# Petition for Writ of Certiorari — Saylor v. Oregon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1046

## Text

Suprome Court, BL

Oo; \) FEL RD
v0 -4 86 SEP 17 1990
eS JOSEPH F. SPANIOL, JR,

! CLERK
IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

LOWELL SAYLOR, et al

Petitioners,
Vv.

STATE OF OREGON, OREGON DEPARTMENT OF
WATER RESOURCES, and MICHAEL F. LADD,
WATERMASTER, DISTRICT 5, OF THE

STATE OF OREGON WATER RESOURCES
DEPARTMENT,

Respondents.

PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF THE
STATE OF OREGON

GEORGE J. COOPER, III
Dunn, Carney, Allen, Higgins & Tongue
851 S.W. Sixth Ave., Suite 1500
Pacific First Federal Building
Portland, Oregon 97204-1357
(503) 224-6440

Counsel for Petitioners

QUESTION PRESENTED FOR REVIEW

Where plaintiffs bring an action in
state court under 42 U.S.C. § 1983 for a
violation of Fifth and Fourteenth
Amendment’ rights, where the _ § 1983
federal claim is substantial, and the
state court finds the § 1983 federal
claim "unnecessary" because parallel
relief is available under state law, are
plaintiffs "prevailing parties" entitled
to attorney fees under 42 U.S.C.

§ 1988?

PARTIES

Petitioners are Lowell Saylor,

Oregon Trail Ranches, Inc., and Alfalfa

Acres, Inc.

ii

Respondents are the State of Oregon,
Oregon Department of Water Resources, and
Michael F. Ladd, Watermaster, District 5,
of the State of Oregon Water Resources

Department.

iii

QUESTION PRESENTED......-+-eee0-
PARTIES) .ccccccececcrcccccseces
OPINIONS BELOW... 1... es eeececcces
JURISDICTION... ccc ceceeecccvees

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED.....--+eeeeees

STATEMENT OF THE CASE......... eo
REASONS FOR GRANTING THE WRIT...

I. This Case Should be
Consolidated and Reviewed
Together with Another
Pending Certiorari Case
Which Presents the Same
Ee ee

II. The Oregon Court of Appeals
has misconstrued 42 U.S.C.
§ 1983 and § 1988 and its
decision conflicts with the
decisions of this Court,
federal courts of appeals,
and every other state
appellate court that has
addressed the question......

A. BREPOGUSSEOM ec ccc ccccecs

11

11

iv

TABLE OF CONTENTS (cont. )

The Oregon Court of
Appeals' decision
below conflicts with
the decisions of

CRED GO Sc sc wccccccccs

The legislative history
of § 1988 supports this
Court's prior decisions
and requires an award of
attorney fees in this
GOBE see cissecicesesince

The Oregon Court of
Appeals' decision below
conflicts with decisions
of the federal courts of
APPEALS. ce cccccsccccecs

The Oregon Court of
Appeals' position below
is in conflict with the
decisions of all the
other state appellate
courts that have
addressed the
GMOBEIOM. cc ccccsscccces

CONCLUSION.......-. eee cccrccccccce

APPENDIX

13

17

20

23

25

App.

1

Cases Page

Best _v. California

240 Cal. Rptr. 1 (Cal.
BRM. BEET) ccocccccecdcecccece 23

Florence Tp., 206 N.J.
Super. 432, 502 A.2d 1198

Civdtiathtdwedeideentncces 24

++ :
’

768 F.2d 1039 (9th Cir.

PS GOS CES S66 OR EEEC SS OCCCCES 12,20

665 S.W. 2d 586 (Tex.
App. 1964) wecccecce eseeee. eeee#ese 24

: ty E i Pri
George's County v. Doe,
300 Md. 445, 479 A.2d 352
CASSSP oe ccccevecs e*eeeeeee#ee#e#e 24

vi »
443 So. 2d 1232
(Ala. Oo ) eeeee#ee#es 23

’
21 Ohio App. 3d, 487
ty SO Ee ee 24

vi
INDEX OF AUTHORITIES (Cont. )

Greenfield, 425 N.E. 2d
333 (Mass. 1981)............

, 788
F.2d 47 (1st Cir. 1986).....

626 F.2d 1218
(5th Cir. BOBO) ccccccccccece

, 231 Kan. 507,
646 P.2d 1078 (1982)........

’
SEO Waths: AASV). ccc ceccs

’
461 U.S. 424 (1983).........

Howlett v. Rose,
496 U.S.

a |
110 L.Ed.2d 332 (1990)......
International Ass'n of |

x ’
504 A.2d 468 (R.I. 1986)....

’
58 N.Y. 2d 454,
461 N.Y.S. 2d 782,
448 N.E. 2d 449 (1983)......

24

21

12

23

13

13

24

24

vii
INDEX OF AUTHORITIES (Cont. )

Kimbrough v. Arkansas _

574 F.2d 423
(8th Cir. .)) ) 21

Lund _v. Affleck,
587 F.2d 75
(1st Cir. 1978) ....eseceees 22

’
448 U.S. 122 (1980)......... 14,15,

eeeeeeeeeeeeeeeeeeeeeeeeeee © 19,20,

eeeeeseseeeeeeeeeeeeeeeeeeee ee & 22,25
’

448 U.S. 1 (1980)........26-. 12,20

’
653 F.2d 80
(2d Cir. AGB) wccccevevececs 21

Oregon State Police Ass'n

v. State of Oregon,

308 Or. 531, 783 P.2d 7
(1989), petition

for cert. filed

’
April ll, BPO cceesesececese 8,10,

eeeeeeeeseeeeeeeeeeeeeeeeeeees 23

’
477 U.S. 561 (1986)......... 12,17

Court, 562 F.2d 390
(Gth Cir. IDT7) cwceccccccees 12,22

viii
INDEX OF AUTHORITIES (Cont.)

Seaway Drive-In, Inc. v.

Township of Clay
791 F.2d 447 (6th Cir.)

, 479 U.S.
ei

468 U.S. 922 (1984).........

vy. Adams, 436 F.Supp. 891

(D. Or. 1977), aff'd.,
657 F.2d 1118

SG PEED 6 Gicdecins cece
State of New York v.

ii Cornwell Co.,

718 F.2d 22

ST OMEOD ncccccccccece

Stratos v. Department of
Public We) fare
387 Mass. 312,
439 N.E.2d 778 (1982).......

Gibbs, 383 U.S. 715,
16 L.Ed.2d 218, 86 S.Ct.

ns Seve ncesee

692 F.2d 1032 (Sth Cir. 1982)
aff'd sub. nom

Dallas County Texas __

v. Williams

462 U.S. 1133 (1983)........

ix
INDEX OF AUTHORITIES (Cont.)

66 A.D. 2a 377,
413 N.Y.S. 2a 530
CADTD) wewveevvveevesnvssesees

Article VI of the
United States Constitution......

Fifth Amendment to the
United States Constitution......

