Fallen tree poses challenge

Floaters drift around a fallen willow tree on the Deschutes River on Tuesday afternoon just upriver from the Galveston Street bridge. Photo: Rob Kerr / The Bulletin

When the massive willow tree on Northwest Riverfront Street crashed into the Deschutes River on Tuesday afternoon, it put a lot of people in a tough situation.

“We’re going to have to use some ingenuity and problem-solving skills to figure it out,” Wade Fagen, a tree specialist with Fagen Tree Service and Wood Chips, said. “The tree is in the most impossible spot I’ve ever found a tree in.”

The tree, until its roots gave way, stood on the east bank of the Deschutes. Now it blocks half the river and is proving a challenge to even seasoned tree removal professionals. With the diameter of the trunk measuring about 4 feet, and the fence gate it must go through only 36 inches wide, Fagen is having to find a way to make the impossible possible. Even if the tree could fit through the gate, the crane that would be needed to lift the tree over nearby houses would be too heavy for the driveway concrete.

“The size of crane that we’d need would probably crush the driveway,” Fagen said.

At this point, Fagen said, the most feasible option would be to cut the tree into pieces that can be floated downstream under the Galveston Avenue bridge. Crews would then use a crane stationed on the bridge to lift the pieces out of the water. This would most likely close a traffic lane, Fagen said.

He is working with homeowners and city officials to secure the job, and schedule a time for it. Fagen said his crews will try to work at night or in the early morning to avoid creating traffic congestion on the bridge.

Fagen said the removal project will cost less than $10,000. The owners of the property where the tree stood on Riverfront Street will most likely end up footing the bill, he said. The tree stood on a line between two properties.

“It’s going to be a very huge, tricky job,” said Pam Stevenson, one of the property owners. “It’s an unusual situation. You have this enormous tree sitting in a high-use area of the river.”

Stevenson spent much of Wednesday talking to tree specialists, city officials, insurance companies and Bend Park & Recreation District officials. She said her biggest concern is the danger the fallen tree poses to river floaters and rafters.

On hot, sunny summer days, Stevenson has counted as many as 500 floaters an hour drifting by in the stretch of river that is now partially blocked.

“Most people in rafts would have enough common sense to stay away from the tree,” Fagen said. “But all it takes is one person who can cause problems for everyone else.”

Stevenson said her insurance company informed her Wednesday that it would cover only $500 of her share of the removal costs.

“We’re trying to figure out now how to pay for it,” Stevenson said. “We hope to get some help with it.”

Marybeth Stewart, the owner of the neighboring property that the tree stood on, is in the same situation. After a meeting with city officials and Fagen late Wednesday afternoon, she said she is unsure when the tree will be removed. She wants to get several quotes from tree removal specialists, and is hoping the city will chip in for at least some of the costs.

The tree graced the banks of the Deschutes for about 50 years. Its fall was caused by rot, which took hold after the tree was scarred at some point, Fagen said.

Stevenson is holding a memorial service at 7 p.m. today by the tree, in which community members can honor the fallen giant and take cuttings of it.

“Everyone loved the tree, and it loved everyone back,” Stevenson said. “It had a wonderful life.”

Source: The Bulletin ©2012

Landmark Bend willow falls

Neighborhood residents and a Bend police officer look over damage that occurred Tuesday afternoon when a large willow tree tumbled into the Deschutes River off Northwest Riverfront Street upriver from the Galveston Street bridge. Photo by Rob Kerr / The Bulletin

A prominent willow tree along the Deschutes River in Bend tumbled into the water Tuesday.

“It’s a terrible, sad thing,” said Ellen Waterston, who lives across the river from where the tree fell. “She was just the mother of this river.”

The willow stood on the east bank of the Deschutes, behind homes on Northwest Riverfront Street. People floating the river regularly would grab onto its branches and roots as they drifted past, said Waterston, a poet and author.

“It was just an absolutely beautiful, enormous willow,” she said.

The downed tree blocked nearly half of the river just upstream of the Galveston Avenue bridge. The willow was a Bend icon of sorts, said Pam Stevenson, 50, who owns part of the land where the tree once stood.

