The opinion
177
Argued and submitted November 6, 2019, reversed and remanded with
instructions to dismiss petitions December 30, 2020
TPC, LLC,
an Oregon limited liability company,
Petitioner,
and
Taylor A. HYDE
and John L. Hyde,
as General Partners of the
Hyde Family Limited Partnership,
Petitioners-Respondents,
v.
OREGON WATER RESOURCES DEPARTMENT
and Danette Watson, in her official capacity
as District #17 Watermaster,
Respondents-Respondents,
and
KLAMATH TRIBES,
Intervenor-Appellant.
TPC, LLC,
an Oregon limited liability company,
Petitioner,
and
Taylor A. HYDE
and John L. Hyde,
as General Partners of the
Hyde Family Limited Partnership,
Petitioners-Respondents,
v.
OREGON WATER RESOURCES DEPARTMENT
and Danette Watson, in her official capacity
as District #17 Watermaster,
Respondents-Appellants,
and
KLAMATH TRIBES,
Intervenor.
178 TPC, LLC v. Water Resources Dept.
Marion County Circuit Court
16CV27427, 17CV26962; A167380
482 P3d 121
This case involves final orders issued in 2016 and 2017 by the Oregon Water
Resources Department (OWRD) that curtailed petitioners’ use of their surface
water rights in the Williamson River, which is located in the Klamath Basin, in
favor of senior water rights held by the Klamath Tribes and the United States
as trustee for the Klamath Tribes. The parties’ water rights in the Williamson
River were established as determined claims in a 2013 OWRD final order that
adjudicated water right claims in the Klamath Basin. Exceptions to that 2013
order, including exceptions filed by the parties in this case, are currently on
review in Klamath County Circuit Court under the process provided for in ORS
chapter 539. Petitioners sought judicial review of the 2016 and 2017 curtailment
orders in Marion County Circuit Court, arguing that a provision in a stipulation
entered into by petitioners, the United States, the Klamath Tribes, and OWRD
in the Klamath Basin adjudication—a provision that was not incorporated into
the 2013 adjudication order—prohibited OWRD from issuing the 2016 and 2017
curtailment orders. Marion County Circuit Court concluded that OWRD was
subject to the provision in the stipulation, as urged by petitioners, and remanded
the curtailment orders. Held: Marion County Circuit Court did not have subject
matter jurisdiction over petitioners’ claim. Exclusive subject matter jurisdiction
over the precise claim brought by petitioners was with Klamath County Circuit
Court under the process in ORS chapter 539.
Reversed and remanded with instructions to dismiss petitions.
Thomas M. Hart, Judge.
Edmund Clay Goodman argued the cause for appellant
Klamath Tribes. Also on the briefs was Hobbs Straus Dean
& Walker LLP.
Dominic M. Carollo argued the case for respondents John
L. Hyde and Taylor A. Hyde. Also on the brief were Nathan
Ratliff and Yockim Carollo LLP.
Carson L. Whitehead, Assistant Attorney General, argued
the cause for respondents Oregon Water Resources
Department and Danette Watson. Also on the briefs were
Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Carson L. Whitehead, Assistant Attorney General, argued
the cause for appellants Oregon Water Resources
Department and Danette Watson. Also on the briefs were
Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Cite as 308 Or App 177 (2020) 179
Dominic M. Carollo argued the case for respondents John
L. Hyde and Taylor A. Hyde. Also on the brief were Nathan
Ratliff and Yockim Carollo LLP.
James A. Maysonett argued the cause on behalf of
amicus curiae United States. Also on the brief were Billy
J. Williams, Kelly Zusman, Jeffrey Bossert Clark, and Eric
Grant.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
ORTEGA, P. J.
Reversed and remanded with instructions to dismiss
petitions.
180 TPC, LLC v. Water Resources Dept.
ORTEGA, P. J.
This case involves final orders issued in 2016 and
2017 by an Oregon Water Resources Department (OWRD)
watermaster1 which curtailed petitioners’2 use of their sur-
face water right in the Williamson River, which is located in
the Klamath Basin, in favor of senior water rights held by
the Klamath Tribes and the United States as trustee for the
Klamath Tribes. The parties’ water rights were established
as determined claims in a 2013 OWRD final order that
adjudicated water right claims in the Klamath Basin. That
2013 adjudication order is currently on review in Klamath
County Circuit Court. To settle contests to petitioners’ water
right claim brought by the United States and the Klamath
Tribes in that adjudication, petitioners, the United States,
and the Klamath Tribes entered into a stipulation, which
OWRD also signed (the Hyde Agreement). The OWRD adju-
dicator incorporated part of the Hyde Agreement into the
2013 adjudication order.
In 2016 and 2017, the Klamath Tribes made a call
for water to the district watermaster, which led to the orders
at issue in this case that curtailed petitioners’ use of their
water right. Petitioners sought judicial review of those cur-
tailment orders in Marion County Circuit Court, arguing
that a provision in the Hyde Agreement that the adjudicator
did not incorporate into the 2013 adjudication order prohib-
ited OWRD from issuing the curtailment orders. Petitioners
did not join the Klamath Tribes or the United States in their
petitions, and the Klamath Tribes intervened for the lim-
ited purpose of seeking to dismiss the action for failure to
join the Tribes. Marion County Circuit Court permitted the
Tribes to intervene but denied the Tribes’ motion to dismiss
and, on cross-motions for summary judgment by petitioners
and OWRD, concluded that OWRD was subject to the pro-
vision in the Hyde Agreement, as urged by petitioners, and
remanded the curtailment orders.
1
OWRD and the watermaster, in her official capacity, are both named par-
ties in this case. For ease of reference, we refer only to OWRD throughout this
opinion.
2
The parties have stipulated to the dismissal of petitioner TPC, LLC, as a
respondent on appeal, and it is no longer a party to this case. Our use of the term
“petitioners” throughout this opinion refers only to the Hyde petitioners.