FEDERAL STATUTES
42 U.S.C. S WSdwceveceesssecseses

eee eeeeeeeeeeeeeeeeee ee ee ee &
ee eeeeeeveeeeeeeeeeeeee ee & & &
eee eeeeeeeeeeeeeeeeeeee ee & & &
ee eeeeeeeeeeeeeeeeeeee ee ee & &

42 U.S.C. ae.) | RS

ese eeeeeeeeeeeeeeeeeee eee & & & &
ee eeeeeeeeeeeeeeeeeee eee & & & &
eee eeeeeeeeeeeeeeeeeeee ee & & &
eee eeeeeeeeeeeeeeeeee eee ee & &
ee eeeeeeeeeeeeeeeeeeeee eee & &
eee eeeeeeeeeeeeeeeeeeee eee & &

24

No.

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

LOWELL SAYLOR, et al

Petitioners,

Vv.

STATE OF OREGON, OREGON DEPARTMENT OF
WATER RESOURCES, and MICHAEL F. LADD,
WATERMASTER, DISTRICT 5, OF THE

STATE OF OREGON WATER RESOURCES
DEPARTMENT,

Respondents.

PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF THE
STATE OF OREGON

Petitioners respectfully pray that a
writ of certiorari issue to review the

decision of the Oregon Court of Appeals

entered March 14, 1990. This decision
was denied review by the Supreme Court of

the State of Oregon on June 19, 1990.

OPINIONS BELOW

The Oregon Supreme Court's denial of
review is reported at 310 Or. 122
(1990). The decision of the Oregon Court
of Appeals is reported at 100 Or. App.

745, 788 P.2d 494 (1990).

JURISDICTION

In accordance with 28 U.S.C.
§ 1257(a), this petition prays _ for
certiorari review of a judgment by the
highest court of a State in which the
decision could be had. The Oregon Court
of Appeals issued its decision below on
March 14, 1990. The Oregon Supreme Court
denied review on June 19, 1990. This
petition is therefore timely pursuant to

the provisions of Rule 13.1 of the Rules

of the Supreme Court of the United

States.

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
Article VI of the United States
Constitution provides, in pertinent part

as follows:

This Constitution, and the Laws
of the United States which shall
be made in Pursuance thereof;
and all Treaties made, or which
shall be made, under the
Authority of the United States,
shall be the supreme Law of the
Land; and the Judges in every
State shall be bound thereby,
any Thing in the Constitution or
Laws of any State to the
contrary notwithstanding.

United States Constitution, Article VI,
Paragraph 2.

The Fifth Amendment to the United
States Constitution provides, in

pertinent part:

No person shall be zx ke
deprived of life, liberty or
property, without due process of
law; nor shall private property
be taken for public use, without
just compensation.

Section 1983 of Title 42 of the United
States Code provides, in pertinent part
as follows:

Every person who, under color of
any statute ... of any State
* * * subjects, or causes to be
subjected, any citizen of the
United States or other person
within the jurisdiction thereof
to the deprivation of any
rights, privileges, or
immunities secured by the
Constitution and laws, shall be
liable to the party injured in
an action at law, suit in
equity, or other proper
proceeding for redress.

42 U.S.C. § 1983.

Section 1988 of Title 42 of the
United States Code provides, in pertinent
part:

In any action or proceeding to

enforce a provision of [Section]
* * * 1983 * * * of this title,

the court, in its discretion,
may allow the prevailing party,
other than the United States, a
reasonable attorneys fees as
part of the costs.

42 U.S.C. § 1988.

STATEMENT OF THE CASE

This is an action for violation of
plaintiffs' substantive right to the
enjoyment and use of irrigation water, a
property right vested in plaintiffs under
the terms of a 1916 Water Rights
Decree. On February 11, 1988, plaintiffs
called upon the state to deliver
irrigation water to their lands in
accordance with the decree; the state
refused. App. 23.

Plaintiffs subsequently filed this
action in the state trial court in April,
1988, alleging a civil rights claim under

42 U.S.C. § 1983, and asking’ for

declaratory and injunctive relief. After
conducting a hearing, the trial court
ruled in favor of the plaintiffs and
ordered the state to deliver water to
plaintiffs in May-June, 1988 to make up
for the water the state had denied to
them in February. App. 25.

Having prevailed on the merits,
plaintiffs moved for and were awarded
attorney fees under 42 U.S.C. § 1988.
App. 15-17. The trial court's analysis
in granting plaintiffs' motion for
attorney fees contains the _ following
summary of relevant facts:

In this action plaintiffs were
already injured by the action of
the Watermaster. They were told
under paragraph 7 of the
distribution plan that their

accumulated water rights would
not be recognized until they

signed the plan. This
restriction was imposed after
the starting date for

plaintiffs' accumulated water

rights and drought conditions
exacerbated the situation.
Thus, plaintiffs were in fact
denied their accumulated water
rights from January 19, 1988
until March 21, 1988."

App. 16-17.

The state appealed the trial court
judgment to the Oregon Court of Appeals,
contending that the trial court had
erroneously awarded attorney fees because
plaintiffs federal claims were not
substantial. [2]

The Oregon Court of Appeals
reversed. Citing and relying on Qregon

State Police Officers Ass'n v. State of

[1] For purposes of this inquiry, a federal claim
is “substantial” unless it is “obviously
frivolous” or “absolutely devoid of merit” or
clearly foreclosed by prior controlling
authority. E.g. Hagans v. Lavine, 415 U.S. 528,
536-38, 39 L.Ed.2d 577, 587-88, 94 S.Ct. 1372,
1379 (1974). Plaintiffs’ federal claims were
sufficiently substantial to prevail in the trial
court.

Qregon, 308 Or. 531, 783 P.2d 7, (1989),
petition for cert. filed, April 11, 1990,
the Oregon Court of Appeals held that
because plaintiffs were entitled to the
injunctive relief they sought under state
law, their invocation of 42 U.S.C. § 1983
was “unnecessary"; consequently, the
trial court's award of attorneys fees was
reversed. App. 9-10. Plaintiffs
petitioned for review in the Oregon
Supreme Court. That tribunal denied

review on June 19, 1990. App. 4.

REASONS FOR GRANTING PETITION
I. This case should be consolidated
and reviewed together with another
pending case which presents the same
question.
The issue presented in this petition

is identical to the question raised in

10

another case that is before this Court,
Oregon State Police Ass'n v. State of
Qregon, 308 Or. 531, 783 P.2d 7 (1989),
petition for cert. filed, April 11,
1990. Indeed, the decision of the court
below was based solely on a perfunctory
citation to the Qregon State Police Ass'n
case.

Because of the identity of the
issues in the two cases, it is
respectfully submitted that the immediate
case should be consolidated and reviewed
on certiorari together with the Oregon
State Police Ass'n case.

The Court of Appeals held:

“Because respondents were
entitled to the relief that
they sought under state
law, their invocation of 42
U.S.C. § 1983 was
unnecessary. Accordingly,
the trial court erred in
awarding respondents
attorney fees under 42
U.S.C. § 1983."