“I can’t tell you how many thousands of people enjoyed floating under it and enjoyed relaxing in the shade of the tree,” she said.

Over the last two summers, the willow was also the sight for small concerts Stevenson said she hosted in her backyard, often as fundraisers.

Stevenson said she wasn’t sure what caused the tree to fall around 3:30 p.m. “It ripped out at the roots and fell into the river.”

Waterson and Stevenson both said they didn’t see the tree fall, but did hear the crash and splash.

“(I) came out and there it was, in the river,” said Stevenson, who has lived along the river for 12 years.

She had named the tree after her dog Popcorn, a corgi and and Jack Russell mix that died at age 15 in 2000 and was buried under the tree.

A wooden sign on the tree marked it as “Popcorn’s Willow” and gave warning earlier this summer that the tree was starting to swoon. Stevenson said the once-level sign showed a definite slant.

Hoping to halt its droop, Wade Fagen, a tree specialist with Fagen Tree Service and Wood Chips, said he planned to trim the willow branches this winter when it would be dormant.

After examining the fallen tree Tuesday afternoon, Fagen said the tree appeared to have been scarred at some point, which caused it to rot.

“The roots are all rotten,” he said.

The tree appeared to be about 50 years old, but Fagen said he won’t know for sure until he cuts into it.

Stevenson said she planned to discuss with Fagen how to remove the tree. Fagen said doing so could be a challenge. Removing the tree may require floating it down the river.

Before that happens, Pam Hardy, 44, a friend of Stevenson, said they plan to take cuttings from the willow and use them to plant new trees along the river — including one in the spot where Popcorn’s Willow used to stand.

“This tree will live on,” she said.

Source: The Bulletin ©2012

River ownership proves murky

Dave Merrick has fished the Deschutes River since moving to Bend in the 1980s.

Although Merrick grew to know the river well, it was more difficult to figure out who owned the riverbed and riverbanks — where members of the public could go, and where only private property owners could tread.

“What the rules are has always been a foggy one on the Deschutes, frankly,” said Merrick, 46, manager of Fly and Field Outfitters in Bend.

In 2005, the Oregon Attorney General’s Office issued a legal opinion that anyone can walk on a riverbank as long as it is below the ordinary high-water mark of the river. That has not prevented some private property owners from shooing anglers off sections of the river.

“Certainly, I’ve had instances — I know some of our guides have — where the boat’s anchored 10 feet off the bank in the water, folks are wading and fishing, and they’re being told to get out of there,” Merrick said. “I grew up around here, and in my lifetime, it’s just always been that way.”

Without clear rules, Merrick plays it safe.

“Having guided the river for a lot of years, my rule has always been unless it’s listed on the state’s navigable waters list, you’re not allowed on the banks on private property,” Merrick said.

A state task force could clarify the rights of recreational river users if it produces a bill for the 2013 legislative session, but the group will not likely weigh in on who owns the beds and banks of many Oregon rivers.

“The state has this claim to rivers that are navigable, but no one knows what they are,” said Jennie Bricker, a lawyer in Portland who represents property owners on questions of waterway ownership. Bricker is also on the state task force trying to address recreational use of rivers not designated as navigable.

Further complicating matters, many riverfront property lines extend to the middle of a river but the deeds that back that up might be very old and inexact. They can also require much research to locate.

“Early surveying in the Oregon territory and the state of Oregon was done by chains and rods, which is not very accurate when you’re dealing with topographical changes,” said Liz Dickson, a lawyer in Bend who does extensive work on land use and water law. “And in the case of rivers and streams, there often isn’t a way to place a rod in the middle of the river, so oftentimes, surveyors were guessing as to the location of boundary lines.”

Once a river is deemed navigable, the state takes ownership of the riverbed and the public can walk or camp on the riverbank. The state has declared sections of 12 rivers as navigable. In 2005, the state recognized a 174-mile stretch of the John Day River as navigable as the result of a lawsuit by the Association of Northwest Steelheaders. The group sued after a fisherman was ticketed for trespassing.

In 2010, a bill to clarify river usage rights for boaters, anglers and others ran into opposition from private property owners, and instead, state lawmakers created a task force to work on other approaches to the issue.