Cite as 308 Or App 177 (2020) 181
OWRD appeals from that judgment, arguing that it
is not bound by the Hyde Agreement. The Klamath Tribes
also appeal, arguing that Marion County Circuit Court
erred in denying their motion to dismiss. Additionally, the
United States filed an amicus brief on appeal, taking up
the argument made by OWRD below that Marion County
Circuit Court lacked subject matter jurisdiction over peti-
tioners’ claim, because, under ORS chapter 539, exclusive
jurisdiction for the particular claim they asserted rests in
Klamath County Circuit Court, where the Klamath Basin
adjudication order is currently being litigated by the par-
ties in this case. We conclude that Marion County Circuit
Court did not have subject matter jurisdiction over peti-
tioners’ claim and, thus, reverse and remand with instruc-
tions to Marion County Circuit Court to dismiss the
petitions.
The relevant background facts are undisputed. In
2013, under the process set forth in ORS chapter 539, the
director of OWRD, through an adjudicator, issued a final
order that adjudicated about 730 surface water right claims
in the Klamath River Basin (the KBA order). The Klamath
River Basin adjudication (the KBA or the adjudication)
included surface water right claims in the Williamson River
and its tributaries, which feed into Upper Klamath Lake.3
Petitioners’ determined claim, Claim 33, is “at and near the
headwaters of the Williamson River” with a priority date in
1864. The determined claims of the Klamath Tribes and the
United States, as trustee for the Klamath Tribes, include
Claims 625 through 629 and 631 through 640, which are
for instream flows in the Williamson River and its tributar-
ies, and Claim 623, which is for maintenance of minimum
water levels in Klamath Marsh, into which the Williamson
River flows. All of those claims have a priority date of “time
3
The KBA order describes the Williamson River:
“The Williamson River rises in large springs along the toe of Booth
Ridge in the northeasterly portion of the basin. It flows northward for some
distance before turning west and entering Klamath Marsh. From Klamath
Marsh it flows southerly into Upper Klamath Lake. Between Klamath Marsh
and Upper Klamath Lake, the Williamson has two significant tributaries.
The first, Spring Creek, which enters the Williamson above the town of
Chiloquin, exhibits almost constant flow; the second, Sprague River, joins
the Williamson just sought of Chiloquin.”
182 TPC, LLC v. Water Resources Dept.
immemorial.” 4 Thus, under the KBA order, the Klamath
Tribes’ water rights have seniority over petitioners’ water
right.5 Many parties to the adjudication filed exceptions to
the KBA order, including petitioners, the United States,
and the Klamath Tribes, which are discussed below. Those
exceptions are currently on review in Klamath County
Circuit Court.
During the adjudication, the United States and the
Klamath Tribes contested petitioners’ water right claim
(Claim 33). In 2005, petitioners, the United States, the
Klamath Tribes, and OWRD signed a stipulation to settle
those contests to petitioners’ claim—the Hyde Agreement.
The Hyde Agreement was a filed document in that contested
case and is headed with the caption of the contested case,
case number, claim number, contest numbers, and the plead-
ing title, “Stipulation to Resolve Contests.” The opening line
of the document states, “Claimants Dayton and Gerda Hyde
(‘Claimants’), Contestant United States, and Contestant
Klamath Tribes (‘Tribes’), collectively referred to as the
‘Parties,’ and the Oregon Water Resources Department
(‘OWRD’), stipulate and agree as follows.” (Footnote omit-
ted.) After setting forth stipulated facts in section A, the
Hyde Agreement provides, in part, in section B:
“1. (a) Claimants, Contestants and OWRD agree
that Claim 33 should be approved by the Adjudicator as
described below: [setting out a description of the water
right]
“(b) The exercise of the water right described herein
is subject to maintaining a flow of at least one-half of the
4
The Klamath Tribes’ water rights to instream flow in the Williamson River
watershed to support hunting and fishing were confirmed in its 1864 Treaty with
the United States and “necessarily carry a priority date of time immemorial.”
United States v. Adair, 723 F2d 1394, 1414 (9th Cir 1983), cert den, 467 US 1252
(1984).
5
Once the KBA order issued, OWRD had regulatory authority over the
adjudicated claims, including authority to regulate junior water users in favor
of senior water users, as required by Oregon law, which has adopted the prior
appropriation system. See, e.g., ORS 540.045(1) (describing watermasters’ reg-
ulation duties); ORS 539.130(4) (providing that OWRD’s determination orders
are “in full force and effect”); ORS 539.170 (providing that, pending the circuit
court judgment, division of water on the stream shall be made in accordance with
OWRD’s determination orders).
Cite as 308 Or App 177 (2020) 183
total flow in the Williamson River upstream of the current
north boundary of Claimants’ property * * *. * * *
“(c) Claimants’ use of their water right upstream of
the current north boundary of Claimants’ property * * *
will not be curtailed in favor of any senior water right now
held or later acquired by the United States or the Klamath
Tribes. The United States and the Klamath Tribes agree
that they will not place any call on the Williamson River
that will result in the curtailment of Claimants’ use of
water in excess of the principles set forth in paragraph
B.1.(b), above. To ensure implementation of this provi-
sion, the United States and the Klamath Tribes hereby
request that the Adjudicator’s Findings of Fact and Order
of Determination place a condition implementing the prin-
ciples set forth in paragraph B.1.(b), above, thereby pre-
venting exercise, upstream of the current north boundary
of Claimants’ property, * * * of any rights adjudicated in
favor of the United States on behalf of the Klamath Tribes
in Claim No. 633. The United States and the Klamath
Tribes also request that the same provision be placed on
any rights adjudicated in favor of the Klamath Tribes with
respect to the portion of the Klamath Tribes’ Claim No. 612
that incorporates Claim 633 filed by the United States on
behalf of the Klamath Tribes.
“(d) Claimants and Contestants anticipate that it will
be unnecessary to invoke the provisions of paragraph
B.1.(b), above, due to the Conservation Easement discussed
below and attached hereto as Exhibit 2. However, to the
extent that one or more of the Parties determines that reg-
ulation of the river is necessary, such regulation will be
conducted subject to the availability of the watermaster to
carry out this work. * * *
“(e) Claimants agree to grant to the Tribes a Con-
servation Easement on the property above the bound-
ary described in paragraph B.1.(b). * * * Enforcement of
any provision of the Conservation Easement will be done
through proceedings of the Easement itself, and will not
be cause for filing exceptions in the Circuit Court to the
Adjudicator’s findings of fact and order of determination.
