the and other of two”) (emphasis added); see also Kell v. Oppenlander, 154 Or.App. 422, 427 (1998) (using Webster's Third New Int'l Dictionary to give meaning to easement language).
Plaintiffs' interpretation thus overlooks that the “fifty feet on each side” extends to all sides of the water horizontally and vertically. In other words, the easement permits Defendant to place piping under the current canal beds because the easement extends fifty feet from the “bottom side” of the current canals. For the same reasons, Defendant may place piping above the current banks of the canals provided they do not exceed the fifty feet limitation contained in the easement's express language.
Plaintiffs' reliance on Defendant's expert's use of the word “either” is not relevant to the Court's interpretation of the terms of easement.
Plaintiffs' concern that not adopting their preferred construction of the easement would allow Defendant to “relocate its own easement anywhere on of the subject properties” is misplaced. The “fifty feet on each side” rights of way are limited to the original locations of the canals or laterals approved by the Secretary of the Interior at the time of the grant.
In sum, the Court should conclude that the easement's terms authorizes Defendant to: (1) replace open irrigation canals with system improvement piping; (2) excavate and place system improvement piping below the current canal bed; and (3) place system improvement piping and material covering the piping above the current height of the marginal limits of the open canal banks. However, any below ground or above ground irrigation system improvements may not exceed beyond 50 feet from the original canal base.
III. State Law Claims
A. Improper Expansion of Easement
Plaintiff asserts that issues of fact preclude a grant of summary judgment as to their third claim. The Court disagrees. Pl.'s Resp. 8-12, ECF No. 84. As Judge McShane noted in his opinion denying Plaintiffs' motion for a temporary restraining order and concluding that Plaintiffs were unlikely to prevail on the merits of their state law claims:
Without a restriction, ordinarily a grantee of an easement is not restricted to the methods of use which were current at the time of the grant, but may reasonably change that use over time as long as the burden on the servient estate is not increased. Put simply, well-established principles of property law allow modification of uses under an easement, so long as such changes are not contrary to the purpose of the easement and do not increase the burden on the servient property.Tumalo I, 500 F.Supp.3d at 1160 (emphasis added; citations omitted; and bracketing removed).
Placing irrigation pipes below ground is a reasonable modification that falls squarely within the easement's purpose. See, e.g., 43 U.S.C. § 946 (granting rights of way “for the purpose of irrigation or drainage.... ”); Tumalo I, 500 F.Supp.3d at 1159 (“Based on a plain reading of the statute, the Court finds that the HDPE piping is reasonably necessary ....”); Swalley Irrigation Dist. v. Alvis, No. 04-cv-1721-AA, 2006 WL 508312, at *2 (D. Or. Mar. 1, 2006) (“While the language of the Act references irrigation canals, ditches and laterals, the Act expressly grants rights of way ‘for irrigation purposes' with no restriction on the method used for such purposes.”). Accordingly, to the extent Defendant's actions modify the easement, such modifications are reasonable.
Plaintiffs assert they will be unnecessarily burdened because the value of their property will be diminished. See Pl.'s Resp. 8. However, the removal of an unintentional benefit to the servient estate holder is insufficient to establish an increase in burden. Cf. Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 681-82 (2011) (“[A]s the holder of the ditch right, the dominant estate owner may make changes to the easement so long as they do not increase the burden on the servient land, even if those changes remove an incidental benefit to the servient estate holder.”) overruled on other grounds by City of Osburn v. Randel, 152 Idaho 906 (2012); see also Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213 (1946); L.S. Tellier, Annotation, Right of owner of easement to alter its use in such a way as to deprive servient estate of an incidental benefit, 172 A.L.R. 193 (2009). On this record, any purported devaluing of Plaintiffs' properties as a result of the unintentional benefits received from the existence of the canals in the first instance is not sufficient to establish an increase in burden.
As such, the Court should find that Plaintiffs' third claim-“Improper Expansion of Easement”-fails as a matter of law.
B. Private Nuisance
“A private nuisance is an unreasonable non-trespassory interference with another's private use and enjoyment of land.” Mark v. Dept. of Fish and Wildlife, 158 Or.App. 355, 360, rev. den., 329 Or. 479 (1999). “A nuisance is not actionable, unless its interference with the use and enjoyment of property is both ‘substantial and unreasonable.'” Daniels v. Johnson, 306 Or.App. 252, 255 (2020) (quoting Smith v. Wallowa County, 145 Or.App. 341, 346 (1996). “Whether a certain use of property amounts to actionable nuisance ‘depends on the individual facts of a particular case.'” (quoting Jewett v. Deerhorn Enterprises, Inc., 281 Or. 469, 473 (1978).
Here, assuming without deciding that Plaintiffs could establish that Defendant's actions substantially interfered with the use and enjoyment of their properties, for the reasons discussed above, they cannot establish that Defendant's piping of open canals to conserve water was unreasonable. In other words, “[l]egal activity by the dominant estate, even if it interferes with or impairs an owner's personal enjoyment, cannot support a private nuisance claim.” Tumalo I, 500 F.Supp.3d at 1158 (citation omitted).
As such, Plaintiffs' private nuisance claim should similarly be dismissed.
RECOMMENDATION
For the reasons above, Plaintiffs' motion for partial summary judgment (ECF No. 67) should be DENIED; Defendant's motion for partial summary judgment (ECF No. 69) should be GRANTED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).