Nanny State Alert: Man goes to jail for drinking rain water

posted at 10:41 am on August 10, 2012 by Jazz Shaw

You just can’t make this stuff up. A man in Oregon is currently in jail serving a thirty day term – along with a $1500 fine – for collecting rainwater and snow melt on his own property for drinking and household use. You think I’m kidding? I’m not.

Gary Harrington, the Oregon man convicted of collecting rainwater and snow runoff on his rural property surrendered Wednesday morning to begin serving his 30-day, jail sentence in Medford, Ore.

“I’m sacrificing my liberty so we can stand up as a country and stand for our liberty,” Harrington told a small crowd of people gathered outside of the Jackson County (Ore.) Jail.

Harrington was found guilty two weeks ago of breaking a 1925 law for having, what state water managers called “three illegal reservoirs” on his property. He was convicted of nine misdemeanors, sentenced to 30 days in jail and fined over $1500 for collecting rainwater and snow runoff on his property.

There’s simply not much more to say about this one. Let this be a lesson to everyone about keeping an eye on who you elect to public office and the policies they put in place once they are there. The law in question here may date back nearly a century, but it certainly could have have been taken off the books long before now if the political will existed to do so. The fact that it’s still being enforced demonstrates that it isn’t some ancient anomaly hanging around as a joke. And given the current, regulation heavy environment in Washington, seeing such laws passed in other places isn’t quite so far fetched as you may think.

Still, Mr. Harrington’s story caught me off guard. This one simply defies reason.


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If you need help learning how to look it up, go upstairs and ask your mom.

AngusMc on August 10, 2012 at 11:39 AM

Nobody makes that mistake. EVER.

CW on August 10, 2012 at 11:39 AM

Let’s be honest about this, he wasn’t just setting out some barrels to collect rainwater, he was building dams to interrupt flowing water.

JohnBrown on August 10, 2012 at 10:55 AM

I think the post is honest in this regard. It clearly states that he was collecting snow melt. The more relevant question is why that should be illegal.

If my kids pick up a handful of snow and eat it, are they stealing from the city?

RationalIcthus on August 10, 2012 at 11:40 AM

Yep nobody.

http://www.yelp.com/biz/your-welcome-inn-bethlehem

CW on August 10, 2012 at 11:41 AM

SWalker on August 10, 2012 at 11:35 AM

You don’t know the difference between Your and You’re, and I’m the idiot? Look up irony in the dictionary. If you need help learning how to look it up, go upstairs and ask your mom.

AngusMc on August 10, 2012 at 11:39 AM

This is the interwebs idiot, not a good place for anally retentive Grammar Nazi’s.

SWalker on August 10, 2012 at 11:41 AM

If my kids pick up a handful of snow and eat it, are they stealing from the city?

RationalIcthus on August 10, 2012 at 11:40 AM

Only if it would have melted and gone downstream.

Wow I sound crazy.

CW on August 10, 2012 at 11:41 AM

“You just can’t make this stuff up. A man in Oregon is currently in jail serving a thirty day term – along with a $1500 fine – for collecting rainwater and snow melt on his own property for drinking and household use.”

This is a lot more complex than this post suggests. He may use it for drinking and household use, but Harrington stated they were built for fire protection. Still a good reason, though, and it’s use for drinking might be reasonable if drilling a well is not sufficient. I don’t know what he uses the property so I don’t know whether it is the best use as a source for drinking water.

The 1925 law is not a statewide law, but a law that was passed to protect the water supply for the City of Medford and only applies to the Big Butte River watershed if I don’t presume to much on the details of the law.

An Heritage Foundation story states that Harrington could collect rainwater from roof runoff and from paved surfaces, so he could easily do what he wants to do if at least confined to household uses. I’d never suggest it for drinking water and he’d lose out on the fire protection use. (Quaification: I don’t know that Heritage is correct.)

I can’t find the transcript of the case so I don’t know if he was actually diverting water and not just collecting rainwater and snow melt from his property. Without the transcript, I wouldn’t know if some portion, large or small, also collects rainwater from other properties, which would be a diversion.

I do think Harrington has been screwed over by the process involved, especially with the issuance and later revocation of the of the permit he received and the money he put into his development.