***
“(f) Claimants also hold Water Right Certificates Nos.
37002 and 8615. Claimants do not intend to exercise their
water rights under these Certificates in a manner so as to
184 TPC, LLC v. Water Resources Dept.
cause depletion of water in the Williamson River in amounts
greater than those identified in paragraph B.1.(b). To
ensure that such a result does not occur, Claimants hereby
file Affidavits of Diminution with OWRD, and request that
Certificate Nos. 37002 and 8615 be diminished in accor-
dance therewith. * * *
“(g) Claimants also agree that they will not exercise
any water rights that they may hereafter acquire or receive
in such a manner so as to cause depletion of water in the
Williamson River in amounts greater than those identi-
fied in paragraph B.1.(b). To ensure that such a result does
not occur, claimants hereby agree to make appropriate
requests to OWRD to place conditions on such right(s) nec-
essary to prevent such exercise.
“2. The Parties agree that under the terms and provi-
sions of this Stipulation, the Contests have been satisfacto-
rily resolved, and such resolution ends the need for further
proceedings before the Administrative Law Judge on the
Contests.
“3. Based on the Stipulation of the Parties that Claim
33 and the Contests can be resolved without the need for
further proceedings, OWRD adjudication staff hereby rec-
ommends to the Adjudicator that Claim 33 be withdrawn
from the Office of Administrative Hearings. OWRD adjudi-
cation staff further recommends that Claim 33 be approved
in the Findings of Fact and Order of Determination issued
by the Adjudicator in accordance with the terms of Section
B.1. above.
“4. If the Finding[s] of Fact and Order of Determination
issued by the Adjudicator for Claim 33 does not conform to
the terms set forth in paragraph B.1., above, the Parties
reserve any rights they may have to file exceptions to the
Findings of Fact and Order of Determination as to Claim
33 in the Circuit Court for Klamath County, and reserve
any rights they may have to participate in any future pro-
ceedings authorized by law concerning Claim 33.”
In the determination order for Claim 33, the adju-
dicator determined with respect to the Hyde Agreement as
follows:
“The [Hyde] Agreement executed between the Claimants,
OWRD, the United States of America, and the Klamath
Tribes is adopted and incorporated as if set forth fully
Cite as 308 Or App 177 (2020) 185
herein, with the exception of paragraphs B.1.(c), B.1.(d),
B.1.(e), B.1.(f), and B.1.(g); these paragraphs are not perti-
nent to the determination of a water right claim.”
Thus, the KBA order established petitioners’ water right as
described in the Hyde Agreement in B.1.(a) and with the
limitation set out in B.1.(b), which was incorporated into the
determined water right as a “further limitation.” However,
none of the other paragraphs in section B.1. were incorpo-
rated into any water right established under the KBA order.
As noted above, petitioners, the United States,
and the Klamath Tribes filed exceptions to the KBA order.
Petitioners filed exceptions to the Tribes’ established claims
in the Williamson River, taking exception to the omission
of a limitation on the Tribes “to not exercise the rights held
or acquired by [the Tribes] in a manner that will curtail
[petitioners’] exercise of the rights held by them as described
and limited in” the Hyde Agreement. As relevant here, the
United States filed exceptions to petitioners’ established
claim, excepting to parts of the determination as unsup-
ported in the record, and the Tribes filed a request to also be
heard on the United States’ exception. The exceptions to the
KBA order are currently being litigated in Klamath County
Circuit Court.
In 2016 and 2017, the Klamath Tribes called on the
OWRD watermaster for the district to enforce the Tribes’
senior water rights in the upper Williamson River and
Klamath Marsh, because instream flows and water levels
in the marsh were below or projected to fall below the estab-
lished levels for the Tribes’ claims. See ORS 540.045 (duties
of watermasters). The watermaster then issued final orders
in other than contested cases in 2016 and 2017 that ordered
petitioners to cease all use of water from the Williamson
River. Those are the orders at issue in the case. Petitioners
sought review of those orders in Marion County Circuit
Court under ORS 536.0756 and ORS 183.484, which governs
6
ORS 536.075 provides, in part:
“(1) Any party affected by a final order other than contested case issued
by the Water Resources Commission or Water Resources Department may
appeal the order to the Circuit Court of Marion County or to the circuit court
of the county in which all or part of the property affected by the order is
186 TPC, LLC v. Water Resources Dept.
judicial review of final orders in other than contested cases.
Petitioners sought review on the basis that OWRD was
barred by the Hyde Agreement from enforcing the Klamath
Tribes’ call for water.7 We describe petitioners’ petitions in
more detail below in our analysis.
The Klamath Tribes filed a limited motion to inter-
vene for the purpose of bringing a motion to dismiss for fail-
ure to join the Tribes in the petitions as a necessary and
indispensable party that cannot be joined due to its sover-
eign immunity. Marion County Circuit Court granted that
limited motion to intervene, but denied the Klamath Tribes’
motions to dismiss, concluding that the Tribes are not an
indispensable party.8 OWRD also brought a motion to dis-
miss, arguing that Marion County Circuit Court lacked
subject matter jurisdiction, because exclusive jurisdiction
rested in Klamath County Circuit Court, where the excep-
tions to the KBA order were being heard. Marion County
Circuit Court denied that motion.
During the litigation of the Klamath Tribes’ motion
to dismiss, petitioners for the first time asserted that the
Hyde Agreement was an enforceable “rotation agreement”
under ORS 540.150 and OAR 690-250-0080.9 As a result,
situated. The review shall be conducted according to the provisions of ORS
183.484, 183.486, 183.497 and 183.500. * * *
“* * * * *
“(7) The provisions of this section shall not apply to any proceeding
under ORS 537.670 to 537.695 or ORS chapter 539.”