Secretary of State Kate Brown said Friday there are likely up to 200 more rivers for which the state has yet to determine navigability.

“But that doesn’t prevent Oregonians from using these waterways,” Brown said. Brown worked on navigability issues for more than a decade as a state lawmaker and is now involved with the task force.

Since 2010, the task force has been trying to come up with a set of rules on which both property owners and river users can agree.

“We’ve been working collaboratively for the last year and a half to come up with a consensus or a general agreement about some legislation, and the route we were taking is looking at what we would call an expanded water trails program,” Brown said. “Generally speaking, a water trail is a portion of a river or shoreline that’s been mapped for use by river users. … So there would be designated spots for accessing the river.”

“The goal is for the rules of the river to be very clear for the river users and the property owners,” Brown said. “Right now we’ve got some people playing Monopoly and some people playing Scrabble, and we’d like to get everyone on the same page.”

The Oregon Parks and Recreation Department already established these trails on rivers recognized as navigable, and future legislation could do the same on rivers not on the navigable list, Brown said.

“I’m hopeful we’ll introduce legislation next session, but we’re still in a working phase,” Brown said.

A system of water trails still would not resolve who owns the land under Oregon’s rivers not designated as navigable. It also would not prevent people from requesting that the state research whether specific rivers are navigable.

Walt Bammann, a Roseberg man who described himself as an avid whitewater enthusiast and membership secretary of the North West Rafters Association, said questions about river ownership made it difficult for people to float down the Metolius River.

“For years, our rafting club would float the river,” Bammann said. In the 1990s, the Confederated Tribes of Warm Springs began asserting their ownership rights to the center of the river.

“Any boater that launched at some point would effectively be on their side of the river,” Bammann said. “It’s a real murky matter. … Whether the Metolius was ever navigable is a gray area, as (with) many rivers.”

In some situations, a lack of public access along riverbanks puts rafters in danger. For example, rafters and other boaters often need to portage around a waterfall or other dangerous spot on a river, Bammann said.

Bammann and Merrick acknowledged that some river users act in ways that frustrate property owners, whether by urinating and littering on a riverbank or trespassing to reach an ideal fishing spot.

Bricker said she disagrees with the 2005 attorney general’s legal opinion that opened rivers to the public below the ordinary high-water line. The opinion expanded rights for recreational river users, but it shrank the rights of private property owners, Bricker said. Bricker likes the idea of water trails because they could result in restrooms and other facilities “to make it easier for the public to use those segments of the rivers, and also take some of the burden off property owners.”

“When people are floating a river, it’s not always clear when you’re leaving public property and entering private property, and there aren’t always places to stop and, for example, go to the bathroom,” Bricker said.

The controversy does not seemed headed for resolution soon.

“This is a very emotional subject,” Bammann said.


Navigable rivers in Oregon
When Oregon achieved statehood in 1859, the state took ownership of all rivers that were used, or could have been used, in their natural condition to transport people and goods. However, the state did not identify which rivers met these criteria and were navigable.

For a river to be listed as navigable, it must go through a lengthy and typically contentious bureaucratic process. This means the state might own the Deschutes River and many others, but no one has gone through the process to establish it.

Source: The Bulletin ©2012

Who owns Mirror Pond?

Canoeists paddle Mirror Pond in Bend circa 1910. Outdoor enthusiasts might be surprised that parts of a landmark like the pond could be privately owned, but laws that allow the public to play in rivers don't prevent land underneath the water from being owned.Courtesy Deschutes County Historical Society
Canoeists paddle Mirror Pond in Bend circa 1910. Outdoor enthusiasts might be surprised that parts of a landmark like the pond could be privately owned, but laws that allow the public to play in rivers don’t prevent land underneath the water from being owned. Courtesy Deschutes County Historical Society

Bruce McKay says his favorite beer is Deschutes Brewery’s Mirror Pond Pale Ale. While that’s not surprising, McKay’s claim to the ale’s namesake is.

McKay and his siblings are the grandchildren of Clyde McKay, one of the early landowners who shaped the development of Bend after moving to the town in 1911. When land along the river was divided into lots, Clyde kept the land under the Deschutes River, the family story goes.

However, the story passed down by the McKay family is difficult to substantiate on paper.