Dusty on August 10, 2012 at 11:42 AM

Colorado claims ownership of all rainfall and snow runoff, but passed a strictly defined law in 2009 that allows individuals to collect rainwater. Before the new law, it was illegal in Colorado to gather rainwater and snowmelt that fell from a rooftop, patio or driveway into barrels.

cheeflo on August 10, 2012 at 11:44 AM

The official measurement is in acre-feet or gallons. The analogy to “olympic swimming pools” is so “regular people” can visualize just how much water that really is.

dentarthurdent on August 10, 2012 at 11:33 AM

I can visualize an acre and foot real good. I have no idea how many acre feet are in the gigantic “Olympic sized pool!”.

bbhack on August 10, 2012 at 11:44 AM

But damming a stream is a pretty big deal. You’re disrupting a lot of wildlife, and harming the landowners downstream as well.

hawksruleva on August 10, 2012 at 11:09 AM

Unless the “channels” originated off of his property I don’t see this as an argument.

Where the source of the channel originates has everything to do with the argument since this is rainwater. If it were a natural sprin-fed channel that had been diverted to a retention pond, this would be entirely different.

weaselyone on August 10, 2012 at 11:45 AM

They can have my rain barrel when they pry it from my cold, dead fingers.

UltimateBob on August 10, 2012 at 11:45 AM

a) they were not tributary fed.
b) they were legally permitted for 37 years
c) the City of Medford arbitrarily revoked his permits giving no reasonable or rational explanation.

SWalker on August 10, 2012 at 11:17 AM

Yet, people will still say he is in the wrong because the government decided, after 37 years of permitting him, that he is wrong now.

So if the city decides to change the set back ordinance for your home, after living there for 37 years, you now have to move your home?

Yet, some would say yes because the government tells you to…listen everyone, the government works for us…not to intimidate us, not to throw us in jail, but to work for us.

Instead, they throw him into jail…it’s the easiest way.

right2bright on August 10, 2012 at 11:46 AM

Dusty on August 10, 2012 at 11:42 AM

According to an interview with Mr. Harrington and several articles, three different government authorities used his ponds to fight fires in the area.

Cindy Munford on August 10, 2012 at 11:46 AM

People on the east coast don’t understand how important water rights are in the west. So it is not as egregious as some might think. Rain run-off feeds creeks and streams, which provide the water to the people downstream. If someone owns that water right and you divert it, you are stealing from them.

MTinMN on August 10, 2012 at 10:49 AM

This make sense.

CorporatePiggy on August 10, 2012 at 10:58 AM

Not in the slightest. At what point does water falling on my property belong to someone else? If I point my head up to the sky when it’s raining and open my mouth to catch a few drops, is that stealing? If it’s snow on the ground and I pick up a bit & put it in my mouth, is it stealing then? Seems to me that water on my property belongs to me, plain and simple.

I mean, apply this to something else and you’ll see how ludicrous it is. Can I claim the pollen from my neighbor’s tree because it MIGHT fertilize my tree? I want my pollen rights, NOW!

RationalIcthus on August 10, 2012 at 11:46 AM

You don’t know the difference between Your and You’re, and I’m the idiot? Look up irony in the dictionary. If you need help learning how to look it up, go upstairs and ask your mom.

AngusMc on August 10, 2012 at 11:39

Why did you capitalize your and you’re ? I think someone is not really all that versed in regards to English grammar.

CW on August 10, 2012 at 11:48 AM

All your rain are belong to us.

disa on August 10, 2012 at 11:49 AM

You’re limited in at least some areas of Texas in how much you can draw from the ground. It’s not surprising that some limitation would also be placed on capturing surface flow, and as others have noted he strayed into diverting streams and making pretty large dams.

Fun story about rainwater collection: there is a parking garage owned by a city here in TX that mandated water collection as part of the garage–the mayor even came to the opening of the parking garage, if you can believe it. This is one of the top 5 largest cities in TX we’re talking about. At the very end of the project, they realized that the drainage had not been properly designed, and only half of the rainwater falling on the garage could actually be collected. So the very prominent tanks that sit in front, advertising how “green” this thing is, are way overbuilt and at least one of the three will likely be perpetually empty.

TexasDan on August 10, 2012 at 11:49 AM

the Oregon Water Resources Department, claims that Harrington has been violating the state’s water use law by diverting water from streams running into the Big Butte River.

Hopefully jazz will post an update acknowledging this isn’t as simple a situation as he suggests. It makes you wonder if he even read the entire article he links to.

Also “big butte river”

red_herring on August 10, 2012 at 11:49 AM

How far away can we be from being charged a water use fee when it rains?

BobMbx on August 10, 2012 at 11:50 AM

Another fun example where the government can do what we cannot all the while trampling on the citizens’ rights.

CW on August 10, 2012 at 11:50 AM

How far away can we be from being charged a water use fee when it rains?

BobMbx on August 10, 2012 at 11:50 AM

I’m in LV, what is this word “rain” that you folks keep refering to?
/

VegasRick on August 10, 2012 at 11:54 AM

As far as I can recall, water retention from rivers and streams actually started out west where water has always been at a premium. The rivers out there are pretty important to farmers, towns, and cities.

