On April 9th, 2015, the DLWID Board voted 4-1 to abandon one third of the volume (147 million gallons) and 2 months of the duration of the District’s valuable water right. The Board also voted 4-1 to begin the permitting process for the removal of the D-River dam that is used to exercise that water right. In response to this action the Devils Lake Neighborhood Association filed a Petition for Judicial Review and Complaint for Breach of Fiduciary Duty in Lincoln County court. The goal of this action was to reverse the board’s action and we are very pleased that we were able to reach a settlement, with DLWID that accomplished our goal. The lawsuit has now been dismissed and our water right has been preserved. While necessary to protect your interest, this legal action was also expensive with costs in excess of $20,000 which we are currently seeking donations. You can help by clicking the donate button or mailing a check to DLNA, 2941 NE Loop Drive, Otis, OR 97368
The details of the lawsuit were as follows.
The case was titled, Devils Lake Neighborhood Association & Mitchell Moore vs Devils Lake Water Improvement District, Kip Ward, Randy Weldon, Brian Green, Kent Norris etal which was filed May 13, 2015 as Case 15CV12185.
The case existed because of the actions of the DLWID Board on April 9, 2015, specifically their Board Resolution (Return of Water Right) which read,
“I move that we modify all of our existing water rights and water right certificates and permits so that we are. . . ah . . . entitled to impound to an elevation of 9.0 feet above mean sea level which . . . I. . . ah . . . equates to approximately 998.5 acre feet of storage and impounding water no earlier than June first, and then only if the lake level is below 9.0 msl on June first, otherwise to begin impoundment by June fifteenth, and impounding water only through October fifteenth at the latest with accommodation of water drawdown in August and September as required by the . . . uh . . . water rights.”
In the lawsuit the DLNA and Mitchell Moore seek the judicial examination and judgment of the court as to the regularity and legality of the District’s actions and to declare one or more of the following. That,
- The District failed to publish proper notice of its intent to voluntarily abandon is water rights;
- The District’s resolution to abandon its water rights is a part of its engineering plan as defined in ORS 552.013(4) as part of the continued plan to replace the impoundment structure and the District failed to give this 20 days’ notice as required by ORS 552.418(2).
- The District lacked the authority to pass the April 9, 2015 resolution to abandon its water rights;
- The District breached its fiduciary duty to maintain the water rights of the District for the benefit of the Plaintiffs as District landowners; and
- The District’s April 9, 2015 resolution to abandon its water rights is void.
In an effort to resolve the lawsuit without going to the courtroom our strategy was to present a settlement proposal which we felt after the May election would be viewed favorably by the new Board of Directors. This did occur in the May meeting when the DLWID Board passed the following resolution.
Now, therefore, be it resolved, that:
- The motion made and passed on April 9, 2015 to modify the District’s water right Certificates 89980 and 69267 and Permit S-52672 is hereby rescinded and made null and void effective immediately;
- The District has a facility capable of handling the entire rate and duty authorized under certificates 9980 and 69267 and Permit S-52672;
- The District is otherwise ready, willing, and able to make full use of the rights under Certificates 89980 and 69267 and Permit S-52672; and
- The District will transmit a copy of this signed resolution by certified mail, return receipt requested to the Oregon Water Resour