The question of who if anyone owns the land under Mirror Pond arose during the past decade, as community members and officials from the city and the Bend Park & Recreation District discussed whether to dredge the silt that has accumulated in the pond. According to experts, Mirror Pond is at risk of turning into a wetland.

Officials expect that dredging the pond would cost $2 million to $5 million. They would also need permission to dredge from anyone who owns land under Mirror Pond. At a meeting of the Mirror Pond Steering Committee on Monday, members including officials from the city and park district discussed whether one of the government agencies should buy the land from the McKay family.

Bill Smith, a member of the committee who is also the developer of the Old Mill District, paid for a title search and told committee members the McKay family owns 90 percent of the land under Mirror Pond, Bend Director of Community Development Mel Oberst said.

Smith did not provide a copy of the results to the city, which has not conducted its own research on ownership of the pond.

Oberst said Smith’s title search is the only evidence he’s seen suggesting the bottom of the pond belongs to the McKays. “The city has no records,” Oberst said.

Smith wrote in an email that he does not have copies of the deeds.

A search of Deschutes County Assessor’s records turned up no evidence that the McKay family owns or pays taxes on land under the Deschutes River.

Questions about who owns Mirror Pond are also connected to a broader debate in Oregon over who owns rivers. A 2010 bill that would have clear usage rights was not approved, and instead a task force was formed and continues to examine the issue.

Silt: an old problem

For nearly two years, the Mirror Pond Steering Committee has been meeting to address silt building up in the pond along the Deschutes River in downtown Bend. The committee has discussed leaving the pond alone, dredging the pond, and removing the dam, although members have focused on the dredging option. The Mirror Pond Management Board, an even broader group, has been discussing the same topic for three years, and the city has contemplated dredging the pond since at least 2003, said Tom Hickmann, the city’s engineer and assistant public works director.

The city last dredged Mirror Pond to remove silt buildup in 1984. Hickmann said he did not know why ownership of land under the pond was not an issue in the 1980s. However, environmental regulations have made dredging more complicated over time. Liability issues, such as who must clean up any toxic substances that might be unearthed beneath the mud, are now a hurdle to dredging.

“Today, if there were trace elements of heavy metals or those kinds of things that are now required to be evaluated when you dredge, who would deal with that is a bigger issue,” Hickmann said.

Family claims ownership

The McKay family traces ownership of the land under Mirror Pond back to 1911, when Clyde McKay and his business partners formed the Bend Company.

“It’s been in the family for a long time,” said Bruce McKay, 60, who is a jewelry designer in Portland.

Clyde McKay came to Bend from Minnesota in the early 1900s, and helped transform the timber industry from a small local concern into a supplier of lumber to states across the West, according to documents at the Deschutes County Historical Society.

After the Bend Company formed, it purchased all but 10 acres of the land held by Alexander Drake, another major player in the building of Bend, said Bruce McKay. The Bend Company owned 3,000 acres of timberland, 2,000 acres of agricultural land, 1,400 acres of land next to the town, 1,300 platted lots in the town, a sawmill, the power and lighting plants, the city water system and various resource rights, according to a 1992 article in the Central Oregon Business Journal.

The Bend Company operated a mill where Columbia Park is today. The mill burned down in 1915, so Clyde McKay decided to shift his business interests to real estate, Bruce McKay said.

While most riverfront property lot lines in those days stretched to the middle of the river, Clyde McKay cut them off at the bank and kept the property under the pond, Bruce McKay said. Decades later, Clyde McKay’s businesses floundered in the Great Depression, but he was able to keep the pond property and pass it on to his family.

Bruce McKay said it became a family joke. “We ended up with a bunch of mud under the river,” he said.

A family trust, with seven trustees, now owns about 90 percent of the land under Mirror Pond, Bruce McKay said. McKay said he was the only trustee willing or able to talk to The Bulletin last week.

As to the question of how to handle the silt buildup in the pond, Bruce McKay said he has no opinion.

Although the Mirror Pond Steering Committee is discussing whether the city or the park district should buy the land under Mirror Pond from the McKay family, Oberst, the city’s director of community development, said he was not sure if the city or district would want to own it. And it’s unclear whether the family would sell it.