Here in Michigan, on my property specifically, there are 3 streams. They are identified as county tributaries (2 of them, the third is a “drain”). I don’t block any of them, but there are non tributary sections that were added on later. I plan to fill those in and that will not affect the main flow. No problem there according to the county and township.

I also have a lake on the property that is ground water fed. I enlarged and deepened the lake a couple years ago and plan to enlarge it further. The township didn’t like the idea, god knows why, they wanted me to connect the lake to the stream that surrounds the property. I refused, they can do nothing about it specifically because I’m not affecting the water flow anywhere. The only thing I’m doing by enlarging the lake is improving the resource for wildlife use, but I’m also increasing evaporation rates. The deal is a wash, since Sandhill Cranes, Canada Geese, Herons, and other birds use the lake because it’s in their migratory path. Frogs, fish, turtles, and other creatures are now having a population increase around the lake and streams.

We had a 40 acre grass fire here a month ago, the fire department was happy the lake was there, it helped them prevent the fire from becoming a 5,000 acre fire, and they replaced some of the fish they killed with their bucket-scoop thing. Win-win.

I own this property and ALL of the resources on it. The people downstream don’t have any MORE right to the water here than I do, as long as I don’t stop the flow, everything is peachy. I wouldn’t want to stop the flow anyway, if I did I’d drown!

This guy sounds to me like he didn’t bother to look at the law and work within it to make a plan to sustain the resource for everyone. He also doesn’t sound like he knows how to properly argue his case, as evidenced by his 30 day stay in the county motel.

My rights stop when they effect you, your rights stop when they effect me, and the government HAS NO RIGHTS. That’s as it should be. If we start asserting that the ‘rights’ of one trump the rights of another we are no longer equals. What ultimately will happen then is the government will feel free to cross onto your property and take whatever they like in the name of ‘others’ rights. Next up under attack will be your right to NOT have the state come and drill for gas and oil on your property without permission or compensation. I don’t think we want to go there, and that’s where obamacommies legion is leading us.

Wolfmoon on August 10, 2012 at 11:55 AM

Ok, here are my questions.If Oregon arrested this guy for diverting water into a retention pond. Shouldn’t Oregon arrest themselves for diverting or pumping water out of streams and lakes to feed their fish hatcheries? Or should Oregon demand that villages and towns that have reservoirs, be arrested? Or should Oregon demand that all manmade lakes, like Fishhawk lake be drained? This is total political BS, if the law covers one, it should cover all.

stormridercx4 on August 10, 2012 at 11:55 AM

This is obtuse. It wasn’t for drinking the rainwater that he went to jail, it was for collecting it. The issue is the use of a natural resource.

paul1149 on August 10, 2012 at 11:55 AM

Sounds like he should have outsourced the job to beavers. Or would Oregon jail the beavers, too?

cane_loader on August 10, 2012 at 11:07 AM

Right now the Ducks are popular but the Beavers are not. So jailing Beavers would not cause much of an uproar, even if the Beavs are innocent of any law-breaking.

Then again, a significant pctg. of Beaver fans think that several of the Ducks should be locked up. But that back-and-forth condition exists in every rivalry.

Bottom line: what state with restrictive water rights names their two biggest sports programs the Ducks and the Beavers?

rwenger43 on August 10, 2012 at 11:56 AM

TexasDan on August 10, 2012 at 11:49 AM

I think this is the very thing that makes most people suspicious of the government. You not only question if it’s the right thing but if they even know what the heck they are talking about.

Cindy Munford on August 10, 2012 at 11:56 AM

“[God] sends rain on the just and on the unjust…” — Matthew 5:45

Just don’t try to make good use of that God-given rain without the government’s approval.

KyMouse on August 10, 2012 at 11:57 AM

Bottom line: what state with restrictive water rights names their two biggest sports programs the Ducks and the Beavers?

rwenger43 on August 10, 2012 at 11:56 AM

They are not beaver beavers.

VegasRick on August 10, 2012 at 11:58 AM

I’m in LV, what is this word “rain” that you folks keep refering to?
/

VegasRick on August 10, 2012 at 11:54 AM

It’s a large amount of money thrown at a stripper all at once.

Flange on August 10, 2012 at 11:59 AM

BREAKING:

UN declares the Grand Canyon as a major environmental disaster; fines the US $5,000,000,000,000.

UN spokesman says the run-off from the Rocky Mountains and other tributaries to the Colorado River have caused devastating damage to the environment by eroding enormous amounts of soil along its route. The feature known as the “Grand Canyon” is the result of negligence by the US.