This ruling effectively nullifies § 1988
because almost every conceivable kind of

civil rights case is independently

12

cognizable under state law on non-civil
rights grounds. [2]

Based on the Supremacy Clause of
the United States Constitution, however,
attorney fees under § 1988 are an
integral part of the remedy in any 42
U.S.C. § 1983 case “whether the action is
brought in federal or state court."
Maine v. Thiboutot, 448 U.S. 1, 11, 65
L.Ed.2d 555, 563, 100 S.Ct. 2502, 2508
(1980). Therefore, the ruling that

[2] The foilowing cases are illustrations of
valid § 1983 claims that are accompanied by an
independent right to relief under state law.
City of Riverside v. Rivera, 477 U.S. 561 (1986)
(unreasonable search and seizure; common law
battery); Carreras v. City of Anaheim, 768 F.2d
1039 (9th Cir. 1985) (first amendment free speech
case; independent right to relief under state
constitution); Seals v. Quarterly County Court,
562 F.2d 390 (6th Cir. 1977) (equal protection
voting rights case; parallel state claim); Gibbs
v. Town of Frisco City, 626 F.2d 1218 (5th Cir.
1980) (unconstitutional deprivation of life;
statutory wrongful death).

13

plaintiffs' § 1983 claim was

"unnecessary" is plainly in error.

B. The Oregon Court of Appeals

There is no question plaintiffs
properly filed federal constitutional
Claims in state court, [3] nor that they
are “prevailing parties" within the
meaning of § 1988. E.g., Hensley vy.
Eckerhart, 461 U.S. 424, 76 L.Ed.2d 40,
103 §.Ct. 1933 (1983). Plaintiffs
obtained all the relief they sought when
the trial court granted a preliminary
injunction ordering the state to restore
plaintiffs' property interest in their

irrigation water.

[3] Howlett v. Rose, 496 U.S.
332 (1990).

110 L.Ed. 2d

14

In Maher v. Gagne, 448 U.S. 122,
132 (1980), this Court held that a
plaintiff is the prevailing party for
purposes of an award of attorney fees
under § 1988 even when the plaintiff
prevails “on a wholly statutory, non
civil rights claim pendent to a
substantive constitutional claim," 448
U.S. at 132, provided that the winning
claim shares a common nucleus of
operative fact with the substantial
federal constitutional claim. Id.

In Maher, this Court grounded
its holding on clear expressions of
legislative intent, construing the
legislative history of § 1988 as
follows:

"The legislative history makes
it clear that Congress intended
fees to be awarded where a

pendant constitutional claim is
involved, even if the statutory

15

Claim on which the plaintiff
prevailed is one for which fees
cannot be awarded under’ the
Act. The Report of the
Committee on the Judiciary of
the House of Representatives
accompanying HR 15460, a bill
substantially identical to the
Senate Bill that was finally
enacted, stated: '‘'To the extent
a plaintiff joins a claim under
one of the statutes enumerated
in HR 15460 with a claim that
does not allow attorney fees,
the plaintiff, if it prevails on
the non-fee claim, is entitled
to a determination on the other
claim for the purpose of
awarding counsel fees.

448 U.S. at 132, n. 15. [4]
The present case falls squarely

within the rule of Maher. Plaintiff

(4) The legislative history quoted above is
followed by a reference to United Mine Workers v.
Gibbs, 383 U.S. 715 (1966). Gibbs stands for the
rule that the federal courts have jurisdiction to
entertain pendent state law causes of action when
they are properly joined with federal claims.
Thus, by citing Gibbs, Congress necessarily
envisioned that attorney fees would be available
where the civil rights claimant is afforded
relief on independent state law grounds.

16

pleaded and proved a substantive
constitutional claim. Indeed, the trial
court expressly held that plaintiffs'
substantive constitutional rights were

violated and the state of Oregon does not
|

seriously contend otherwise. Therefore,
having prevailed on the merits,
plaintiffs were entitled to recover their
attorney fees under the rule this Court

announced in Maher.

In a similar vein, in Smith v.
Robinson, 468 U.S. 922 (1984), this Court
said:

"As the legislative history
illustrates and as this Court
has recognized, § 1988 is a
broad grant of authority to
courts to award attornes fees to
plaintiffs seeking to vindicate
federal constitutional and
statutory rights. (citing
cases) * * * Congress did not
intend to have that authority
extinguished by the fact that
the case was settled or resolved

17

on a non-constitutional
ground.

468 U.S. at 1006.

Congress enacted § 1988 to provide
suitable legal representation to all
victims of civil rights violations,
recognizing that such claimants otherwise
would be unable to present their cases in
court. Riverside v. Rivera, 477 U.S.
561, 576 (1986). In Riverside, this

Court found that Section 1988 embodies

the following policy considerations:

1. Plaintiffs who suffer civil
rights violations have little or
no money with which to hire
counsel. 477 U.S. at 576.

2. Many civil rights cases
yield no award or only a small
award of damages from which

18
attorneys fees can be paid. Id.
at 577.
3 Civil rights litigation
serves the public interest
insofar as it tends co deter
official misconduct. za. at
578-79.

These legislative objectives are
utterly thwarted by the Oregon Court of
Appeals' decision in this case.
Plaintiff Lowell Saylor is a struggling
farmer who faced major crop losses in a
year of serious drought conditions. The
judicial remedy he sought was equitable
in nature, leaving no award of damages to
defray the cost of legal
representation. He acted as a "private
attorney general," vindicating the rights
of all the water users in the subject

irrigation systen. His case stands at

the very heart of § 1988. He is entitled

19

to recover fees under that statute based
on the clear mandate of Congress. !°]
Since a potential right to relief
under state law now means that § 1988
fees will not be available in Oregon
state courts, potential plaintiffs will
either be unable to_- secure legal
representation in state courts, or be
forced to seek federal judicial
protection. This is precisely the

problem which Congress sought to remedy

[5] Anticipating Maher v. Gagne by three years,
Judge Burns held in Southeast Legal Defense Group
v. Adams, 436 F.Supp. 891, 895 (D. Or. 1977),
aff’d., 657 F.2d 1118, 1123 (9th Cir. 1981), that
"it seems manifestly unfair to penalize
plaintiffs who couple their constitutional claims
with meritorious statutory claims and theredy
facilitate the federal policy of avoiding
unnecessary constitutional decisions. To deny
such plaintiffs the attorney fees to which they
might otherwise be entitled frustrates rather
than promotes the policy of [§ 1988].”

ee ee

20

when it amended § 1988 in 1976. Maine v.
Thiboutot, supra, 448 U.S. 11, n. 12.

D. The Oregon Court of Appeals’
decision below conflicts with the
decisions of the federal courts of
appeals.

Every reported federal appellate
court decision that has considered the
issue has held, without exception, that
the Maher principle applies where the
plaintiff has prevailed on a state law
claim that was joined to a substantial
federal claim:

"x * * When the plaintiff in a

civil rights action prevails on

a pendent state claim based on a

common nucleus of operative fact

with a substantial federal

claim, fees may be awarded under
§ 1988."