Bruce McKay did not answer the question of whether the family would be interested in selling the property, only saying that “it’s something that has been in the family a long time.”

The Bend Company and the McKay family sold land around Mirror Pond to the city in the past. In 1921, the Women’s Civic Improvement League gathered signatures to lobby the City Council to purchase land for Drake Park from the Bend Company. Voters then approved a bond measure that raised $21,000 to purchase 10.5 acres for the park, according to a document at the Deschutes County Historical Society. In 1982, the Bend Foundation purchased another piece of property on the east bank of the Deschutes River from a daughter-in-law of Clyde McKay for $350,000. The foundation donated the land to the park district, which used it to expand Drake Park, The Bulletin reported.

Privately owned

For the boaters who paddle around Mirror Pond, it may come as a surprise that the landmark could be privately owned.

State laws allow the public to wade, swim and float on rivers around Oregon, but that doesn’t mean the land underneath the water belongs to the public, said Julie Curtis, spokeswoman for the Oregon Department of State Lands.

The land is only publicly owned if the river has been determined to be navigable, via a study or declaration, or where tides influence the river, according to the department’s website.

That means it is possible private parties own the bottom of the Deschutes, although the department has no record of a private owner.

Rick Allen, chairman of the Oregon State Marine Board, was involved in the process of designating the John Day River as a navigable waterway. Members of the community could initiate the same process to gain public ownership of the section of the Deschutes River that includes Mirror Pond, Allen said.

“It’s a long process, but the bar to have it declared navigable is normally not that difficult to make,” Allen said.

Mapping river ownership

In April, the Deschutes County Clerk’s Office recorded a deed transferring property in downtown Bend from Bruce McKay’s mother to the trust that includes Bruce and his siblings. This included but was “not limited to the property submersed beneath the Deschutes River,” according to the deed.

With such a vague legal description, it is difficult to search for prior records of the McKay family’s ownership of land under the river. The county’s chief cartographer, Greg Bates, said the McKay family would need more than this deed to prove ownership if they want the county to generate a tax lot for the property.

“Somebody would have to produce possibly a title report or something equivalent to that to show they do indeed own it,” Bates said. “That deed that was recorded, there’s nothing to back it up.”

Ownership questions such as this might be part of the reason the county never drew tax lots for land people owned under the rivers.

“They probably didn’t know who owned it,” Bates said. “We have just not made any effort to do anything different than what was already decided.”

Source: The Bulletin ©2012

Mirror Pond committee still unsure

The Mirror Pond Steering Committee has $200,000 it must use to determine how to handle silt build-up in Bend’s signature body of water.

The City of Bend and the Bend Park & Recreation District each put up $100,000 in the last month to fund the search for a silt solution, said Mel Oberst, director of community development for the City of Bend.

“What are we going to do with it?” Oberst asked the committee at a Monday meeting.

The committee is composed of representatives from the city and the park district, as well as William Smith Properties, Inc., which owns the dam upstream from the pond; Pacific Power, which owns the dam creating the pond; and Bend 2030, a civic group. In the one-hour session, the committee decided it will start by pricing how much it would cost to have drawings made of each of the options for the pond and investigating the cost of permits needed from state and federal agencies to dredge the pond.

The options being weighed by the steering committee include not removing the silt, removing the dam that creates the pond, or dredging the pond.

Silt collects in Mirror Pond, forming mudflats that clog the pond on the Deschutes River.

While dredging is the apparent solution, there are many challenges.

They include finding a funding source for the project, which will likely cost between $2 million and $5 million.

The park district considered allotting $425,000 for a study on dredging the pond as part of its November bond measure, but cut it in June.

The city and the district then put up the $200,000 to be used on Mirror Pond.

To move forward, the committee also must earn the approval of the owners of the land under the pond.

The McKay family, one of the pioneer families of Bend, owns about 90 percent of the land under Mirror Pond, Oberst said.

In looking at how to handle the silt problem, the committee will evaluate whether the city or the district should buy the land. Before those discussions got too far Monday, Bill Smith — who developed the Old Mill District — said the steering committee should reach out to the McKay family. Smith’s company also owns the Colorado Avenue Dam, just upstream of Mirror Pond.