BobMbx on August 10, 2012 at 11:59 AM

Okay, here is a lot of other information on the case at a site supporting Harrington’s case, and it appears pretty thorough as far as I’ve read it.

The impression, though, left by narrowing the argument in this post to Harrington just wanting to collect water for drinking and household uses is wildly misleading. That said, the government’s case and the judgment against Harrington does look to be a miscarriage of justice.

Dusty on August 10, 2012 at 12:02 PM

Another fun example where the government can do what we cannot all the while trampling on the citizens’ rights.

CW on August 10, 2012 at 11:50 AM

.If Oregon arrested this guy for diverting water into a retention pond. Shouldn’t Oregon arrest themselves for diverting or pumping water out of streams and lakes to feed their fish hatcheries? Or should Oregon demand that villages and towns that have reservoirs, be arrested? Or should Oregon demand that all manmade lakes, like Fishhawk lake be drained? This is total political BS, if the law covers one, it should cover all.

stormridercx4 on August 10, 2012 at 11:55 AM

CW on August 10, 2012 at 12:03 PM

This is obtuse. It wasn’t for drinking the rainwater that he went to jail, it was for collecting it. The issue is the use of a natural resource.

paul1149 on August 10, 2012 at 11:55 AM

You almost sound Orwellian . Congrats!

CW on August 10, 2012 at 12:04 PM

UN spokesman says the run-off from the Rocky Mountains and other tributaries to the Colorado River have caused devastating damage to the environment by eroding enormous amounts of soil along its route. The feature known as the “Grand Canyon” is the result of negligence by the US.

BobMbx on August 10, 2012 at 11:59 AM

Silly, irresponsible us.

And then we add the insult of celebrating the place. What nerve!

rwenger43 on August 10, 2012 at 12:09 PM

All I can say is, man I’m glad I’m not out West. I’ll stick to the old Mountains. Where there is plenty of water and protection of my water rights. At least for now. ; )

Bmore on August 10, 2012 at 12:09 PM

Michigan is currently nearly completely covered in a water bearing low pressure system that won’t stop bearing water. I live on a hill and it’s stressing my septic drain field at the moment. I can’t flush my toilet.

I’m going to sue Iowa for stealing all the drought.

Wolfmoon on August 10, 2012 at 12:10 PM

I’d need more facts, here.

From the article:

T

he Oregon Water Resources Department, claims that Harrington has been violating the state’s water use law by diverting water from streams running into the Big Butte River.

Ah, that’s better. The charge must have been based on those allegations. A conviction means someone reviewed the evidence and decided the charges were supported beyond a reasonable doubt.

In most states, you’re not allowed to divert water from streams, even if you collect an amount equal to runoff. It’s different if you have collectors on your downspouts or a retention pond off parking lots or driveways.

As with all criminal cases, the facts are really important. And by facts, I mean evidence adduced at a trial, not unsupported claims.

EconomicNeocon on August 10, 2012 at 12:16 PM

Okay, here is a lot of other information on the case at a site supporting Harrington’s case, and it appears pretty thorough as far as I’ve read it.

The impression, though, left by narrowing the argument in this post to Harrington just wanting to collect water for drinking and household uses is wildly misleading. That said, the government’s case and the judgment against Harrington does look to be a miscarriage of justice.

Dusty on August 10, 2012 at 12:02 PM

And that is exactly what this is, a miscarriage of justice and abuse of authority on the part of Medford Org. Here in San Diego County (Southern California) I have a father-in-law and several friends who own property and maintain reservoirs of exactly the same kind as Harrington does.

Those reservoirs derive their water in exactly the same manner as Harrington’s dose. The permitting issues here in San Diego, where water rights are very extensively regulated are predicated on tributary diversion and potential public safety issues.

Harrington’s reservoirs do not constitute a public safety issue and do not divert water from any existing tributaries. The issue’s regarding the Harrington case are derived from residents in his area complaining at a bare minimum 20 years after the creation of his reservoirs.

This is a case of the City of Medford abusing existing statutes and nothing more.

SWalker on August 10, 2012 at 12:16 PM

According to an interview with Mr. Harrington and several articles, three different government authorities used his ponds to fight fires in the area.

[Cindy Munford on August 10, 2012 at 11:46 AM]

Thanks, Cindy. I found that afterwards at the website I mentioned (but did not link, sorry, so here it is).

I’m not going to read much farther into this story as I’m pretty sure Harrington has confined his collection to diffuse water runoff and not diversion. That doesn’t mean I would oppose the 1925 law or (with qualifications for safeguarding riparian rights) laws similar to it as those apply to diversion.

As I said in my last comment, I am of the mind that Harrington has gotten royally screwed on this, though.