7
Petitioners also alleged a claim for relief on the basis that OWRD’s enforce-
ment of the Klamath Tribes’ call for water was futile under OAR 690-250-0020.
Petitioners dropped that claim from both of their petitions.
8
Petitioners’ 2016 and 2017 petitions for judicial review of the curtailment
orders raised nearly identical claims, and the Klamath Tribes brought identical
motions to intervene and to dismiss in those proceedings. Marion County Circuit
Court later consolidated the review of the 2016 and 2017 curtailment orders,
resulting in a general judgment for both matters.
9
ORS 540.150 provides:
“To bring about a more economical use of the available water supply,
water users owning lands to which are attached water rights may rotate in
the use of the supply to which they may be collectively entitled. Whenever two
or more water users notify the watermaster that they desire to use the water
by rotation, and present a written agreement as to the manner of rotation,
the watermaster shall distribute the water in accordance with the written
agreement.”
Cite as 308 Or App 177 (2020) 187
the Tribes provided notice to the OWRD watermaster that
it was voluntarily terminating any such claimed rotation
agreement, as allowed by OAR 690-250-0080(2). The United
States also provided an acknowledgement of the Tribes’ ter-
mination and provided its own notice of termination to the
watermaster.
Petitioners and OWRD then filed cross-motions
for summary judgment. OWRD reasserted its argument
that Marion County Circuit Court lacked subject matter
jurisdiction over petitioners’ claim and, separately, argued
that OWRD could not be compelled to enforce a provision
in the Hyde Agreement. Petitioners argued that the Hyde
Agreement was a written agreement for the distribution of
water (a “rotation agreement”) under ORS 540.150 that the
watermaster had to follow and that OWRD had agreed in
writing to not enforce a call for water by the Tribes against
petitioners. Marion County Circuit Court denied OWRD’s
motion and granted petitioners’ motion. That court entered
a general judgment that provided, in relevant part:
“2. The Court has jurisdiction, pursuant to ORS
183.484, to review the 2016 and 2017 Final Orders
OAR 690-250-0080 provides:
“(1) Appropriators may rotate use of the supply to which they may be
collectively entitled. The nature of potential agreements are subject to the
limitations in section (3) of this rule.
“(2) An agreement shall identify the duration of the agreement which
shall be no less than one irrigation season. The agreement shall not be ter-
minated within an irrigation season, and the rotation agreement shall be
signed by all participants and dated. A copy of the agreement shall be filed
with the watermaster for the area. Unless the rotation agreement provides
otherwise, any member of the agreement may notify the watermaster after
the end of the irrigation season, and before the beginning of the next season’s
use, that they are terminating the agreement.
“(3) A watermaster shall distribute water only under those enforceable
agreements that include the provisions of section (2) of this rule. A water-
master shall not implement a rotation agreement that violates existing water
statutes, court decrees, instream water rights, minimum flows, other rules
of the Commission, or interferes with the rights of any appropriator not a
member of such agreement. If distribution of water by the rotation agreement
requires substantially more of the watermaster’s time than distribution
among the relative priorities, then the watermaster may require payment by
the appropriators for an assistant watermaster, as described in ORS 540.100.
“(4) The agreement may contain language describing how a call from
an appropriator or minimum flow senior to one or more appropriators in the
rotation will be honored.”
188 TPC, LLC v. Water Resources Dept.
providing that Petitioners could not divert water from the
Williamson River in 2016 and 2017.
“3. OWRD is a party to the Hyde Agreement and is
bound by its terms.
“4. The Hyde Agreement qualifies as a rotation agree-
ment pursuant to ORS 540.150 and OAR 690-250-0080.
“5. As a contract signed by the agency, the Hyde
Agreement is a final order as defined in ORS 183.310(6)(b).
“6. The Hyde Agreement is enforceable by OWRD, both
(1) as a rotation agreement pursuant to ORS 540.150 and
OAR 690-250-0080 and, independently, (2) as a final order
under ORS 183.310(6)(b) that is binding on OWRD.
“* * * * *
“8. The Final Orders are unlawful because they violate
the terms of the Hyde Agreement.
“* * * * *
“13. The 2016 and 2017 Final Orders are hereby
REMANDED to OWRD WITH INSTRUCTIONS that
OWRD comply with the terms of the Hyde Agreement,
such that, so long as the Hyde’s use of their water rights
does not exceed one-half of the total flow in Williamson
River upstream of the north boundary of Claimants’ prop-
erty, OWRD will not enforce any water rights now held
or later acquired by the United States or the Klamath
Tribes, except as provided for under Section B.1.(d) of the
Hyde Agreement, if enforcement of such water rights would
result in curtailment of the Hyde’s use of their water right
upstream of the current north boundary of their property,
as described in the Hyde Agreement.”
In addressing the appeal of that judgment, we begin
with the issue of subject matter jurisdiction. “Subject matter
jurisdiction is the authority to deal with the general subject
involved.” State v. Murga, 291 Or App 462, 466, 422 P3d 417
(2018). “Subject matter jurisdiction exists when the consti-
tution, the legislature, or the common law has directed a
specific court to do something about a specific kind of dis-
pute.” Id. “Circuit courts have subject matter jurisdiction
over all actions, unless a statute or rule of law divests them
of jurisdiction.” Id. A lack of subject matter jurisdiction can
be raised at any time. Id. at 465. “If a court lacks subject
Cite as 308 Or App 177 (2020) 189
matter jurisdiction over a claim brought before it, it must dis-
miss the proceeding.” Kleikamp v. Board of Commissioners
of Yamhill County, 301 Or App 275, 282, 455 P3d 546 (2019).
Here, the issue is whether Marion County Circuit
Court lacked subject matter jurisdiction because exclusive
jurisdiction to decide the precise issue raised by the peti-
tions for judicial review of the curtailment orders rested
in Klamath County Circuit Court, where the KBA judicial
review was already ongoing. To address that issue, we first
provide an overview of the applicable statutory provisions.