“We should get a feeling from the McKays (of) what they are willing to do,” Smith said.

Oberst is doubtful either the city or the district wants to buy the property. The committee is planning to reach out to the public to gauge its sentiment about the future of the pond.

Source: The Bulletin ©2012

Steering Committee Minutes 8-6-2012

MIRROR POND STEERING COMMITTEE

Attendance: Bill Smith, Angela Jacobson, Bruce Ronning (BPRD), Mel Oberst, Greg Blackmore, Matt Shinderman, Joy Cooper (student intern), Dylan Darling, Bend Bulletin

Discussion of $200,000 Commitment by City and Bend Parks and Rec District

  • Talked about using funds for alternative analysis, permitting requirements and public outreach

Tom Atkins is a landscape architect who may be able to prepare conceptual drawings of potential MP solutions

  • Matt will contact Tom to discuss

Need protocols for decision-making

  • Convene Park Board, City Council and Mirror Pond Management Board (MPMB) in a work session to discuss MP solutions and visioning Conceptual drawings are needed prior to this discussion

Matt will engage the 2030 Management Board about community outreach
The committee needs to resolve the legal questions regarding ownership and permitting requirements

  • Bill will contact the McKays (owners)
  • Mel will work with Mary Winters (City attorney) on legal issues

Greg spoke regarding MP issues

  • Need to define purpose and need statement for permit process
  • Need a statement to discuss MP with the public
  • Full blown NEPA process costs $500,000, which was the cost projected by the earlier study

The State Of Oregon Vs. Rain Man

Brian Horton of Eagle Point takes video of one of Gary Harrington’s three reservoirs off Crowfoot Road. Harrington, right, has been convicted three times for illegally storing water without a permit. He has been ordered to report to the Jackson County Jail Wednesday for a 30-day sentence for his latest conviction. Photo by Jamie Lusch
Brian Horton of Eagle Point takes video of one of Gary Harrington’s three reservoirs off Crowfoot Road. Harrington, right, has been convicted three times for illegally storing water without a permit. He has been ordered to report to the Jackson County Jail Wednesday for a 30-day sentence for his latest conviction. Photo by Jamie Lusch

EAGLE POINT — At 13 feet deep and well over an acre in size, one of Gary Harrington’s three illegal reservoirs off Crowfoot Road looks more like a private playground than a rain-fed, backyard fire pond.

A fishing dock lined with rods and rod holders is tethered to shore near an outdoor barbecue. Boats line the bank. A fish feeder floats nearby, dispensing food to the illegally stocked largemouth bass Harrington says he bought from a Medford pet store.

It’s a place where family and friends spend hot summer days and where wildfire rigs can hook up to a water line any time they need a refill, free of charge.

“The fish and the docks are icing on the cake,” says Harrington, 63. “It’s totally committed to fire suppression.”

It’s a story state police and water managers have heard for more than a decade and still consider irrelevant. Ditto for state courts that three times over an 11-year span have convicted Harrington of illegally storing water without a permit. On Wednesday, Harrington must report to the Jackson County Jail for a 30-day sentence for his latest conviction.

Jackson County Circuit Judge Timothy Gerking last month ordered Harrington to drain the ponds, breach the dams built to create them and pay $1,500 in fines.

But Harrington’s not budging, and he’s undergoing a series of gyrations to keep the ponds and dams intact.

Now 0-for-3 in the court system, Harrington is taking his case to the court of public opinion to gather property-rights sympathies as simply a landowner capturing the rain that falls on his land.

To state officials, Harrington is a serial water thief. To supporters, he’s “Rain Man,” a poster boy for those who believe government is overstepping its bounds.

He’s done about two-dozen radio and television appearances since his July 25 sentencing, all carefully screened to ensure his property-rights message gets across.

“We’re controlling what’s being said, so we get the facts out there,” says Dominic Nutter, who calls himself a legal researcher and not a lawyer who is advising Harrington and screening his media requests. “We’re trying to make sure people understand what their rights are.”

Water resources officials say his rights are clear: He cannot store water without a permit, and he does not have a permit.

The law exempts water collected off parking lots or rooftops and funneled into rain barrels, water resources officials say. 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.