Dusty on August 10, 2012 at 12:20 PM

Ah, that’s better. The charge must have been based on those allegations. A conviction means someone reviewed the evidence and decided the charges were supported beyond a reasonable doubt.

In most states, you’re not allowed to divert water from streams, even if you collect an amount equal to runoff. It’s different if you have collectors on your downspouts or a retention pond off parking lots or driveways.

As with all criminal cases, the facts are really important. And by facts, I mean evidence adduced at a trial, not unsupported claims.

EconomicNeocon on August 10, 2012 at 12:16 PM

The charges were based on complaints from Harrington’s neighbors and the assertion that Harrington was diverting water from tributaries was used to justify those complaints, it does not mean that Harrington was in fact diverting water from any tributary.

Nor does the conviction mean that any unbiased review took place.

SWalker on August 10, 2012 at 12:21 PM

How far away can we be from being charged a water use fee when it rains?

BobMbx on August 10, 2012 at 11:50 AM

Already happened in Colorado Springs – they tried a few years to hit us with a “stormwater drainage fee” that was based on the square footage of your property. Determined in court to be an illegal tax, so it was removed.

dentarthurdent on August 10, 2012 at 12:23 PM

I can see a lot of people here do not understand hydrology issues and legal water rights as it refers to western states.

If you are diverting water from a natural watershed & keeping it from flowing naturally, there is a good possibility, especially in a very rainy area, you are going to mess with someone’s downstream water rights.
I once took a 3 credit hour water rights class in college when I was going to UWYO at Laramie.
The issue of water rights is very complicated.
From what I can gather, this guy pushed an issue he shouldn’t have.
The state & Feds have some power here, as they rightfully should.

Badger40 on August 10, 2012 at 12:26 PM

This isn’t the same, but it follows the same theme. In the People’s Republic of Maryland, we well-and-septic-system households are being taxed… for NOT using city/country water and sewage.

That’s right. Because we live so far out that no municipality has bothered to run water and sewage to us, we now pay for the privilege of not having a government service. Maybe this is where Obama got the idea of taxing people for NOT buying health insurance. Perhaps soon the state will tax me for not using public transit, or not attending Ravens or Orioles games.

JamesS on August 10, 2012 at 12:28 PM

I once took a 3 credit hour water rights class in college when I was going to UWYO at Laramie.

Badger40 on August 10, 2012 at 12:26 PM

I realized just now this comment might seem I’m touting myself an expert.
Obviously I’m not.
The one class I took just made me realize this is a BIG issue in western states especially. I learned a lot from this course enough to know the answers are rarely ever simple.
And I also took a hydrogeology class as part of my major.
Surface & underground water supplies are complicated to study.
There are people here trying to simplify this issue & you can’t.
I always tell my HS students that the world looks like this:
1/2 of everything can be explained very simply & the other half cannot be.
Wisdom is when you know how each situation needs to be explained.

The complicated 1/2 needs technical knowledge to be explained.

Badger40 on August 10, 2012 at 12:30 PM

Bmore on August 10, 2012 at 10:59 AM

Actually Oregon struck a major blow against deeded water rights about 10 years ago. They got a court decision to quit allowing water to go to a number of ranchers and farmers who had deeded water rights going back to the mid 1800′s. California then followed Oregon’s lead in it’s Snail Darter suit.

chemman on August 10, 2012 at 12:34 PM

Where to begin Jazz. As a Federalist, I believe in the nanny state. I believe in the grandpa state and the baby turtle state also. New York can ban big drinks and nail clippers if the idiots who elected them allow it. Is no one in Oregon outraged about this? Then why should I be? Guy’s going to spend a month in the Mayberry jail. Sure, it’s stupid. Was he warned? Did he know he wasn’t supposed to create the reservoirs and did it anyway? It’s a 1925 law. Not exactly known as the period of great environmentalism. Why was the law passed? What was the intent? Is this a state law or a Medford ordinance?

The reason we don’t want the Federal government involved in this type of crap is because every province, small or large, would be subject to the same regulation with sentences being even more severe. Generally.

This guy isn’t standing up for Federal rights no matter how much you or he protest. This is an 11 year battle. He’s not collecting water in a bucket, he’s built several ponds that are 13 feet deep and some as large as an acre. If just 30 of his neighbors decide to do the same, does that create a problem? How about 60? Or 160?

If the state ordinance is stupid, he’s had 11 years to prove it. If he’s failed because the zoning officials are stupid, then he needs to demonstrate that also. But he may have failed because he’s an idiot who refused to get a permit for something that may be affecting his neighbors. Are his ponds clean? Do they harbor mosquitos and therefore possibly West Niles? What would happen if his neighbors also decided to build 20 foot high water dams to feed their 40 acre-feet of water, do you concede that a problem may develop?