Carreras v. City of Anaheim, 768 F.2d
1039, 1050 (9th Cir. 1985) (ordinance

regulating solicitation of donations

21

violated California Constitution; federal
constitutional claims not reached; § 1988

fees awarded) .[&]

[6] Accord, Seaway Drive-in, Inc. v. Township of
Clay, 791 F.2d 447, 450-52 (6th Cir.), cert.
den., 479 U.S. 884, 93 L.Ed.2d 251, 107 S.Ct. 274
(1986), (drive-in theatre ordinance voided on
state statutory grounds; fees awarded on § 1983
constitutional claims not reached); Exeter-West
Greenwich Regional School v. Pontarelli, 788 F.2d
47, 52 (lst Cir. 1986) (§ 1983 claim dismissed as
moot when state court on certification from
federal district court, granted plaintiff's
relief under state law; § 1988 fees awarded);
Lund v. Affleck, 587 F.2d 75, 76-77 (lst Cir.
1978) (State welfare policy invalidated under
Social Security Act; fees awarded on concurrent
§ 1983 claims); State of New York v. 11 Cornwell
Company, 718 F.2d 22, 25 n. 3 (2d Cir. 1983) (en
banc) (plaintiff prevails on state law claim,
awarded fees on undecided substantial § 1983
claim); Williams v. Thomas, 692 F.2d 1032, 1036
(Sth Cir. 1982) cert. den. sub. nom. Dallas
County, Texas v. Williams, 462 U.S. 1133, 77
L.Ed.2d 1369, 103 S.Ct. 3115, (1983) (plaintiff
prevailed on state tort claim; § 1988 fees
awarded on undecided § 1983 due process claim);
Kimbrough v. Arkansas Activities Association, 574
F.2d 423, 426-27 (8th Cir. 1978) (plaintiff
prevailed on construction of state athletic rule;
§ 1988 fees awarded on undecided civil rights
claims). See also, Milwe v. Cavuoto, 653 F.2d
80, 84 (2d Cir. 1981) (plaintiff prevails on
state court claims, with nominal damages on
(continued)

22

In Seals _v. Quarterly County Court,
562 F.2d 390 (6th Cir. 1977), the Sixth
Circuit addressed a voting rights claim
which had been brought under § 1983 as
well as under state law. Although the
case was resolved exclusively under state
law, 562 F.2d at 392, the court held that
the § 1983 claim did not disappear
"because relief is rendered on an
alternative state law ground." 562 F.2d
at 394. The court further stated:
"Congress clearly has the power
in such circumstances to
authorize attorneys fees as a

matter of federal law, and it
equally clearly has done so."

§ 1983 claim; attorney fees awarded, quoting
Maher, supra.)

23

Except for the Oregeon Supreme
Court's plainly unconstitutional ruling
in Oregon State Police Ass'n v. State of
Qregon, supra, upon which the Oregon
Court of Appeals relied, every state
appellate decision has held that § 1988
attorney fees should be awarded under the
circumstances presented in this

case. (7]

[7] Davis v. Everett, 443 $.2d 1232, 1235-36
(Ala. 1983) (plaintiff prevails on state
constitutional claim for liquor license; equal
protection claim under § 1983 not reached; fees
awarded under § 1988); Best v. California
Apprenticeship Council, 240 Cal.Rptr. 1 (Cal.App.
1987) (state statutory construction avoids First
Amendment § 1983 claim; § 1988 fees awarded);
Gumbhir v. Kansas State Board of Pharmacy, 231
(continued)

24

As the Massachusetts Supreme
Judicial Court said in Stratos v.

Department of Public Welfare, 387 Mass.
312, 439 N.E.2d 778 (1982):

Kan. 507, 646 P.2d 1078, 1086 (1982) (principle
of Maher quoted, but fees denied for lack of
common nucleus of operative fact and federal
claims found to lack merit); County Exec., Prince
George’s County v. Doe, 300 Md. 445, 479 A.2d
352, 358 (1984) (plaintiff prevails on state
ground; § 1988 fees awarded on § 1983 claim not
reached); Draper v. Town Clerk of Greenfield, 425
N.E.2d 333, 339 (Mass. 1981) (plaintiff prevails
on state statutory interpretation, state and
federal constitutional questions avoided; § 1988
fees awarded); Bung’s Bar & Grille, Inc. v.
Florence Tp, 206 NJ Super. 482, 502 A.2d 1198,
1216-1218 (1985) (plaintiff prevails on state
grounds; § 1988 fees awarded on § 1983 claim not
reached); Young v. Toia, 66 A.D.2d 377, 413 N.Y.
Supp. 2d, 530, 531-32 (1979) (plaintiff prevails
on state claim; § 1988 fees awarded on federal
claim not reached); Johnson v. Blum, 58 N.Y.2d
454, 461, N.Y.Supp.2d 782, 448 N.E.2d 449 (1983);
Doe v. Cuddy, 21 Ohio App. 3d 370, 487 N.E.2d
914, 916-917 (1985) (state welfare regulation
void under Ohio statute; § 1983 constitutional
claims not reached; § 1988 fees awarded); Intern.
Ass'n. of Machinists v. Affleck, 504 A.2d 468,
470-71 (R.1I. 1986); City of Fort Gates v. Cathey,
665 S.W.2d 586 (Texas App. 1984) (plaintiff
prevails on state claim; federal § 1983 claims
not reached; § 1988 fees awarded).

25

| "Section 1983 provides an
independent remedy for violation
of rights protected by federal
| law. If such a right is at
issue, the Section 1983 remedy
is available, even if the State
has also provided a means of
obtaining relief. (citing
cases) ee & (T)he fee
incentive is equally useful and
necessary whether the right in
question is secured by federal
| law alone, or by state law as
well. Therefore, the fact that
a plaintiff claiming relief
| under Section 1983 could have
obtained relief solely by means
of a state remedy -- even a
"routine" one -- did not
foreclose a fee award."

439 N.E.2d at 783 (citing Maher v. Gagne,
supra, at n. 15).
CONCLUSION

The answer to the question posed in
this case will have broad effects on the
enforcement of civil rights in federal
and state courts, on federal dockets and
on the balance between state and federal

judicial power. This court’ should

I ileal eth alin

26

restore the balance disturbed by the
decision below.

For all of the foregoing reasons,
the Writ of Certiorari should be granted
and the Oregon Court of Appeals' decision
should be reversed. The case should be
remanded for reinstatement of § the
attorney fee awards below and for an
award of fees on appeal and on this
petition for certiorari.

Respectfully submitted,
DUNN, CARNEY, ALLEN,
HIGGINS & TONGUE

By:

George J. Cooper, III

851 S.W. Sixth, Suite 1500
Pacific First Federal Bldg.
Portland, OR 97204-1357
(503) 224-6440

App. 1

APPENDIX TO

Petition for Writ of Certiorari
to the Court of Appeals of the
State of Oregon

APPENDIX INDEX

APPENDIX A
Order Denying Review,
Oregon Supreme Court,
June 19, 1990... cccccccecces App. 3

APPENDIX B
Order Denying
Reconsideration, Court of
Appeals of the State
GE GOIN sc cs ccccccccsecce occ App. 5

APPENDIX C
Decision of the Court of
Appeals of the State of
Oregon, March 14, 1990.... App. 7

APPENDIX D
Judgment Order Allowing
Plaintiffs' Motion for
Award of Attorney Fees,
Circuit Court for the
State of Oregon for
the County of Umatilla.... App. 12

APPENDIX E
Memorandum of Opinion
Allowing Plaintiffs
Attorney Fees Pursuant
to 42 U.S.C. § 1988,

App. 2

Circuit Court for the
State of Oregon for the
County of Umatilla........