That’s way different than the roughly 40 acre-feet of water — enough to fill 20 Olympic-sized swimming pools — Harrington illegally captures without a water right behind dams as much as 20 feet tall that he built without permits, state officials say.

“Mr. Harrington has operated these three reservoirs in flagrant violation of Oregon law for more than a decade,” Oregon Water Resources Department Deputy Director Tom Paul says.

“What we’re after is compliance with Oregon water law, regardless of what the public thinks of Mr. Harrington,” Paul says.

Harrington said he has appealed his conviction to the Oregon Court of Appeals and has asked the Oregon Supreme Court to step in and keep Gerking’s rulings from being enforced during his appeal.

On July 18, a week after his conviction and a week before his sentencing, Harrington deeded four tax lots that include the three ponds for $4 to the Farm of the Family Health and Recreation Association. Harrington calls it a “private member association” he set up on June 1 that includes Harrington and select friends and family.

Nutter says the ponds now belong to the association, which has no legal beef with water resources managers.

“The crime follows Gary, not the properties,” Nutter says.

Because Harrington was issued three years of bench probation that includes conditions that he drain the reservoirs and breach the dams, those conditions still apply, says Kate Medema, a state Department of Justice spokeswoman.

“If he says he has no authority to do so in light of these deeds, we’ll probably end up back in court,” Medema says. “We expect Mr. Harrington to follow the conditions of his probation.”

Harrington has argued in court filings that neither he nor any Oregonian is beholden to the water resources department because its members failed to take and file the proper oaths of office Harrington claims are required by the Oregon Constitution.

Gerking ruled against Harrington’s claim.

“Mr. Harrington misinterpreted the state and federal constitutions and his reading of them is overly broad,” Medema says. “His reading would, essentially, require every state employee to take an oath of office.”

Harrington has posted signs on his properties warning any state officers to stay off his property, citing protections under the First and 14th amendments to the U.S. Constitution.

Sine Harrington’s sentencing, state water-resources officials have attempted to gain access to his property to see whether Harrington has complied with the judge’s order, but were denied, Paul says.

“I think the court is going to look to us to enforce the judge’s order,” Paul says.

Water resources officials further discussed the case last week with Patrick Flanagan, the Department of Justice prosecutor who handled the most recent case, Paul says. Paul declined to discuss the nature of those discussions.

Between radio and television appearances last week, Harrington set up a website with links to interviews on Fox News Channel’s “Fox and Friends” and other media outlets. Fox News is owned by News Corp., which also owns the Mail Tribune and Ashland Daily Tidings.

The website, www.empoweringthejury.org, includes a petition to the state of Oregon to reverse Harrington’s July 11 guilty verdict.

Harrington has solicited a videographer to film footage showing that his reservoirs don’t have creeks flowing into them. He intends to post it and other information about his defense that he wasn’t allowed to present in court, he says.

Frustrated water managers are unimpressed.

“We’ve been working on this about 10 years,” Paul says. “We very much support what the court did.”

As the water drama continues to play out, Harrington relishes his Rain Man role in what he and his supporters couch as one little guy’s fight against big government.

“I guess I’m not surprised,” Harrington says. “I realized a while ago that this is a fight worth fighting.”

Reach reporter Mark Freeman at 541-776-4470, or email at mfreeman@mailtribune.com.

Related Story: Man jailed for illegal water storage

This story originally appeared in Medford Mail Tribune ©2012.

Why no contribution from Pacific Power?

According to The Bulletin’s July 19 editorial, “The prime cause (of the silt buildup in Mirror Pond) is the nearby hydroelectric dam that slows the water flow, causing sediment to drop and build up in the pond.”

The dam is owned by Pacific Power.

To address the sediment problem, a “staff study” has been commissioned, with the city of Bend and the Bend Park & Recreation District each contributing $100,000 to the effort, from our tax dollars.

Why are taxpayers on the hook for this study? Why no contribution from Pacific Power? Not only is its dam responsible for the silt buildup, but it is benefiting from a nice revenue stream generated by our river.

Why the silence from Pacific Power? Why aren’t we asking more of it?

Karen Berky
Bend