Can a city use eminent domain to nab a farm's water rights because it needs the water for an industrial park that will provide jobs and opportunities for its young people and therefore benefit the entire community?
To add a twist to this question: What if the owners of the farm requested that their land be rezoned "light industrial" so that it could be developed - a request that was granted by a state growth management hearings board.
In a situation like that, how does the definition of "public good," which is a requirement for condemnation through eminent domain, fit into the picture? Would an industrial park designed to benefit the city trump the farmers' plans to have their land developed if "public good" is the deciding factor?
These are the questions before the court as it weighs a request to reconsider an earlier decision that came out in the farmers' favor in the City of Winlock's case against Mickelsen Dairy.
Although the Mickelsens have moved the dairy to Moses Lake, the water rights attached to the land are being used to irrigate hay and a vegetable crop.
In a May 21, 2007, letter to the city's attorneys explaining his decision in favor of the Mickelsens, Cowlitz Superior Court Judge James Stonier said that while "the declaration of public necessity by the City of Winlock is valid, Mickelsen's agricultural use is superior."
The issue at hand, said the judge, was whether the state's prior appropriation water-rights policy - "first in time; first in right" - holds enough weight to withstand the city's attempt to condemn the water rights.
In his opinion, it does.
But he also said that the court does not find that any future proposed use by the Mickelsens, other than the current agricultural use, to be superior to the city's intended use of the water rights.
Because the city has asked the court to reconsider the decision, it is still an open case.
While pleased that the judge ruled in favor of the farm, Clinton Mickelsen warns that this legal battle could have serious statewide implications.
"I'm not exaggerating when I say that this is a huge issue - that it's a lot bigger than any of us," he said. "If we lose, it will affect farms and businesses across the state that have water rights, especially those near urban growth areas. Any growing city will think that all it has to do to get the water it needs is to condemn the water rights of a nearby farm."
Mickelsen said that under state law, anyone can use eminent domain to go after water rights.
"Eminent domain has more leverage in water rights than in real estate," he said. "The law allows it, but we're hoping that prior appropriation (first in time, first in right) will take precedence over other water laws."
Jay Gordon, executive director of the state's Dairy Federation, said the case is particularly worrisome to some of the farmers in the area.
"There's a concern in the valley that if the city wants to have enough water for an industrial park, it would need to go up the valley and 'dewater' six farms," he said.
But Winlock Mayor Cy Meyers said the city can't go outside its urban growth area to condemn water rights.
"Nor do I have any intentions to do that," he said. "I'm not interested in creating urban sprawl."
He said the 260 acre feet of water the city wants from the Mickelsens "would supply the industrial park nicely" and would also serve industrial or commercial development on the Mickelsen property.
The Mickelsens had intended to sell the water rights to a buyer who wanted to develop the land. Under that arrangement, the city would have managed the water attached to the water rights and supplied the industrial park, as well as any projects on the Mickelsen property, with water.
But the deal with the buyer fell through, leaving the Mickelsens with the water rights and the city determined to get them.
Mickelsen said that through the 55 years the farm has had the water rights, their value had pretty much stayed the same.
"But now people have figured out how scarce water rights are, and that makes them more valuable," he said. "Their market value is moving up significantly."
If the city should win the case, a judge will set the value on the water rights.
If the court decides not to reconsider the case, then the city has the right to appeal the decision that ruled in favor of the Mickelsens.
But Winlock Mayor Meyers is optimistic that the city and the Mickelsens can come to an agreement in 30 to 60 days.
"They're good people," he said, referring to the Mickelsens. "We're all trying to do what's right for Winlock."
Salem OR Capital Press: http://www.capitalpress.info
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