APPENDIX F
Letter Opinion
Authorizing
Preliminary Injunction,
Circuit Court for the
State of Oregon For the
County of Umatilla........

APPENDIX G
Preliminary Injunction,
Circuit Court for the
State of Oregon for the
County of Umatilla........

APPENDIX H
Plaintiffs' Amended
Complaint, Circuit Court
of the State of Oregon
for the County of
CME LLLGs 0 hho HEE Sb HEE eo 0

App.

App.

App.

App.

15

18

20

27

App. 3

IN THE COURT OF APPEALS
OF THE STATE OF OREGON

SAYLOR, LOWELL ET AL
OREGON TRAIL RANCHES,
INC., ALFALFA ACRES,

INC.,

Plaintiffs
Respondents.

Vv.

WATER RESOURCES
DEPT., LADD,
MICHAEL F.,

Defendants

Appellants.
AMMON, COLUSI
ASHBECK, LEO
BRITT, SIDNEY
COCHRAN, GLEN
CORREA, JOHN E.
CORREA, JOHN B.
GRAHM, DELBERT BUD
HALE BROS., INC.
HAWKINS, BOB
MADER, FRANK
MADISON RANCHES,
INC.
MADISON, JOHN
MCCARTY, MIKE
MYERS, JERRY
MUELLER, FRANK
PEDRO, FRANK
SCHILLER, ROBERT
WITHERRITE, WELDON

ORDER DENYING
REVIEW

CA A50953
SC $&37073

App. 4

,

CHOWNING, GLEN )
WATTENBERGER, BURL )
)
)

Defendants
The Court has considered the
petition for review and ORDERS that it be
denied.
DATED: JUNE 19, 1990.
on

Edwin J. Peterson
Chief Justice

Graber, J. not participating

COPIES TO:

John C. Cahalan Attorney for:
Petitioner

Rives Kistler Attorney for:
Respondent

App. 5

IN THE COURT OF APPEALS
OF THE STATE OF OREGON

SAYLOR, LOWELL ET AL

OREGON TRAIL RANCHES,) ORDER DENYING

INC., ALFALFA ACRES, RECONSIDERATION
INC.,
CA A50953
Plaintiffs sc $37073
Respondents.
Vv.

WATER RESOURCES
DEPT., LADD,
MICHAEL F.,

Defendants

Appellants.
AMMON, COLUSI
ASHBECK, LEO
BRITT, SIDNEY
COCHRAN, GLEN
CORREA, JOHN E.
CORREA, JOHN B.
GRAHM, DELBERT BUD
HALE BROS., INC.
HAWKINS, BOB
MADER, FRANK
MADISON RANCHES,
INC.
MADISON, JOHN
MCCARTY, MIKE
MYERS, JERRY
MUELLER, FRANK
PEDRO, FRANK
SCHILLER, ROBERT
WITHERRITE, WELDON

me ee et ee ee et a et ee et et ee et et et et et Se Se Set Se Se ee See Se ee Set Se

CHOWNING, GLEN )
WATTENBERGER, BURL )
)

Defendants )

The Court of Appeals has considered
the Petition for Review filed in this
case as a Petition for Reconsideration
and has, on May 16, 1990, denied the
petition. ORAP 9.15. The Supreme Court
may now proceed to determine whether to
grant review. The appellate court
decision is not enforceable until the

Supreme Court has completed its review of
the petition. ORAP 14.05.

/s/ George M. Joseph
CHIEF JUDGE

Copies to:
John C. Cahalan Attorney for:
Respondent
Rives Kistler Attorney for:
Appellant

App. 7

IN THE COURT OF APPEALS OF
THE STATE OF OREGON

LOWELL SAYLOR, OREGON
TRAIL RANCHES, INC. and
ALFALFA ACRES, INC., Respondents,

STATE OF OREGON WATER

RESOURCES DEPARTMENT;

MICHAEL F. LADD, WATERMASTER,

DISTRICT 5, OF THE STATE OF

OREGON WATER RESOURCES

DEPARTMENT, Appellants,

and

COLUSI AMMON; LEO
ASHBECK; SIDNEY BRITT;
GLEN COCHRAN; JOHN E.
CORREA; JOHN B. CORREA;
DELBERT BUD GRAHAM;
HALE BROS., INC., an
Oregon corporation; BOB
HAWKIN ; FRANK MADER;
MADISON RANCHES, INC.,
an Oregon corporation;
JOHN MADISON; MIKE
MCCARTY; JERRY MYERS;
FRANK MUELLER; FRANK
PEDRO; ROBERT SCHILLER;
WELDON WITHERRITE; GLEN

' App. 8

CHOWNING and BURL
WATTENBERGER, Defendants.

(CV-88-283; CA A50953)

Appeal from Umatilla County,
Circuit Court.

J.F. Olsen, Judge.

Argued and submitted January 29,
1990.

Rives Kistler, Assistant Attorney
General, Salen, argued the
cause for appellants. With him
on the briefs were Dave
Frohnmayer, Attorney General,
and Virginia L. Linder,
Solicitor General, Salem.

John C. Cahalan, Portland, argued
the cause for respondents.
With him on the brief was Dunn,
Carney, Allen, Higgins &
Tongue, Portland.

Before Graber, Presiding Judge, and
Riggs and Edmonds, Judges.

PER CURIAM

Reversed.

saylor.opn
FILED: March 14, 1990

—

App. 9

PER CURIAM

Respondents are owners of land
located in Umatilla County and of water
rights in Butter Creek. Pursuant to a
1916 court decree, they are entitled to
accumulate water to preserve their water
rights. In 1988, appellants refused to
allow accumulation of water until all
water users had signed a use agreement.
Respondents filed a complaint in circuit
court requesting declaratory and
injunctive relief under 42 USC § 1983 and
ORS ch 28. They successfully obtained a
preliminary injunction and, pursuant to
42 USC § 1988,+ were awarded attorney
fees, which is the subject of the

appeal.

The right to use water is a vested

property interest entitled to judicial
protection. Skinner v. Jordan Val. Irr.

App. 10

Dist., 137 Or. 480, 491, 300 P. 499, 3
P.2d 534 (1931). ORCP 79A(1)(b) provides
an adequate state remedy for’ the
protection of that interest. See also
ORS 540.740.2 Because respondents were
entitled to relief that they sought under
state law, their invocation of 42 USC
§ 1983 was unnecessary. Accordingly, the
trial court erred in awarding respondents
attorney fees under 42 USC § 1988.
Qregon State Police Assn. _v. State of
Oregon, 308 Or. 531, 538, 783 P.2d 7

(1989).

Reversed.

App. 11

FOOTNOTES

42 USC § 1988 states:

"In any action or proceeding to
enforce a provision of sections 1981,
1982, 1983, 1985, and 1986 of this
title, title IX of Public Law 92-318
(20 U.S.C. 1681 et seq.], or title VI
of the Civil Rights Act of 1964 [42
U.S.C. 2000d et seq.], the court, in
its discretion, may allow’ the
prevailing party, other than the
United States, a reasonable
attorney's fee as part of the
costs."