As described, this case involves enforcement of the
distribution of water on the Williamson River, which was
done through the watermaster’s curtailment orders, which,
in turn, were OWRD final orders in other than contested
cases. ORS 536.075(1). For such final orders, ORS 536.075
provides that a “party affected by a final order other than
contested case” may appeal that order in Marion County
Circuit Court, or in the court where the affected property
is located, and that “[t]he review shall be conducted accord-
ing to the provisions of ORS 183.484, 183.486, 183.497 and
183.500.” ORS 536.075(1). ORS 536.075(5) provides that the
filing of the petition for judicial review stays enforcement of
the order, “unless the commission or the department deter-
mines that substantial public harm will result if the order is
stayed.” The review provided for in ORS 536.075 “shall not
apply to any proceeding under ORS 537.670 to 537.695 or
ORS chapter 539.” ORS 536.075(7).
The KBA and judicial review of the KBA order are
governed by ORS chapter 539, which provides the procedure
for general stream adjudications, such as the KBA. See ORS
539.005(1) (“The Legislative Assembly declares that it is
the purpose of this chapter to set forth the procedures for
carrying out a general stream adjudication in Oregon.”). As
such, the determinations from the KBA cannot be reviewed
under the review mechanism provided for in ORS 536.075.
Instead, ORS chapter 539 sets out the exclusive judicial
review mechanism for such an order. As part of the notice
OWRD must provide to claimants or other parties of the
right to inspect evidence for a general stream adjudica-
tion, the OWRD “shall also state in the notice the county
190 TPC, LLC v. Water Resources Dept.
in which the determination will be heard by the circuit
court; provided, that the cause shall be heard in the county
in which the stream or some part thereof is situated.” ORS
539.090. Then, after the OWRD issues an order of determi-
nation of the water rights to the stream, such as the KBA
order, OWRD is required to gather all the original evidence
and file it with the order in the circuit court “wherein the
determination is to be heard.” ORS 539.130(1). Upon that
filing, that court is to issue an order for a hearing on the
determination, notice of which OWRD is to provide to all
claimants. ORS 539.130(2) - (3). Unlike for judicial review
under ORS 536.075, for stream adjudications under ORS
chapter 539, “[t]he determination of the [OWRD] shall be
in full force and effect from the date of entry in the records
of [OWRD], unless [stayed by a bond under] ORS 539.180.”
ORS 539.130(4).
ORS 539.150 governs the court proceedings to
review OWRD’s determination. It provides in relevant part
that “the proceedings shall be like those in an action not
triable by right to a jury” and, “[a]t any time prior to the
hearing provided for in ORS 539.130, any party or parties
jointly interested may file exceptions in writing to the find-
ings and order of determination, or any part thereof, which
exceptions shall state with reasonable certainty the grounds
and shall specify the particular paragraphs or parts of the
findings and order excepted to.” ORS 539.150(1). “After final
hearing the court shall enter a judgment affirming or modi-
fying the order of the director as the court considers proper,
* * * [and] [a]n appeal may be taken to the Court of Appeals
from the judgment in the same manner and with the same
effect as in other cases in equity.” ORS 539.150(4).
ORS chapter 539 further provides that, “[w]hile
the hearing of the order of the Water Resources Director
is pending in the circuit court, and until a certified copy of
the judgment, order or decree of the court is transmitted to
the director, the division of water from the stream involved
in the appeal shall be made in accordance with the order of
the director.” ORS 539.170. Thus, under ORS chapter 539,
unlike under ORS 536.075, the KBA order and the deter-
minations made in that order are not automatically stayed
Cite as 308 Or App 177 (2020) 191
pending judicial review and are required to be enforced by
the OWRD until the circuit court judgment issues. See also
ORS 539.130(4) (“The determination of the [OWRD] shall be
in full force and effect from the date of entry in the records
of [OWRD], unless [stayed by a bond under] ORS 539.180.”).
Here, petitioners filed petitions for judicial review
in Marion County Circuit Court for review of the curtail-
ment orders, which were final orders in other than contested
cases. As such, jurisdiction to review those orders typically
lies with Marion County Circuit Court under ORS 536.075,
which is what that court held in this case. That, however,
does not resolve the jurisdictional issue here presented,
which is whether the subject matter of the petitions herein
was nonetheless within the scope of the exclusive jurisdic-
tion of Klamath County Circuit Court, as provided in ORS
chapter 539, because petitioners’ claims were bound up with
the KBA, a proceeding under ORS chapter 539.10
We first recognize that that question presents an
issue of subject matter jurisdiction that is different from
how we would typically discuss subject matter jurisdiction
in the circuit courts, which are courts of general jurisdic-
tion. That is so, because the statutes create exclusive juris-
diction by way of a special proceeding in a particular circuit
court, instead of by way of a forum that is distinct from the
circuit courts. Under ORS chapter 539, once a stream adju-
dication is initiated, the special judicial review mechanism
10
We note that subject matter jurisdiction is the appropriate lens with which
to view this case and not venue. “Jurisdiction refers to a court’s authority to act
whereas ‘venue concerns the particular location where it is appropriate for the
court to exercise that authority.’ ” Dept. of Human Services v. R. M. S., 280 Or App
807, 810, 383 P3d 417 (2016) (quoting Kohring v. Ballard, 355 Or 297, 312, 325 P3d
717 (2014)). ORS chapter 539 contains both jurisdictional and venue aspects—
that is, it both creates an exclusive judicial process in a particular circuit court
for the stream adjudication and provides which circuit court is the appropriate
location for that judicial process to occur. See generally ORS chapter 539 (provid-
ing exclusive process for stream adjudications); see also ORS 536.075(7) (remov-
ing stream adjudications from circuit court judicial review under ORS 536.075);
ORS 539.090 (providing that the proper location for the circuit court determina-
tion in a stream adjudication is the county in which the stream is located). This
case, however, is not about whether petitioners chose the proper location for their
claim—an issue of venue. It is about whether Marion County Circuit Court could
hear that claim at all—an issue of subject matter jurisdiction—because that
claim fell within the exclusive stream adjudication process for which jurisdiction
had been established in Klamath County Circuit Court under ORS chapter 539.
