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DateNameCompanyComment
09/04/2024Lindsay ThaneSchwabe, Williamson & WyattThis public comment is submitted by Lindsay Thane, Attorney at Law, of Schwabe Williamson ?& Wyatt, on behalf of Daniel B. Dawson, Co-Personal Representative of the Estate of Ben ?Dawson Jr. Mr. Daniel Dawson requests denial of water right Application S-89552. Denial of ?Application S-89552 is required because the applicant, Cathy Sandberg, does not own nor have ?an easement that provides her with a legal right of access to tax lot 400 on which the point of ?diversion and a portion of the water system are located.? A water right application must include the name of “any owner of the land upon which the ?source of the water supply is located” and upon which any proposed water system will cross, ??“even if the applicant has obtained written authorization or an easement from the owner.” (OAR ??690-310-0040(1)(a)(B), (F)). The Department may not issue a water right permit if the applicant ??“[f]ail[s] to obtain written authorization, obtain an easement or acquire ownership of the land . . . ??.” (OAR 690-310-0030(1)(b); ORS 537.211(2), 537.139(1)).? Ms. Sandberg has not satisfied the Department’s criteria to obtain a permit for her Application S-??89552. Application S-89552 requests authorization to divert water from a spring area on tax lot ??400 and a portion of the water system is depicted as being located on tax lot 400. The owner in ?title of tax lot 400 is Ben Dawson, Jr. Application S-89552 correctly identifies on page 2 that the ?applicant, Ms. Sandberg, does not own all the lands from which the water is to be diverted, ?conveyed, and used. The application then incorrectly identifies that Ms. Sandberg has “a ?recorded easement or written authorization permitting access.” Application S-89552 attaches an ?Agreement dated June 10, 2016 (“Agreement”) between Ben Dawson Jr. and Catherine ??(“Cathy”) Sandberg, seemingly to provide evidence that Ms. Sandberg has satisfied the ?requirements to obtain a water right permit. However, the Agreement is not a grant of an ?easement interest. The Agreement is a promise to grant a future easement if the conditions in the ?Agreement are met. It is evident that the Agreement is for a prospective easement because it ?describes the easement in the future tense, including what it will provide, rather than describing ?what it does provide. This agreement discussing a prospective easement to be created in the ?future does not satisfy the Department’s statutory and regulatory requirements that to issue a ?water right permit an applicant who does not own the land must have an easement or must ?provide landowner consent. Even if Ms. Sandberg had a valid claim to a future easement to the ?requested point of diversion, Application S-89552 would be premature and would not meet the ?Department’s statutory criteria until such easement was actually granted. Ms. Sandberg has not ?satisfied the landowner requirements necessary for issuance of a permit for Application S-89552. ? Additionally, landowner consent cannot be obtained to cure the deficiency of Application S-??89552. Ben Dawson Jr. is deceased and the probate estate has control of the assets of this estate, ?which include the real property subject to the water rights application. Ms. Sandberg and Daniel ?Dawson are the Co-Personal Representatives of the Estate of Ben Dawson Jr., appointed by ?Douglas County Circuit Court Case No. 23PB95693. Per Oregon Statues, a Personal ?Representative has a duty to protect and retain assets owned by the decedent pending ?distribution or liquidation. Pursuant to ORS 114.415, when two or more persons are appointed as ?Co-Personal Representatives, “the concurrence of all is required for acts connected with the ?administration of the Estate.” While Ms. Sandberg, as the Co-Personal Representative and as the ?applicant, may agree to provide landowner consent on behalf of the estate, Daniel Dawson, the ?other Co-Personal Representative, does not at this time because it would be premature to grant ?such consent while the probate estate has control of the real property. ? Ms. Sandberg has not satisfied the Department’s landowner criteria to obtain a permit for her ?Application S-89552. Therefore, Daniel Dawson requests that the Department deny Application ?S-89552.?