ORS 540.740 provides:

"Any person who may be injured by
the action of any watermaster may
| appeal to the circuit court for an
) injunction. The injunction shall
) only be issued in case it can be
shown at the hearing that’ the
watermaster has failed to carry into
effect the order of the Water
Resources Commission or decrees of
the court determining the existing
rights to the use of water."

a

App. 12
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF UMATILLA

LOWELL SAYLOR,
et al.,

Case No.
Cv-88-283

Plaintiffs,

Vv.
ORDER ALLOWING

STATE OF OREGON PLAINTIFFS '
WATER RESOURCES MOTION FOR
DEPARTMENT, AWARD OF

et al., ATTORNEY FEES

ee ee ee ee ee ee ee ee ee ee ee ee

Defendants. )

On August 3, 1988, plaintiffs filed
a motion for attorney fees pursuant to 42
U.S.C. § 1988.

After considering the motion and
briefing and the statements of counsel at
the hearing, the Court entered a
Memorandum of Opinion dated October 4,
1988, ruling that plaintiffs' motion for
attorney fees should be allowed.

Plaintiffs' counsel subsequently filed a

App. 13

statement of their allowable costs and
attorney fees accompanied by an affidavit
of plaintiffs' counsel itemizing these
expenses. Based on the statement of
costs and the affidavit of plaintiffs'
counsel, the Court has determined that
plaintiffs are entitled to judgment
against the State of Oregon Water
Resources Department pursuant to 42
U.S.C. § 1988 for attorney fees and costs
in the sum cf $9,779.86. Furthermore,
the Court has concluded that, in
prevailing on their application for a
preliminary injunction, plaintiffs
obtained the practical equivalent of all
the relief they were seeking in this
case. For these results, the Court has
concluded that the judgment for costs and
attorney fees should contain a recital

pursuant to Rule 67B of the Oregon Rules

App. 14

of Civil Procedure that there is no just
reason for delay and that the judgment
should be entered in the record
forthwith.

IT IS SO ORDERED.

Dated this 15th day of December,
1988.

n

J.F. OLSEN
CIRCUIT COURT JUDGE

Presented by:

John C. Cahalan, OSB #84151
Dunn, Carney, Allen,
Higgins & Tongue
851 S.W. Sixth Avenue, Suite 1500
Portland, Oregon 97205
(503) 224-6440

Attorneys for Plaintiffs

App. 15

IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR UMATILLA COUNTY

LOWELL SAYLOR,

OREGON TRAIL CV 88-283
RANCHES, INC.,
and ALFALFA ACRES,
InC.,
Plaintiffs,

Vv.
STATE OF OREGON Memorandum
WATER RESOURCES of Opinion

DEPARTMENT; MICHAEL
F. LADD, WATER
MASTER, DISTRICT

5, OF THE STATE

OF OREGON WATER
RESOURCES
DEPARTMENT, et al.,

me ee ee ee ee ee ee ee ee ee Se Se Se Se ee ee ee See See”

Defendants.

The Water Resources Department
asserts that Plaintiffs dare not entitled
to attorney fees under 42 U.S.C. 1988
because they have failed to establish a
Claim under 42 U.S.C. 1983. They say
that plaintiffs are not denied procedural

App. 16

due process because they are provided the
right to a hearing under ORS 540.740 and
540.750.

These assertions fail, however,
because ORS 540.740 provides for a
hearing for injunctive relief by "(a)ny
person who may be injured by the action
of the watermaster." Emphasis
supplied.

In this action plaintiffs were
already injured by the action of the
watermaster. They were told under
paragraph 7 of the distribution plan that
their accumulated water rights would not
be recognized until they signed the
plan. This restriction was imposed after
the starting date for plaintiffs'
accumulated water rights and drought

conditions exacerbated the situation.

Thus, plaintiffs were in fact denied

App. 17

their accumulated water rights from
January 19, 1988 until March 21, 1988.

This court's opinion was that the
watermaster's plan was an unauthorized
deprivation of plaintiffs' water
rights. Those rights were property
interests thus plaintiffs were denied
substantive due process under the U.S.
Constitution.

Attorney fees are allowed pursuant
to 42 U.S.C. 1988.

DATED this 4th day of October,

1988.
s/ J.F. Olsen
J.F. OLSEN
Circuit Judge
JFO/dm

cc John C. Cahalan
Robert A. Petersen

App. 18
CIRCUIT COURT OF OREGON

Judge J.F. Olsen

Sixth Judicial District
P.O. Box 547

Pendleton, Oregon 97801

May 13, 1988
Addressees below:

Re: Saylor v. Water Resources Dept.,
CV 88-283

However necessary it was for the
Water Resources Department to fashion a
workable agreement the procedure they
followed was to suggest that the users
either agree or else face the
ultimatun.

Paragraph 7 of the 1988 agreement
has the effect of a unilateral
modification of the 1916 decree and was
imposed after the starting date for
accumulation rights. This forfeiture
provision has no basis for validity
within the decree which specifically
provided that no system could interfere
with prior existing rights which have
already been established.

Although the Water Resources
Department has the authority to implement
a plan upon agreement of two or more
users they may not do so to the detriment

App. 19
of the existing rights of other users who
do not agree.
A preliminary restraining order and
injunction will issue. Bond is set at

$20,000 unless the parties agree to a
different amount.

J.F. OLSEN
Circuit Judge
JFO/dm
Addressees:

John C. Cahalan
Robert A. Petersen

cc: Official File

App. 20
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF UMATILLA
LOWELL SAYLOR, OREGON

TRAIL RANCHES, INC.
and ALFALFA ACRES, INC.,

Plaintiffs
Vv.

STATE OF OREGON WATER Case No.
RESOURCES DEPARTMENT; CV-88-283
MICHAEL F. LADD,
WATERMASTER, DISTRICT 5,
OF THE STATE OF OREGON PRELIMINARY
WATER RESOURCES INJUNCTION

)

)

)

)

)

)

)

)

)

)

)

)
DEPARTMENT; COLUSI AMMON; )
LEO ASHBECK; SIDNEY )
BRITT; GLEN COCHRAN; )
JOHN E. CORREA; )
JOHN B. CORREA; DELBERT )
BUD GRAHM; RALE BROS., )
INC., an Oregon corpor- )
ation; BOB HAWKINS; )
FRANK MADER; MADISON )
RANCHES, INC., an Oregon )
corporation; JOHN )
MADISON; MIKE MCCARTY; )
JERRY MYERS; FRANK )
MUELLER; FRANK PEDRO; )
ROBERT SCHILLER; WELDON )
WITHERRITE, GLEN )
CHOWNING and BURL )
WATTENBERGER, )
)

Defendants.

App. 21

Plaintiffs Lowell R. Saylor, Oregon
Trail Ranches, Inc. and Alfalfa Acres,
Inc. have filed an application for a
preliminary injunction directed to
defendants State of Oregon Water
Resources Department and Michael F. Ladd
("State Defendants"). The application
was presented in open court on May 12,
1988. Plaintiffs appeared by their
attorney, John C. Cahalan. State
Defendants appeared by their attorney,
Robert A. Petersen.