I don’t want the Federal government telling Oregon how to manage their state water resources. I’m a states rights kinda guy. But states rights means just that…the state has the right to regulate the resources of the state. And the people of the state have the right to regulate the representatives who appoint or hire the managers of those resources.

This guy did the right thing by getting his case some publicity. If this 87 year old law needs repeal or some tweaking, the people of the state can decide. But he may also have demonstrated why fines and jail sentences are attached these ordinances.

The State of Oregon v. Rain Man

Leonard210 on August 10, 2012 at 12:36 PM

The issue of water rights is very complicated.

Badger40 on August 10, 2012 at 12:26 PM

Yes. In Colorado water is legally defined as “tributary”, “non-tributary”, and “not non-tributary”. Obviously the lawyers are VERY heavily involved in this. This link is just the state web site definition of “tributary”. Anyone interested enough to do more research can look over the rest of the web site.

http://water.state.co.us/groundwater/GWAdmin/UseAndMeasurement/Pages/default.aspx

Just because rain or snow falls on your property does NOT mean you actually have any rights to keep and use that water.

Those reservoirs derive their water in exactly the same manner as Harrington’s dose. The permitting issues here in San Diego, where water rights are very extensively regulated are predicated on tributary diversion and potential public safety issues.

SWalker on August 10, 2012 at 12:16 PM

And every state is different.
My sister in Maine has proprty with 3 natural springs flowing into a stream at the edge of their property. They built a 30 foot deep 2 acre pond around them with no trouble from the government. However, they had all kinds of problems getting their well and leechbed fully approved.

dentarthurdent on August 10, 2012 at 12:37 PM

Next thing you know Kalifornia will ban planting trees because they suck up all the ground water.

Wolfmoon on August 10, 2012 at 12:39 PM

Yes, water laws that existed for thousands of years are now tyranny.

Next up: This river goes through my land so I can pour poison in it! For Freedom or something!!

lester on August 10, 2012 at 12:40 PM

But people can get hurt drinking rain water.

J.E. Dyer on August 10, 2012 at 12:43 PM

Next up: This river goes through my land so I can pour poison in it! For Freedom or something!!

lester on August 10, 2012 at 12:40 PM

Well we know dishonest leftists have existed for over 220 years.

NotCoach on August 10, 2012 at 12:45 PM

But people can get hurt drinking rain water.

J.E. Dyer on August 10, 2012 at 12:43 PM

One can boil it and or add clorine tabs to make it safe…

Scrumpy on August 10, 2012 at 12:45 PM

Badger40 on August 10, 2012 at 12:30 PM

I understood what you were saying. I’ve never taken a course, but I was on a town council for 3 years and dealt directly with the public works department a lot for a town that depends entirely on well water – but had to comply with surface water rights issues because of the depth of some of the wells. That doesn’t make me an expert – I just have enough knowledge to know, as you do, that it is extremely complicated. It also gave me a good view into just how important water is to the downstream users out here in the west – which is why it has gotten so complicated.

dentarthurdent on August 10, 2012 at 12:46 PM

Next up: catching a cold/flu virus will get you arrested for hiding biological weapons in your body. Cremation to follow.

Wolfmoon on August 10, 2012 at 12:46 PM

I don’t want the Federal government telling Oregon how to manage their state water resources. I’m a states rights kinda guy. But states rights means just that…the state has the right to regulate the resources of the state. And the people of the state have the right to regulate the representatives who appoint or hire the managers of those resources.

Leonard210 on August 10, 2012 at 12:36 PM

THIS.
I wholeheartedly agree with this statement.
Here in ND we fully resent the Federal Govt coming in & telling us what to do & how to do it.
North Dakotans know how to manage their resources.
LEave us the hell alone.
The Feds should only get involved when you have squabbles btwn states regarding environmental issues, like discharge rates etc.

Badger40 on August 10, 2012 at 12:47 PM

Nothing but rain water and grain alcohol. Now help me with this belt Mandrake.

forest on August 10, 2012 at 10:47 AM

“Would you like a shot of fluoride for a chaser, Jack?”

Del Dolemonte on August 10, 2012 at 12:51 PM

right2bright on August 10, 2012 at 11:46 AM

Federal felonies have gone from 3600 to over 4800 in the last decade. According to a legal source we all commit an average of 3 felonies a day. Isn’t government grand.

chemman on August 10, 2012 at 12:53 PM

If you are diverting water from a natural watershed & keeping it from flowing naturally, there is a good possibility, especially in a very rainy area, you are going to mess with someone’s downstream water rights.