192 TPC, LLC v. Water Resources Dept.
that is required by that adjudication process is noticed to
occur in a particular, identified circuit court. ORS 539.090.
And, once that particular court is identified, subject mat-
ter jurisdiction for that stream adjudication can only be in
that identified court, ORS 539.130, because, at the same
time, the legislature has divested all of the circuit courts
of the general judicial review mechanism for agency orders,
ORS 536.075(7), with respect to any proceeding under ORS
chapter 539. Thus, to state it more simply, under ORS
chapter 539, exclusive subject matter jurisdiction for a
stream adjudication is vested in a particular circuit court
once the stream adjudication process under that chapter is
initiated.
In this case, the parties appear to generally agree
that Klamath County Circuit Court has exclusive subject
matter jurisdiction to review the KBA order. We also con-
clude that that is the correct view under the controlling stat-
utes, as explained above. The more critical issue, and the
one on which the parties do not agree, is whether the subject
matter of this case, which was initiated in Marion County
Circuit Court as a judicial review of an agency order in an
other than contested case, nonetheless falls within Klamath
County Circuit Court’s exclusive subject matter jurisdiction
in the KBA. Our case law in the land use context provides
useful guidance for answering that question.
There are two parallel review mechanisms in the
land use context that can present a subject matter juris-
diction issue akin to the one presented here. Under ORS
197.825, jurisdiction over land use matters is divided
between the Land Use Board of Appeals (LUBA) and the
circuit courts. LUBA has exclusive jurisdiction to review
“any land use decision or limited land use decision of a local
government.” ORS 197.825(1). The circuit courts retain
jurisdiction of enforcement actions to enforce LUBA’s orders
and for “declaratory, injunctive or mandatory relief,” to
enforce a comprehensive plan or land use regulation. ORS
197.825(3). “In effect, ORS 197.825 draws a ‘jurisdictional
line’ between ‘the land use decision and review process and
the enforcement process.’ ” Flight Shop, Inc. v. Leading Edge
Aviation, Inc., 277 Or App 638, 643-44, 373 P3d 177 (2016)
(quoting Clackamas County v. Marson, 128 Or App 18, 22,
Cite as 308 Or App 177 (2020) 193
874 P2d 110, rev den, 319 Or 572 (1994)). Although not a per-
fect analogy, that line is similar to the line we must draw in
this case—between the exclusive review process for stream
adjudications under ORS chapter 539 and review of orders
in other than contested cases under ORS 536.075, such as
the curtailment orders in this case.
In determining where to draw that line in the land
use context, we have held that a circuit court lacks subject
matter jurisdiction to decide an enforcement action when the
substance of the claim brought involves issues that are sub-
ject to an ongoing land use decisional process, or could have
been brought in a prior land use decisional process. In Flight
Shop, Inc., the defendant had sought and obtained county
approval for a refueling station. The plaintiff appealed that
approval to LUBA, which remanded for further proceedings.
While those proceedings were ongoing, the plaintiff sought
enforcement of the land use regulations against the defen-
dant in circuit court seeking injunctive relief and statutory
fines on the basis that the defendant did not have required
approval for the refueling station, and, separately, to force
removal of a canopy built over the fuel tanks, which was
not made part of the site plan. 277 Or App at 646, 648. The
circuit court determined that it lacked subject matter juris-
diction over the enforcement action, and we agreed.
We explained that the dispute over the approval
of the refueling station was pending before the county
and could again be appealed to LUBA. As such, it was a
land use decision matter for the county or LUBA, but not
the circuit court. Id. at 646. We noted that the plaintiff’s
requested remedies of an injunction to prevent defendant
from operating its fueling station and an order to remove
the fuel tanks “underscore the impropriety of circuit court
intervention,” because whether or not such remedies would
be proper would have required predicting the outcome of
the land use decisional process. Id. at 646-47. Similarly, we
concluded that the circuit court did not have jurisdiction to
consider the canopy, because it was built after the defendant
obtained a building permit for it—a land use decision that
the plaintiff could have challenged when it was issued on the
basis that it was not made part of the defendant’s site plan.
Id. at 648.
194 TPC, LLC v. Water Resources Dept.
Similarly, in Rogue Advocates v. Board of Comm. of
Jackson County, 277 Or App 651, 661, 372 P3d 587 (2016),
rev dismissed, 362 Or 269 (2017), we concluded that the cir-
cuit court lacked subject matter jurisdiction over a claim
in a land use enforcement action that sought injunctive
relief to halt “illegal” operations. In that case, “[a]t the time
that plaintiff filed their enforcement action, the land use
decisional process had yet to determine * * * which activi-
ties were unlawful alterations of a lawful nonconforming
use and which of the structures were unlawful for want
of a floodplain development permit.” Id. The plaintiff thus
sought to interject the circuit court into determining what
was an “illegal” operation, which was part of the ongoing
land use decisional process.
Returning to this case, to determine whether
Marion County Circuit Court had subject matter jurisdiction
to review petitioners’ claim, we begin with the allegations
and requested relief in the petitions as viewed through the
lens of Oregon’s water law. Under Oregon’s prior appropria-
tion system, regulating water rights depends on the priority
date of respective water rights. When there is a shortage
of water, the senior water right holder is entitled to receive
their entire share of water before the next most senior water
right holder can receive their share, and so on. See Benz v.
Water Resources Commission, 94 Or App 73, 81, 764 P2d 594
(1988) (“[U]nder the law of prior appropriations, see, e.g., ORS
537.120, a senior appropriator who applies water to a benefi-
cial use and thereafter continues to do so holds a water right
that is superior to any water right obtained by a subsequent
junior appropriator.”). This system of water regulation is
enforced though OWRD’s watermasters, who, among other
duties, must “[r]egulate the distribution of water among the
various users of water from any natural surface or ground
water supply in accordance with the users’ existing water
rights of record in the Water Resources Department.” ORS
540.045(1)(a) (emphasis added); see also ORS 540.045(4) (“As
used in this section, ‘existing water rights of record’ includes
all completed permits, certificates, licenses and ground
water registration statements filed under ORS 537.605 and
related court decrees.”); ORS 539.170 (“While the hearing
of the order of the Water Resources Director is pending in
Cite as 308 Or App 177 (2020) 195
the circuit court, and until a certified copy of the judgment,
order or decree of the court is transmitted to the director,
the division of water from the stream involved in the appeal
shall be made in accordance with the order of the director.”).