Having considered the statements of
counsel and the evidence presented at the
May 12, 1988 hearing, and being duly
advised, the Court has determined that a
preliminary injunction should be entered

in this case against the State Defendants

to the extent set forth in this order.

App. 22

A preliminary injunction is
warranted under Rule 79 of the Oregon
Rules of Civil Procedure because it
appears at this time that plaintiffs are
entitled to the relief they request
pursuant to the second claim for relief
of their complaint, which relief consists
of restraining the continuance of conduct
that will sitet injury to plaintiffs
during the pendency of this litigation,
and because it appears that the State
Defendants are presently engaged in
conduct in violation of plaintiffs'
decreed water rights concerning’ the
subject matter of this case, which
conduct, if allowed to continue, would
render ineffectual any eventual judgment
in favor of plaintiffs.

This case concerns the irrigation

method known as “accumulation'" as it is

App. 23

practiced in Butter Creek, a tributary of
the Umatilla River. At the hearing,
plaintiffs contended that, under’ the
existing water-rights decree of this
court and as a matter of long-established
custom and practice, their accumulation
rights for this irrigation season should
have taken effect not later than February
11, 1988. The State Defendants contended
that they were not obligated to afford
accumulation rights to plaintiffs until
such time as plaintiffs signed a written
distribution plan for the 1988 irrigation
season in Butter Creek. After
considering all the evidence and argument
presented at the hearing, it appears to
the Court that plaintiffs are entitled to
be afforded accumulation rights in 1988
with an effective date of February 11,

1988 and that plaintiffs will sustain

App. 24

irreparable harm in the form of presently
incalculable crop losses unless they are
afforded the relief provided in this
order. It further appears that
plaintiffs are likely to prevail on the
merits with respect to their claim for
permanent injunctive relief.

Accordingly, the Court now orders as
follows pursuant to Rule 79 of the Oregon
Rules of Civil Procedure:

1. Defendants State of Oregon Water
Resources Department and Michael F. Ladd,
Watermaster of the State of Oregon Water
Resources Department, are hereby ordered
to afford accumulation for plaintiffs and
for each of the defendant water-users
effective February 11, 1988 for the 1988
irrigation season.

2. Except as otherwise provided in

this Order, all other terms and

App. 25

provisions of the irrigation plan known
as the "Butter Creek Distribution Plan
for 1988" ("Plan") shall remain in full
force and effect.

3. In accordance with’ the
directions of this Court, defendants
State of Oregon Water Resources
Department and Michael F. Ladd,
Watermaster of the State of Oregon Water
Resources Department, are hereby ordered
to make reasonable efforts to determine
who received water from Butter Creek
_ after February 10, 1988 and _ before
February 19, 1988 and to adjust their
accumulation rights in accordance with
the Plan based upon their usage during
that period of time.

Plaintiffs shall post a bond in the
sum of $20,000 within five (5) days after
the date of this order.

App. 26

IT IS SO ORDERED.
DATED this 17th day of May, 1988.

/s/ J.F. Olsen
Umatilla Circuit Court Judge

PRESENTED BY:

John ¢. Cahalan

DUNN, CARNEY, ALLEN, HIGGINS & TONGUE
851 S.W. Sixth Avenue, Suite 1500
Portland, Oregon 97204

Telephone: (503) 224-6440

Attorneys for Plaintiffs

App. 27

IN THE CIRCUIT COURT
OF THE STATE OF OREGON

FOR THE COUNTY OF UMATILLA

LOWELL SAYLOR, OREGON
TRAIL RANCHES, INC.
and ALFALFA ACRES, INC.,

Plaintiffs
Vv.

STATE OF OREGON WATER
RESOURCES DEPARTMENT;
MICHAEL F. LADD,
WATERMASTER, DISTRICT 5,
OF THE STATE OF OREGON
WATER RESOURCES
DEPARTMENT; COLUSI AMMON;
LEO ASHBECK; SIDNEY
BRITT; GLEN COCHRAN;
JOHN E. CORREA;

JOHN B. CORREA; DELBERT
BUD GRAHM; RALE BROS.,
INC., an Oregon corpor-
ation; BOB HAWKINS;
FRANK MADER; MADISON
RANCHES, INC., an Oregon
corporation; JOHN
MADISON; MIKE MCCARTY;
JERRY MYERS; FRANK
MUELLER; FRANK PEDRO;
WILLAMETTE PRODUCTION
CREDIT ASSOCIATION IN
LIQUIDATION; ROBERT
SCHILLER; WELDON

ee et et et et eet eet ee eet Set Set Steet eet Set et eet Steet Set Steet et et et tet eee eet Set See Steet Smet

Case No.
CV-88-283

AMZNDED
COMPLAINT
FOR
DECLARATORY
JUDGMENT AND
INJUNCTION

App. 28
WITHERRITE, GLEN )
CHOWNING and BURL )
WATTENBERGER, )
)
Defendants. )

Plaintiffs allege:
PARTIES AND JURISDICTION
1.

Plaintiff Lowell R. Saylor is a
citizen and resident of the State of
Oregon and, at all material times, has
been the owner of certain agricultural
real property in Umatilla County, Oregon,
together with the concomitant water
rights. Plaintiff Alfalfa Acres, Inc. is
an Oregon corporation with its principal
place of business in the State of Oregon
and, at all material times, has been the
owner of certain agricultural real
property located in Umatilla County,

Oregon, together with the concomitant

App. 29

water rights. Plaintiff Oregon Trail
Ranches, Inc. is an Oregon corporation
with its principal place of business in
the State of Oregon and has used the
above-referenced real property in
consideration for transferring to the
owners a portion of the annual crop yield
of the property.
2.

Defendant State of Oregon Water
Resources Department ("Department") is a
department of the government of the State
of Oregon. Defendant Michael F. Ladd
("Watermaster") is a citizen and resident
of the State of Oregon and, at all
material times, has been a _ person
employed by the Department as a
Watermaster within the meaning of Oregon
Revised Statutes § 540.020. The other

named defendants have been joined as

App. 30

defendants herein solely to enable them
to assert their interests, if any, in the
controversy.

3.

This case presents an actual
controversy within the jurisdiction of
this court, such that declaratory relief
and corresponding injunctive relief are

warranted under ORS 28.010, et seq.

STATEMENT OF CLAIMS

The agricultural productivity of
plaintiffs' real property is dependent
upon the application of irrigation water
derived from Butter Creek and Five Mile
Creek, which are natural surface public

water sources. Pursuant to Oregon

Revised Statutes § 540.045, the

App. 31

Department and the Watermaster are
required to regulate the distribution of
water from Butter Creek and Five Mile
Creek in accordance with plaintiffs'
existing water rights of record in the
office of the Department and as set forth
in related court decrees.
5.

