Many people–especially those living in suburban and rural areas–try to live more sustainable lives, relying less on others to provide for their needs, primarily food.
Even urban dwellers are emphatic about their balcony gardens with potted tomatoes.
We like to see things grow, to enjoy the products of our labor, and to feed ourselves with healthy foods in environmentally-friendly ways. If given an opportunity to further those aims, we take it–not to do so seems wasteful.
A man living in rural Oregon was fined and jailed for doing just that. Gary Harrington owns a 170-acre property in southern Oregon. He has built dams on his land to feed three large ponds, collecting rainwater and snow melt to irrigate his crops and provide a resource for firefighters.
When the reservoirs are full, the excess runs over the dams and continues to follow its natural route. The state government charged him on nine misdemeanors of misappropriation of water.
Kind of a Catch-22
A little history: beginning in 1973, Gary went to the government office to obtain a water certificate, legally and officially allowing him to collect water on his own property. He was told he needed a permit as a prerequisite to a certificate and, since he didn’t qualify/didn’t need a permit to collect rainwater in the way he proposed, he wasn’t issued a permit. Now that same government is prosecuting him for not having a certificate that it told him he didn’t need (and therefore refused to issue).
A new water master was appointed in 2002 and that’s when Harrington’s current troubles started. Knowing of Harrington’s system of water collection, the state changed its mind and issued him the necessary permits in 2003. Later that year, the permits were rescinded, citing a 1925 law that the city owns all “core sources of water”. Believing this to be injustice, Harrington did not disable his dams or drain his water stores. The state then slapped him with probation and accused him of diversion of a public water supply. Harrington consequently opened his dams but re-established his water collection a short time later.
“Harrington was cited with 6 violations of Oregon Water Law. He attempted to ‘work within the system’ to get permits and was told at the time that he could have a permit if he would agree to plead guilty to just one of the charges. He did that and the water resources department issued the permit. He said they returned in about 30 days and pulled his permit, saying they didn’t have authority to issue the permits in the first place. It should be noted that he does not divert any water from the creek, but captures rainwater falling on his property.”
A Valuable Resource for Local Firefighters
One of Gary’s natural reservoirs, of which–according to his legal counsel–there are hundreds in the area, is stocked with fish to provide food and a source of recreation for his family. He has generously opened his water supply to those fighting wildfire:
“The fish and the docks are icing on the cake–it’s totally committed to fire suppression.”
Local and state agencies have not only used his reservoirs to fight fires but have assisted him in maintaining them for that purpose. The local fire department submitted a letter to the presiding judge in Harrington’s case, petitioning to allow this important water supply to remain intact. It apparently had no effect.
Some of the water that is collected is legally used indoors; however, regulations stipulate:
“If it’s not gathered on an artificial, impervious surface, such as a rooftop, then you need a state water-right permit to collect it.”
Oregon’s position is that water is a publicly-owned resource. Yes, but the state wouldn’t issue him a permit because they said he didn’t need one.
The mainstream media has put its spin on this story, labeling Harrington’s reservoirs as illegal. What many are not reporting is that the jury was disallowed by the judge presiding over the trial from hearing the defendant’s evidence because it “may prejudice the jury”. Huh? Isn’t that the purpose of a trial by jury–to hear all evidence and make an informed ruling?
Legal Process a Barrier to Legal Process
The legal issues had gone back and forth over the years–before and after the issuance of the water collection permits. In a 2007 appeal, Harrington’s petition for review and legal arguments were dismissed due to his letter of petition not reaching the court in the allotted time–this because the previous judgement had not been issued as final, per legal process. He had been waiting for a statement of final legal consideration which he didn’t receive. Per the case notes, however, by virtue of no petition arriving asking for final judgement, he was denied review:
“In his declaratory judgment claim, petitioner challenges the department’s authority on a number of grounds, including that it had no regulatory authority over diffuse surface water and that ORS 538.430 did not withdraw diffuse surface waters from appropriation. He could have raised those issues in the original permit proceeding or in challenging the department’s enforcement orders. The administrative process was the exclusive avenue for deciding petitioner’s arguments. [emphasis added] Accordingly, the trial court correctly dismissed the declaratory judgment claim, and the issues that petitioner raises in his second and third assignments of error were not properly before the trial court.”
His 2012 incarceration in solitary confinement was followed by home confinement. The bracelet that was sealed on his ankle was removed some time later. Fed up with the whole mess, Harrington’s stance has become thus:
“When something is wrong, you just, as an American citizen, you have to put your foot down and say, ‘This is wrong; you just can’t take away anymore of my rights and from here on in, I’m going to fight it.”
Wasted, in The End
Adding insult to injury, Gary has been ordered to empty his ponds. The logic behind this is so absurd as to be criminal. Thirteen million gallons of water wasted. Rainwater and winter run-off. While wildfires rage throughout the Northwest. Have common sense and justice taken a permanent vacation?
His case is under appeal.
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