Water, water, everywhere, and not a drop to think: Gary Harrington, Oregon water rights, and Freedom


Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

Related Post Roulette

30 Responses

  1. Avatar b-psycho says:

    This indeed is complicated. That the tributaries flow through his property is one thing, but to effectively monopolize the water by blocking the flow, particularly because of the scale of his property claim, is something else entirely.

    Natural resources strikes me as a spot where validating only individualized property claims leads to trouble, so I’m inclined to lean against Harrington at least somewhat. However, there’s another angle I’m seeing in these kind of water disputes, one which I really think both sides completely miss:

    Oregon has a reputation for being a place where it rains all the time. However, this state of constant “liquid sunshine” (as we call it here) is actually primarily restricted to the Coastal Mountains and the Willamette Valley, where Oregon’s three largest cities are located. Much of the rest of the state is desert or dry tundra, and citizens in those areas are dependent upon wintertime precipitation for their year-long water needs.

    Decisions were made, over time, that resulted in those people in the desert and tundra areas living in such conditions. I’m not sure how much diversion has already taken place up to this point to facilitate them living away from the water, but eventually (assuming population growth) the needs can outstrip the capability to fill them. I hope no one stretches this to the absurd, but…at times I ask how far we really can stand to fight nature. Maybe the environment shaping us once in awhile isn’t so bad.Report

    • Avatar Mike Schilling says:

      That the tributaries flow through his property is one thing,

      Really, it’s nothing, the same way that “my property faces the street” is nothing if you try to put up a toll booth.Report

  2. Avatar Murali says:

    Nice post, Tod. I like the bit about issues being about competing freedoms. Its a point we sometimes forget, and one which must in general be anwered, Why these freedoms and not those. This needs some thinking on, and I will return for a fuller reply later.Report

  3. Avatar Kolohe says:

    Agree, good post. Riparian rights are hella complicated really can’t be derived from first principles; utilitarian concerns and situational dependence factor heavily. Though really, the oldest tool of state power is hydraulic despotism, except for maybe deciding who has sex with whom.Report

  4. Avatar James Hanley says:

    I don’t really have anything to add except good post. If Harrington was simply catching rain water that fell on his land through a clever system of pipes, beams and ditches, I’d be on his side, even though doing so kept that water out of the waterways. But if he’s actually diverting waterways that begin elsewhere and pass through his property, I think that’s different. For one thing that’s water that has already passed into public ownership, do he’s not simply keeping it in private ownership.Report

  5. Avatar greginak says:

    Great post Tod. To many discussions are rendered pointless, to me at least, by being so purely philosophical they become divorced from the world. The world is always complicated and doesn’t fit easy, and typically self-righteous, models. How to figure out the complications of the world and how to maximise the various competing freedoms is where the rubber meets the road.Report

  6. Avatar greginak says:

    I’ll note that this most excellent post only has seven comments so far counting this one. One might wonder what the reasons for that are. Random chance. The world is unfair. The mysteries of the universe. It doesn’t speak to the masses. Not enough sex. Real world situations and complexities are a lot harder to talk about than pretty theories.Report

  7. Avatar James K says:

    A very good post Tod. I would say that developing rules that allocate water rights is precisely the sort of thing we have governments for.Report

  8. Avatar Roger says:

    Seems to me that the answer is that water rights are a complex system and common law has evolved over time in a greatly, but not completely, decentralized way to effectively manage and coordinate these property rights.

    The reason we agree to follow laws and submit to the will of the majority is that we gain more from following rules where others also follow rules than we lose by the restrictions imposed by the law. The classic example is traffic rules. Our liberty is restricted every time we stop at a light. But our overall commute and health are vastly improved because we all follow consistent rules. We basically solve the “prisoners dilemma” by mutually agreeing to enforce consistent rules.

    When rules are aimed at optimizing the use of water for a community common law works great. When the goal shifts to trying to equalize water across every citizen, the system would self destruct.Report

    • Avatar James Hanley says:

      “Complex system” is the right way to look at it. Fairly immobile material property is easy to deal with. My house isn’t likely to go anywhere (absent extensive and costly efforts on my part), so the property definitions there are quite simple, and the same would be true if it were publicly owned. Mobile but immaterial property, intellectual property, as we have all become aware over the past decade or two, poses much greater difficulties in definition and enforcement. Mobile material property like water has long been a somewhat difficult resource for defining and enforcing property rights, but I don’t think there’s been much public awareness of it.

      So there appears, off-the-cuff, to be a continuum, where the easiest property to manage is material & immobile, somewhat harder to manage is material & mobile, and yet more difficult is immaterial and mobile. (God only knows how difficult immaterial and immobile property would be to define, or even what such a resource might be!)Report

  9. Avatar Michael Cain says:

    Should we allow Harrington and others the right to claim any water passing through their property, and perhaps sell it to the highest bidder? If so, should we do the same with our nation’s rivers?

