U.S. appeals court reaffirms irrigation districts’ right to pipe canals, rejects Tumalo neighbors’ years-long challenge

PORTLAND, Ore. (KTVZ) – A three-judge federal appeals court panel has rejected a years-long legal challenge by Tumalo property owners to a Tumalo Irrigation District canal piping project, ruling that the easement covers the work being performed.

The U.S Ninth Circuit Court of Appeals judges issued an opinion in  Smith, et al. v. Tumalo Irrigation District, et al, affirming U.S. District Court for Oregon rulings concerning the piping of irrigation district canals and laterals.

"This ruling clarifies that Tumalo Irrigation District does have the right to make necessary improvements to modernize its water infrastructure within the district’s easements," the district announced. "The ruling provides certainty to the district and to other districts throughout the Western United States who are undertaking similar projects. "

The Ninth Circuit also affirmed the October 2023, U.S District Court decision clarifying that the U.S Natural Resources Conservation Service did not violate the National Environmental Policy Act and the court’s previous findings that the NEPA analysis adequately addressed the alternatives to piping, the economic impacts, and the cumulative effects.

The decision also confirms that piping the canals does not constitute a private nuisance and TID is not responsible for property devaluation, if any, resulting from the conversion. 

The case resulted from a group of Tumalo Irrigation District patrons challenging TID’s right to pipe in federal court. The U.S District Court did not agree with the plaintiff’s allegations and the matter was appealed to the US. Ninth Circuit. The case was successfully argued by Mark Reinecke of the law firm Bryant, Lovlien & Jarvis.

NewsChannel 21 reported in May 2021 on a group of Tumalo property owners who were suing the irrigation district and created a ‘Stop the Pipe’ website to garner public support in a bid to block the $42 million canal piping project.

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, Courthouse News Service reported Thursday.

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.

 Now that the Ninth Circuit has agreed with the lower court rulings, TID says it is focused on moving forward with completing its multi-phase infrastructure improvements.

Once completed, it says the improvements will result in increased water efficiency for farmers and water conservation that benefits federally protected endangered species, along with other environmental benefits. 

"These projects have a benefit not only for our district patrons but also for our local community as well," the district announcement said.

“This ruling affirming the District’s right to make improvements to the canals and improve water delivery helps with TID’s mission to effectively manage water resources to meet the present and future needs of its patrons in ways that are economically and environmentally responsible," said irrigation district Manager Chris Schull, "The district’s priorities are improving water delivery efficiencies, conservation, and preserving and restoring native habitats in the Deschutes Basin.”

April Snell, executive director of the Oregon Water Resources Congress, said, “This decision ensures that districts in Oregon and throughout the Western United States can move forward with modernizing their water delivery infrastructure, maximizing opportunities for increased water efficiency, conservation, and resiliency, which benefits farmers, rural communities, and the environment.

OWRC filed an amicus brief in support of the district, in partnership with the Idaho Water Users Association, Washington State Water Resources Association, Wyoming Association of Irrigation Districts, and the Deschutes Basin Board of Control.

Craig Horrell, president of the Deschutes Basin Board of Control, said “We’re pleased with the Ninth Circuit’s ruling and look forward to Tumalo’s conservation efforts to modernize its inefficient century-old open canal system. This ruling provides valuable certainty not just for Tumalo, but for other districts committed to managing water in a way that best serves the community, our farmers and ranchers, and fish and wildlife habitats.” said The Deschutes Basin Board of Control (DBBC) is comprised of eight irrigation districts in rural Central Oregon that are critical to conveying water supplies throughout the Deschutes Basin to over 7,600 farm and ranch families, schools, and local parks and recreation districts.

Mark Reinecke, the Bend attorney representing Tumalo Irrigation District, said: “The Ninth Circuit panel clearly understood the need, the practicalities, and irrigation district easement rights finding that the limitations suggested by the plaintiff property owners “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.”

Tumalo Irrigation District is located in Deschutes County and serves irrigation water for growing grass, hay, lavender, vegetables, and forages for livestock. They serve 700 patrons on over 7,400 acres of land.