[Badger40 on August 10, 2012 at 12:26 PM]

I do agree, Badger40, except I think you meant “not very rainy area”. And it is complicated, as you note in your later comment. The problem as I see it now is what a) what the law says and, b) are they reading it properly.

The big problem I see here is the intent to focus on what might be referred to as riparian rights (drinking and household uses), when it isn’t quite that simple, as evidenced by local fire departments using it to fight fires.

Dusty on August 10, 2012 at 12:54 PM

chemman on August 10, 2012 at 12:34 PM

If memory serves, I seem to remember a huge water issue surrounding the San Joaquin Valley a couple or few years back. Left the fields go fallow over it f I am remembering correctly.

Bmore on August 10, 2012 at 12:54 PM

Bmore on August 10, 2012 at 12:54 PM

You are correct… Many Farmers lost their fields crops etc, people lost jobs, it was a disaster seeing fertile fields turned into dust.

Scrumpy on August 10, 2012 at 12:57 PM

Yes, water laws that existed for thousands of years are now tyranny.
lester on August 10, 2012 at 12:40 PM

You must be one of those publik edcukated persons who always got A’s for trying.

F-

chemman on August 10, 2012 at 12:59 PM

If memory serves, I seem to remember a huge water issue surrounding the San Joaquin Valley a couple or few years back. Left the fields go fallow over it f I am remembering correctly.

Bmore on August 10, 2012 at 12:54 PM

Yes, protect a bait fish while elimination nearly 70 percent of America’s produce production. Next time you go to the grocery store and vegetables cost 4 times as much as they did 5 years ago, be sure to thank a liberal.

SWalker on August 10, 2012 at 12:59 PM

Bmore on August 10, 2012 at 12:54 PM

That was the California Snail Darter case.

chemman on August 10, 2012 at 1:00 PM

People on the east coast don’t understand how important water rights are in the west. So it is not as egregious as some might think. Rain run-off feeds creeks and streams, which provide the water to the people downstream. If someone owns that water right and you divert it, you are stealing from them.

MTinMN on August 10, 2012 at 10:49 AM

That’s interesting, but don’t you own the water rights on your own property? I’ve never had to even think about this having lived in Michigan most of my life and surrounded by fresh water.

Flange on August 10, 2012 at 10:55 AM

It all depends on what your legal description for the property (the deed) says.

If water access or water rights are specifically mentioned in the deed as an amenity, beware. Same with other things like “mineral rights”.

Many years ago I took a real estate course where we learned about the “Bundle of Rights” concept of property ownership. Here’s a brief synopsis:

http://realestate.about.com/od/ownershipandrights/f/bundle_of_right.htm

Del Dolemonte on August 10, 2012 at 1:00 PM

except I think you meant “not very rainy area”.

Dusty on August 10, 2012 at 12:54 PM

I guess I mean both.
A lot of water versus very little water can still be greatly impacted by water diversion good or bad.

Badger40 on August 10, 2012 at 1:02 PM

Yes, water laws that existed for thousands of years are now tyranny.
lester on August 10, 2012 at 12:40 PM

You must be one of those publik edcukated persons who always got A’s for trying.

F-

chemman on August 10, 2012 at 12:59 PM

I give you an F as well.
Now that you have a failing grade from 2 certified teachers at the HS level & above, feel free to study a little harder next time.

Badger40 on August 10, 2012 at 1:04 PM

If memory serves, I seem to remember a huge water issue surrounding the San Joaquin Valley a couple or few years back. Left the fields go fallow over it f I am remembering correctly.

Bmore on August 10, 2012 at 12:54 PM

Yes. And it was the Federal government telling the state how to allocate their water. A state that had already been managing their water just fine. The state of California, in fact, has one of the most sophisticated water systems in the world. Moving water over hundreds of miles from mountains to coastal areas. What the hell is the Federal government doing telling THEM how to manage their water?

Leonard210 on August 10, 2012 at 1:07 PM

Dusty on August 10, 2012 at 12:20 PM

I don’t know if he got screwed or not but the government sure didn’t mind helping themselves when needed. Very confusing issue.

Cindy Munford on August 10, 2012 at 1:13 PM

Well Jazz, kudos for posting this after all. I had read this story, what a week or two ago, kinda laughed and blew it off as just strange. As usual the great commenters of HA have helped me in forming my opinion of events. Two days after 9 11 I started moving with most all efforts towards moving totally off grid. No I’m not the wacko type. Just thought it might be prudent and it was something I could both enjoy and afford financially. I have enjoyed most of it immensely. Old timers where I am are great folks to learn from also. I don’t just mean because of the shine either. Lol! Folks my way are very self reliant people. One thing that many do or grew up with is to have a trout pond. I had been considering it for a while now. This article and because you posted it Jazz have made me decide to expedite the creation of said pond. Besides I love pan fried trout. Thanks!