    East of the Great Plains, this is largely how water law works. Most of the water law “back East” is based on riparian rights: if the river crosses your property, you have the right to make use of the water on your property, whether or not you’ve ever used it in the past. Maybe not all of it, but at least some of it. This was a fine way to organize things when it was essentially impossible for people’s water demands to exceed the ability of the river to deliver. Things are now getting interesting in the Southeast, as the population and demands of modern technology have grown to the point that some rivers can no longer meet all the demands placed on them. Riparian water law is not well-suited to addressing such shortages, as new users must be tolerated, subject only to their making use of a “reasonable” amount of the water. IIRC, for intrastate water cases in Georgia, “reasonable” is decided by a jury at trial.

    As a long-time westerner and current Coloradan, it is entertaining to watch the Georgia-Alabama-Florida water wars progress. Colorado (rightly known as “the mother of rivers”) is a party to one or more river compacts allocating usage with all but one of our neighboring states; and I’m sure that if any of Colorado’s rivers passed directly into Oklahoma, we’d have had to reach a settlement with them as well. All of those were basically settled by 1949 or so (some having been established in the 1920s). Colorado is beginning a new round of intrastate legal fights over water based on the linkage between ground water and surface flows. Great Plains farmers’ right to sink additional wells, or make existing wells deeper, is being challenged on the grounds that drawing down the water table reduces the flows in nearby rivers, and is therefore an illegal use of the river’s water.Report

  10. Avatar Mad Rocket Scientist says:

    I wonder sometimes if the natural resource management schemes similar to how fisheries & forests are being managed could work for water rights as well?Report

  11. Avatar DensityDuck says:

    Seems to me that the problem is we’ve reached Peak Water and our society needs to wean itself away from its water-guzzling habits.Report

  12. Avatar Matt says:

    Rain water is water “diffused” on the surface of the ground, a “tributary” is a small river or stream flowing into a larger river. This case was argued on tributary statutes, which is not rain water. Besides, I would have demanded the court prove and verify subject matter jurisdiction, which they would not have been able to do, because the US does not own the land. He’s in jail because he didn’t have himself sworn in, to have the mock-jury hear his evidence, and he was dishonorably refused counsel, even though the Circuit Court Judge noted that he honored that right. That Judge, Timothy Churchill Gerking, is in dishonor of his Oath and needs to be removed and disbarred.Report

  13. Avatar Wardsmith says:

    Tod, did you google map his address? The key here us whether there are real streams and rivers going to his reservoirs. I have a friend in washington state who drilled a well and used the water for hydronic heating. For the spillover he built a pond. Similar issues ensued no streams anywhere but now a pond the state thinks they own. I can’t do anything camping by a fire so will get back to this when I get home.Report

  14. Avatar wardsmith says:

    Ok, I’m back to civilization now and believe I’ve found his address. Not sure how it will render on your machines via googlmap satellite view but go to google maps and paste this:


    in your address bar. Of interest is the fact that there are NO streams coming into them. None. Harrington built a depression in the ground waited YEARS and eventually it filled with RAINWATER and nothing else. So my original point stands Oregon is (mis)using an old law that indeed was crafted to prevent damning up creek beds to deny water to the sheepherders below and cudgeling Harrington with it. As expected from liberal OR, after all, he didn’t build “that” (well actually he did but you get my point). Luckily for him, the US is a democracy of the people, by the people and for the people. Except people like him that is.Report

    • Avatar Patrick Cahalan says:

      Ward, I know very little about this guy’s case, but several million gallons of water is not the sort of thing you get from collecting rain, right?Report

      • Avatar BlaiseP says:

        It’s entirely possible. Here’s the problem. Water and drainage laws go back to the time of Hammurabi. It’s drainage which matters. Oregon observes the civil law of drainage.

        Admittedly, this power-mad water master is hurting this man’s fishing operation. But here in Wisconsin, we have the problem going the other way. Beaver dams create a flooding danger downstream. If B’s property is downstream of a beaver dam on A’s property, B is entitled to have that dam removed at damage party’s expense lest the beaver dam collapse and a million gallons of water wash the topsoil off B’s farmland.Report

    • Avatar Neo says:

      There may be streams you aren’t seeing.

      The google maps image was clearly taken in summer, when there had been no rain and any streams would have dried up… which is why the people in this area have a great need for water during summer: there are few streams to tap. You *might* be able to see whether there were streams feeding his ponds if the images were taken in winter. But 20000 gallons per day would only be one quart per second, which would be a small trickle a few inches across and might not be visible on google maps at all.

      Looking at his property on google earth, I’d say 42.595444,-122.707511 is a likely spot where winter streams might feed his pond.Report