In accordance with that duty, the OWRD, through the dis-
trict watermaster, issued the curtailment orders in this
case.
In their second amended petition challenging the
2016 order, petitioners asserted a single claim for relief
based on the Hyde Agreement, which was attached as an
exhibit. That claim for relief alleged, in relevant part:
“20. The [Hyde Agreement], Exhibit B, prohibits the
exercise of the water rights that [OWRD], through issuance
of the Final Orders, are enforcing.
“21. [OWRD] ha[s] made no investigation of the cur-
rent flow of the Williamson River on Petitioners’ land, or
the flow of the Williamson River at the point where it exits
Hyde Partnership’s land. [OWRD] ha[s] failed to make any
determination of whether under the terms of the [Hyde
Agreement] the Klamath Tribes and United States have a
right to make a call for enforcement of the Order. [OWRD]
ha[s] failed to make any determination that [OWRD] ha[s]
the authority under the terms of Oregon law and the [Hyde
Agreement] to enforce the water rights of the Klamath
Tribes and United States in a manner that prevents [peti-
tioners] from diverting and putting to beneficial use one
half of the total flow of the Williamson River.
“22. Pursuant to ORS 540.150, OAR 690-240-0080,
[governing “rotation agreements”] and the common law,
[OWRD is] required to distribute water in accordance
with written agreements between water users * * * [and]
[p]ursuant to those authorities, [OWRD is] prohibited from
enforcing the Klamath Tribes’ and United States’ provi-
sional water rights in a manner inconsistent with the
[Hyde Agreement].
“23. [OWRD’s] actions in issuing the Final Orders and
alleged enforcement of the water rights of the Klamath
Tribes and United States in the Upper Williamson River
violate the [Hyde Agreement] between the parties and
OWRD, was outside the range of discretion delegated to the
agency by law; and/or inconsistent with an agency rule, an
officially stated agency position, or a prior agency practice;
196 TPC, LLC v. Water Resources Dept.
and/or otherwise in violation of a statutory provision; and/
or not supported by substantial evidence.”
In their amended petition challenging the 2017
order, petitioners also asserted a single claim for relief
based on the Hyde Agreement, which was attached as an
exhibit. That petition alleged the identical allegations
found in paragraphs 20 and 21 set out above. Additionally,
the petition alleged that OWRD’s “actions in issuing the
Final Orders and alleged enforcement of the water rights
of the Klamath Tribes and United States in the Upper
Williamson River violate the [Hyde Agreement] between
the parties and OWRD, and is not supported by substantial
evidence.”
Petitioners sought substantively the same relief in
both petitions, which was described in the 2016 petition as
follows:
“A. A declaration that the Final Orders and the enforce-
ment of the Final Orders violated the terms of the [Hyde
Agreement], was outside the range of discretion delegated
to the agency by law; and/or inconsistent with an agency
rule, an officially stated agency position, or a prior agency
practice; and/or otherwise in violation of a statutory provi-
sion; and/or not supported by substantial evidence;
“B. A judgment reversing, setting aside, and/or vacat-
ing the Final Orders;
“C. An injunction prohibiting [OWRD] from enforcing
any call for water to fulfill the United States’ provisional
water rights, when the effect of the enforcement of those
water rights violates, or would violate, the terms of the
[Hyde Agreement].
“D. An award of Petitioners’ reasonable attorney fees
and costs pursuant to ORS 183.497;
“E. And such other relief the Court deems just and
equitable.”
Petitioners additionally sought in their 2017 petition “[a]n
injunction prohibiting [OWRD] from enforcing a call for
water to fulfill the United States’ water right for minimum
elevation levels for the Klamath Marsh.”
Cite as 308 Or App 177 (2020) 197
The core claim in the petitions is that OWRD could
not enforce the United States’ and Klamath Tribes’ water
rights according to the terms of those rights in the KBA
order, but rather was required to enforce them, if at all, as
set out in paragraph B.1.(c) (the no-call provision) of the Hyde
Agreement. The relief petitioners sought further lays bare
that core claim, because petitioner sought declarations and
injunctions prohibiting OWRD from enforcing the United
States’ and Klamath Tribes’ water rights in any manner
other than according to the terms of the Hyde Agreement.
That claim, and its requested relief, however, is
irreconcilably bound up with the KBA, because it required
Marion County Circuit Court to decide whether the Hyde
Agreement placed a limitation on the Klamath Tribes’
KBA-determined water right claims. The KBA adjudicator
had already rejected that notion, concluding that the no-call
provision in the Hyde Agreement was “not pertinent to the
determination of a water right claim.” That decision is cur-
rently on review before Klamath County Circuit Court in its
review of the KBA order.
That petitioners were asking Marion County Circuit
Court to interject itself into the water right determination
process under ORS chapter 539 is made more apparent by
the statutes that OWRD is required to follow pending the
KBA order judicial review process. OWRD, and its water
masters, are required by statute to regulate the distribu-
tion of water according to the water rights on record and
the OWRD’s stream determination orders. ORS 540.045(1);
ORS 539.170. Outside of a rotation agreement, as provided
in ORS 540.150, the statutes do not allow OWRD to regu-
late the distribution of water according to anything that is
not part of the water rights on record (as defined by ORS
540.045(4)) and stream determination orders, of which the
no-call provision in the Hyde Agreement was not. Thus,
petitioners were calling on Marion County Circuit Court to
make water right determinations with respect to the United
States’ and Klamath Tribes’ water rights claims made in
the KBA, which it could not do, because the jurisdiction to
do so rests solely with Klamath County Circuit Court under
ORS chapter 539.