The records of the Department
include and acknowledge the Butter Creek
Decree of the Circuit Court of Umatilla
County dated September 9, 1916, which
affirmed and adopted in relevant part the
Findings and Order of Determination of
the Board of Control dated January 22,
1912. By the terms of the Butter Creek
Decree, a water user is entitled: (1) to
divert and use the water’ user's

proportionate share of water at any time

after the commencement of the annual

App. 32

irrigation season when sufficient water
is available in Butter Creek to satisfy
the user's rights, and (2) to continue
such use until the user has received the
full entitlement of water for’ the
season. As water users under the Decree,
plaintiffs are also entitled to forego
the early use of water and to divert and
use water at a later time when it can be
used more effectively for their
property. This procedure is known as the
right of "accumulation." Plaintiffs are
entitled to exercise these rights of
accumulation under the terms of the
Findings and Order as adopted and
affirmed by the Butter Creek Decree and
by custom and usage which has_ been
followed by the other water users and by
the Department and its predecessors at

least since the inception of the water

.

App. 33

rights at issue in this case.
6.

The Department and defendant
Watermaster exercise control over the
distribution of water in Butter Creek.
In that capacity, they have prepared an
irrigation plan known as the "Butter
Creek Distribution Plan" for 1988.
Defendants have insisted that all water
users in the Butter Creek distribution
area, including plaintiffs, sign the |
Distribution Plan in order to exercise
their accumulation rights in 1988.

7.

Paragraph 7 of the Distribution Plan
provides that accumulation rights will
not accrue until the agreement has been
signed by all water users, and paragraph
6 of the Distribution Plan provides that

accumulation rights will not be

App. 34

recognized for water users who fail to
execute the plan. As a result of these
provisions, plaintiffs were faced with
the intolerable choice of either (1)
signing the plan and forfeiting
previously accrued accumulation rights;
or (2) refraining from signing the plan
and thereby forfeiting their accumulation
rights for the entire season. Plaintiffs
signed the Plan on March 21, 1988 only
after the Department agreed that this
would not be asserted as a waiver of
their right to iitigate their entitlement
to additional accumulation rights.
8.

The Department's and - the
Watermaster's refusal to recognize the
accumulation rights that accrued _ to

plaintiffs prior to March 21, 1988

constitutes a taking of plaintiffs'

App. 35

property without just compensation and a
denial of plaintiffs' property rights
without due process of law, all in
violation of the Fifth and Fourteenth
Amendments to the United States
Constitution.

9.

The foregoing refusal to recognize
plaintiffs' accumulation rights also
constitutes a violation of the
Department's and the Watermaster's
obligations and duties to plaintiffs
under the terms of the decree.

10.

Plaintiffs' accumulation rights also
arise as a matter of private contract
between plaintiffs and the other water
users exercising rights under the Butter

Creek Decree. The denial of plaintiffs'

accumulation rights therefore amounts to

App. 36

an impairment of contractual obligations

in violation of Section 10 of Article I

of the Constitution of the United States.
11.

In denying plaintiffs' accumulation
rights, the Department and the
Watermaster have acted under color of the
laws, regulations, customs or usages of
the State of Oregon in violation of
plaintiffs' rights, privileges and
immunities secured by the Constitution
and laws of the United States.
Plaintiffs are therefore entitled to
secure redress of these rights pursuant
to 42 U.S.C. § 1983.

12.

Because this is an action or
proceeding to enforce the provisions of
42 U.S.C. § 1983, plaintiffs would be

entitled to an award of their reasonable

App. 37

attorney fees pursuant to 42 U.S.C.
§ 1988 should they prevail in this

action.

13.
Paragraphs 1 - 12 are realleged.
14.

Plaintiffs have no adequate remedy
at law to redress the violations alleged
herein. The agricultural productivity of
plaintiffs' real property will be
substantially impaired and irreparable
harm will inevitably result unless
defendants are restrained from abridging
plaintiffs' accumulation rights.

WHEREFORE, plaintiffs pray for
relief as follows:

1. On their first claim for relief,

App. 38

a judgment and decree that defendants are
not entitled to insist on a waiver of
plaintiffs' accumulation rights as a
condition to plaintiffs' participation in
the 1988 distribution plan.

2. On their second claim for
relief, an order and decree pursuant to
ORS 28.080 restraining defendants from
denying plaintiffs' accumulation rights.

3. An award of plaintiffs'
reasonable costs and attorney fees
pursuant to 42 U.S.C. § 1988 and such
further relief as the Court may deem
appropriate.

DATED this 3rd day of May, 1988.

DUNN, CARNEY, ALLEN,
HIGGINS & TONGUE

By:

John C. Cahalan
Attorneys for Plaintiff

No.

IN THE SUPREME COURT
OF THE UNITED STATES

OCTOBER TERM, 1990

LOWELL SAYLOR, et al.,
Petitioners,
vs.
STATE OF OREGON, OREGON DEPARTMENT OF
WATER RESOURCES, and MICHAEL F. LADD,
WATERMASTER, DISTRICT 5, OF THE STATE
OF OREGON WATER RESOURCES DEPARTMENT,

Respondents.

AFFIDAVIT OF MAILING
PETITION FOR CERTIORARI

STATE OF OREGON )
: Ss.

County of Multnomah )

George J. Cooper, III, being duly
sworn, deposes and says:

I am a member of the Bar of the
Supreme Court of the United States.

on September 17, 1990, at
approximately _..___sé.m., I deposited in
the mailbox at the Main Office Station,
715 N.W. Hoyt Street, Portland, Oregon,
an envelope addressed to the Clerk of the
Supreme Court of the United States,
first-class postage prepaid, containing
40 copies of the petition for certiorari
in the above-entitled case.

George J. Cooper, III

Counsel of Record

851 S.W. Sixth Avenue, Suite 1500
Pacific First Federal Building
Portland, Oregon 97204-1357
(503) 224-6440

Counsel for Petitioners

SUBSCRIBED AND SWORN to before me
this 17th day of September, 1990.

Notary Public for Oregon

No.

IN THE SUPREME COURT
OF THE UNITED STATES

OCTOBER TERM, 1990

LOWELL SAYLOR, et al.,
Petitioners,
vs.
STATE OF OREGON, OREGON DEPARTMENT OF
WATER RESOURCES, and MICHAEL F. LADD,
WATERMASTER, DISTRICT 5, OF THE STATE
OF OREGON WATER RESOURCES DEPARTMENT,

Respondents.

CERTIFICATE OF SERVICE

I, George J. Cooper, III, a member
of the Bar of this Court, hereby certify
that on this 17th day of September, 1990,
three copies of the Petition for Writ of
Certiorari in the above-entitled case
were mailed, first-class postage prepaid,
to the following listed persons
representing all parties to the

proceedings below who are not petitioners
herein. I further certify that all
parties required to be served have been
served.

Solicitor General
Department of Justice
Washington, D.C. 20530

-Rives Kistler

Assistant Attorney General
400 Justice Building
Salem, Oregon 97310

(503) 378-4402

Counsel for Respondents

George J. Cooper, III

851 S.W. Sixth Avenue, Suite 1500
Portland, Oregon 97204-1397
(503) 224-6440

Counsel for Petitioners

- F< p — ao Baer eee eee eS eee Per iene

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2851%3A1. Public record. Not legal advice.