Thursday, August 02, 2012

Too Much Government

I'm sure there are some who, because I'm against this, will reflexively support government here, but I just have to believe they're not thinking this through.  How can anyone say government is acting reasonably and rationally here?
An Oregon man is expected to spend a month in jail after being convicted on nine misdemeanor charges related to his illegal use of…water. Gary Harrington was sentenced after being found guilty of illegally collecting water on his own rural property.

Harrington, of Eagle Point, Oregon, has been fighting for his right to do what he wishes with water since 2002. Now more than a decade after he first defended himself over allegations that the man-made ponds on his 170 acres of land violated local law, Harrington has been sentenced to 30 days behind bars and fined over $1,500.

Authorities say that Harrington broke the law by collecting natural rain water and snow runoff that landed on his property. Officials with the Medford Water Commission contested that the water on Harrington’s property, whether or not it came from the sky, was considered a tributary of nearby Crowfoot Creek and thus subject to a 1925 law that gives the MWC full ownership and rights. Therefore prosecutors were able to argue in court — successfully — that three homemade fishing and boating ponds in Harrington’s backyard violated the law.

For filling “three illegal reservoirs” on his property with runoff water, Harrington has been convicted on nine misdemeanor charges in Circuit Court. He says he will attempt to appeal, but as long as the conviction stands to serve 30 days of imprisonment. He has also been sentenced to an additional three years of probation.


Anonymous said...

The reasonableness would kinda depend on the scarcity of water and how the rainfall is expected to seep into water tables.

Among other things.

And from a *legal* standpoint, this is not Harrington's water (much as he might like it to be).

"Under Oregon law, all water is publicly owned. With some exceptions, cities, farmers, factory owners and other users must obtain a permit or water right from the Water Resources Department to use water from any source— whether it is underground, or from lakes or streams. Landowners with water flowing past, through, or under their property do not automatically have the right to use that water without a permit from the Department."

Water rights in the country have a very long history (you can find examples during the early industrial revolution here where folks were building dams on rivers and screwing up the water flow of downstream factories ...) and I'd be reluctant to form a strong opinion until I knew the background on Oregon's water rights history.

It is clear that Harrington disagrees with the current law ... but it also doesn't seem that the law is particularly vague.

-Mark Roulo

maxutils said...

I actually see the government's point . . . I was ready to wholeheartedly argue the government's side if he were to divert a public waterway . . . which he isn't. So, while I tend to side with him anyway, I at leastunderstand the argument . .were he not to have collected the water, it would have become part of the public waterway, and if enough people did the same it could have a negative effect on the public welfare. But, at what point do they step in? Is it legal for me to collect a pitcher of rainwater, or to eat a handful of snow?

Anonymous said...

"But, at what point do they step in? Is it legal for me to collect a pitcher of rainwater, or to eat a handful of snow?"

I don't know :-)

I'm *guessing* that "reasonable and typical" use is fine. And that 90+% of these cases would find broad agreement amongst the public and the courts.

It is this last 10% or so where we would find disagreements (and that is why we have courts).

Without forming an opinion on the reasonableness of the law in question, though, I'm pretty sure that building new reservoirs would fall outside "reasonable and typical" use.

Would one reservoir be okay? I don't know. Probably not.

How about a small swimming hole? My guess is that this would be okay.

Clearly at some point the small swimming hole becomes a reservoir ... and okay becomes 'not okay' ... and that last few cubic feet sure seem like an odd thing to litigate over.

But that's what we do in lots of areas. You are certainly allowed to breath :-) You also probably can't dump 1,000,000 tons of CO2 into the air that you share with your neighbors. Where is the cutoff point? Beats me.

I actually feel sorry for this guy. I'm quite sure that he feels very put upon.


-Mark Roulo

mmazenko said...

Water rights in this country are quite serious - and the history behind protecting them is foundational for the growth of the American economy. Had the government not been defending people like Harrington for hundreds of years, people like Harrington wouldn't have ever been able to develop farms "on their own property."

Certainly, people here in Colorado would love the keep all the water that "falls" into our snowpack and our man-made reservoirs and not share it with the entire Southwest. Especially this year with the scarcity. But that would jeopardize the entire national economy. And we are not an autonomous entity. This case is mis-characterized as the govt picking on the little guy. And this is a terrible example for criticizing government overreach.

I feel sorry for the guy - sort of. But I feel for all the other little guys whose water table is lessened by his perceived "right" to keep it because it fell on his property. Should Harrington get to keep his water, and the guy downstream see his stream supply dry up because he was in an area where the rain didn't fall - this year.

The government is right in this case. Water rights are serious business.