198 TPC, LLC v. Water Resources Dept.
Further, even if petitioners’ allegation in its 2016
petition that the Hyde Agreement is a rotation agreement11
is separately parsed out from their single claim, that allega-
tion does not lead to a different result, because the allegation
contains no facts that would bring the claim within Marion
County Circuit Court’s subject matter jurisdiction, having
only made an assertion of law—that the Hyde Agreement
is an enforceable rotation agreement. The alleged facts to
support that claim can only be found within the four cor-
ners of the Hyde Agreement, which was attached to the peti-
tion. The text of the Hyde Agreement is plainly not separa-
ble from the KBA, whether it is characterized as a rotation
agreement or something else.
To begin with, the Hyde Agreement was a filed
document in the contested case for petitioners’ Claim 33
in the KBA, having the case caption—which was entitled
“Stipulation to Resolve Contests”—as the heading for the
agreement. The heart of the document, section B, set forth
the agreement. As discussed in the fact section, section B.1.(a)
set forth the agreement that Claim 33 should be approved
by the adjudicator as described in the Hyde Agreement, and
section B.1.(b) set forth the agreed limitations on petition-
ers’ exercise of their water right. Those two provisions were
incorporated into the KBA order as to petitioners’ deter-
mined water right claim, which is currently subject to pend-
ing exceptions before Klamath County Circuit Court.
Section B.1.(c), also called the no-call provision and
the basis of petitioners’ claim in this case, provided that it
was to be implemented by requesting that the adjudicator
adopt a limitation on the exercise of the United States’ and
Klamath Tribes’ Claim 633:
“(c) Claimants’ use of their water right upstream of
the current north boundary of Claimants’ property * * *
11
Again, ORS 540.150 provides:
“To bring about a more economical use of the available water supply,
water users owning lands to which are attached water rights may rotate in
the use of the supply to which they may be collectively entitled. Whenever two
or more water users notify the watermaster that they desire to use the water
by rotation, and present a written agreement as to the manner of rotation,
the watermaster shall distribute the water in accordance with the written
agreement.”
Cite as 308 Or App 177 (2020) 199
will not be curtailed in favor of any senior water right now
held or later acquired by the United States or the Klamath
Tribes. The United States and the Klamath Tribes agree
that they will not place any call on the Williamson River
that will result in the curtailment of Claimants’ use of
water in excess of the principles set forth in paragraph
B.1.(b), above. To ensure implementation of this provision,
the United States and the Klamath Tribes hereby request
that the Adjudicator’s Findings of Fact and Order of
Determination place a condition implementing the princi-
ples set forth in paragraph B.1.(b), above, thereby prevent-
ing exercise, upstream of the current north boundary of
Claimants’ property * * * of any rights adjudicated in favor
of the United States on behalf of the Klamath Tribes in
Claim No. 633. The United States and the Klamath Tribes
also request that the same provision be placed on any rights
adjudicated in favor of the Klamath Tribes with respect
to the portion of the Klamath Tribes’ Claim No. 612 that
incorporates Claim 633 filed by the United States on behalf
of the Klamath Tribes.”
(Emphases added.) The adjudicator did not incorporate
any limiting provision on the United States’ and Klamath
Tribes’ determined claims as requested, and that failure
is also currently subject to pending exceptions in Klamath
County Circuit Court.
Under the Hyde Agreement, the provisions B.1.(a),
B.1.(b), and B.1.(c), were all dependent upon the adjudicator’s
adoption of those provisions, as provided in section B.4.:
“4. If the Findings of Fact and Order of Determination
issued by the Adjudicator for Claim 33 does not conform to
the terms set forth in paragraph B.1., above, the Parties
reserve any right they may have to file exceptions to the
Findings of Fact and Order of Determination as to Claim
33 in the Circuit Court for Klamath County, and reserve
any rights they may have to participate in any future pro-
ceedings authorized by law concerning Claim 33.”
Section B.4. was adopted by the adjudicator into the KBA
order.
Petitioners cannot now attempt to get around the
determinations in the KBA order and the ORS chapter 539
review process, and obtain an automatic stay of OWRD’s
200 TPC, LLC v. Water Resources Dept.
statutory obligation under ORS 539.170 to distribute water
according to the determined claims pending that review
process, by seeking to separately enforce in a different
forum the provisions in the Hyde Agreement that the KBA
order omitted. It is akin to what the plaintiffs in Flight
Shop, Inc. sought to do when they asked the circuit court
to enforce land use regulations against the defendant while
the land use decisional process about the disputed land use
on the defendant’s property was still ongoing. 277 Or App at
646, 648. The circuit court in that case lacked subject mat-
ter jurisdiction to do so, and so did Marion County Circuit
Court in this case. Whether the no-call provision of the Hyde
Agreement is a required limitation on the United States’
and the Klamath Tribes’ water rights claims, as part of the
stipulation to settle contests, is currently part of the ongoing
KBA litigation, and it is subject to Klamath County Circuit
Court’s exclusive jurisdiction under ORS chapter 539. By
seeking to have Marion County Circuit Court instead treat
the Hyde Agreement as separately enforceable under ORS
540.150 or otherwise, petitioners sought to have Marion
County Circuit Court interject itself into that ongoing lit-
igation and decide for itself whether the Hyde Agreement
limited the United States’ and Klamath Tribes’ determined
claims.
The remedies sought by petitioners further high-
light why Marion County Circuit Court does not have sub-
ject matter jurisdiction. Petitioners sought all the same rem-
edies as previously discussed, which sought to place direct
limitations on the United States’ and Klamath Tribes’ deter-
mined water rights through an injunction against OWRD
from enforcing those determined claims. The determination
of those water right claims, however, is within the exclusive
jurisdiction of Klamath County Circuit Court.
Because Marion County Circuit Court lacked sub-
ject matter jurisdiction over the claim brought by petition-
ers, we reverse and remand with instructions to dismiss the
petitions for judicial review.
Reversed and remanded with instructions to dis-
miss petitions.