PORTLAND, Ore. (CN) — A group of Oregon property owners who sued an irrigation district over its plan to convert miles of open earth canals into underground piping did not find the relief they were seeking after a three-member panel of the Ninth Circuit rejected their challenge to the project on Wednesday.
The property owners took issue with the Tumalo Irrigation District’s canal modernization plan, accusing the district of violating federal law. The construction process will remove vegetation in the easement surrounding the canal, and converting to a pipe means the property owners will no longer receive the incidental benefit of water seepage onto their land.
The Ninth Circuit panel — composed of U.S. Circuit Judges Jacqueline Nguyen, a Barack Obama appointee; Jennifer Sung, a Joe Biden appointee; and Consuelo Callahan, a George W. Bush appointee — swiftly rejected the property owners’ argument that that federal law limits the vertical scope of a canal to the floor or sides, and the district exceeded that scope of its right of way on their land.
Doing so “would lead to the absurd result that right-of-way holders could not perform necessary construction of and maintenance on natural ground canals and laterals, which would be contrary to common sense, the purpose of the statute, and longstanding practice,” the panel wrote in a memorandum.
The area in dispute is northwest of Bend in central Oregon. The current canal system, which pulls from the Upper Deschutes watershed, was established in the early 1900s, and the plan to convert the canal system to pressurized pipes is an effort to modernize the system and address resource concerns, according to the district.
The Natural Resources Conservation Service, a federal agency of the U.S. Department of Agriculture, approved the district’s plan in 2018, issuing an environmental assessment and finding of no significant impact.
In 2020, the property owners sued the irrigation district and federal agency in U.S. District Court of Oregon, asking for a preliminary injunction to bar the pipeline construction. The court denied the motion, and further dismissed the property owners’ second amended complaint.
The Ninth Circuit panel unilaterally agreed with the federal court.
The property owners accused the irrigation district of improperly modifying its easement use and argued the loss in property value from the pipe conversion constitutes a private nuisance.
“Even taking as true plaintiffs’ contention that the project will devalue their properties, their claims fail as a matter of law,” the panel wrote.
Piping is both reasonable and necessary for irrigation and the property owners aren’t burdened by losing the unintended benefits from open canals, the panel found.
“No evidence suggests that the original parties to the express easement contemplated that the irrigation system would benefit plaintiffs’ property with seepage from open canals,” the panel said.
Even if the property owners were burdened, Oregon nuisance law prevents conduct allowed by an agreement between parties from being considered “unreasonable and substantial interference.”
Since the project falls within the irrigation district’s express easements, the nuisance claim fails, the panel found.
The property owners also accused the Natural Resources Conservation Service and State Conservationist Ronald Alvarado of violating the National Environmental Policy Act by authorizing the irrigation district’s process. During an oral argument before the Ninth Circuit in early December, the property owners argued that the agency’s environmental assessment had been a “predetermined outcome” to approve the project without undergoing a meaningful analysis of cumulative effects.
The Ninth Circuit panel wasn’t convinced and noted the cumulative effects had been adequately analyzed.
“The agency’s ‘public safety’ purpose is supported by the administrative record, and plaintiffs do not proffer evidence that the agency’s stated reasons for rejecting the alternative were pretextual,” the panel wrote.