Bmore on August 10, 2012 at 1:14 PM

chemman on August 10, 2012 at 1:00 PM

I thought it was the Delta Smelt. All I know for sure is it isn’t human.

Cindy Munford on August 10, 2012 at 1:15 PM

Bmore on August 10, 2012 at 1:14 PM

They will probably find a way to tax you for what you don’t use. Some kind of “minimum”.

Cindy Munford on August 10, 2012 at 1:18 PM

Also “big butte river”

red_herring on August 10, 2012 at 11:49 AM

It is similar to Exit 69 at Big Beaver Road off of I-75 in Michigan.

P.S. AngusMc how was my grammar?

Conservative4Ever on August 10, 2012 at 1:20 PM

…but safety issues are real and the State can ill afford to make exceptions, private dams in most states are subject to permitting and inspection for good reasons.

Difficultas_Est_Imperium on August 10, 2012 at 11:10 AM

Absolutely. See South Fork Dam and Johnstown Flood for the good reasons.

reddevil on August 10, 2012 at 11:22 AM

Here in New Hampshire in the mid 1990s a private dam failed, and the resulting flood wiped out a whole section of a State highway downstream, killing a woman in a truck.

http://en.wikipedia.org/wiki/Meadow_Pond_Dam

http://www.winnipesaukee.com/forums/showthread.php?t=1343

And 10 years later, out on the island of Kaua’i, a similar thing happened.

http://en.wikipedia.org/wiki/Ka_Loko_Reservoir

Del Dolemonte on August 10, 2012 at 1:21 PM

First off, the dude should not go to jail for diverting water. This is something that should of been resolved in the civil courts.

Second, I know this is hard for lots of you people from the east to understand, but out west it is fairly common for property owners to not own the mineral rights or the water rights on their property. Many deeds contain exceptions for mineral and water rights. Yes, this means that if you discover gold or oil on your own property, you may not have a legal right to it (or more accurately, someone else has a superior right to it). Many of these exceptions date back a hundred years when mining companies and railroads owned large chunks of the west, or it was originally Federal land and Congress had sold the mineral rights.

Water rights are similar but a little different. The dude here may be entitled to catch and collect rain water for use on his property, but he certainly cannot be diverting streams and seasonal runoff that has historically flowed across his property. Someone else owns that water.

Captain Kirock on August 10, 2012 at 1:25 PM

In Cali, fed and state wildlife officials demand condos turn over their pool to ducks. Yes, ducks.

Ducks Take Over Pool

PattyJ on August 10, 2012 at 1:25 PM

Your kidding right? If you are not every time I go into the city for the ball game or drive past ( which never happens because I have no use for that town besides WTMJ talk radio ) I will point and laugh… hard.

watertown on August 10, 2012 at 11:14 AM

I’m dead serious

Steve Eggleston on August 10, 2012 at 1:29 PM

Many of these exceptions date back a hundred years when mining companies and railroads owned large chunks of the west, or it was originally Federal land and Congress had sold the mineral rights.

Captain Kirock on August 10, 2012 at 1:25 PM

A lot of people don’t understand this.
In ND, when the state was being settled in the late 1800s, there were a lot of out of state speculators who bought property & had never been here. There still area

Badger40 on August 10, 2012 at 1:30 PM

BREAKING:

UN declares the Grand Canyon as a major environmental disaster; fines the US $5,000,000,000,000.

UN spokesman says the run-off from the Rocky Mountains and other tributaries to the Colorado River have caused devastating damage to the environment by eroding enormous amounts of soil along its route. The feature known as the “Grand Canyon” is the result of negligence by the US.

BobMbx on August 10, 2012 at 11:59 AM

Better not tell that to the Chinese; the Grand Canyon is part of our collateral for the National Debt. As are all of the other National Parks.

Del Dolemonte on August 10, 2012 at 1:31 PM

The case history in water law has become so convoluted that many things that people do in the west as a matter of traditional common sense regarding their use and management of water are now patently illegal, even if they do not know it.

I’m not saying this situation is correct or desirable, but it is the state of water law practice today.

This issues are only coming to the fore as fresh surface water and groundwater resources become more scarce. And governmental entities are going to become more and more bold in enforcing stuff that has been on the books for years, but as yet up to now had not been used much.

Difficultas_Est_Imperium on August 10, 2012 at 1:34 PM

Yes, water laws that existed for thousands of years are now tyranny.

Next up: This river goes through my land so I can pour poison in it! For Freedom or something!!

lester on August 10, 2012 at 12:40 PM

Oregon has been a state for thousands of years? Do tell!

Bugs Bunny takes lester to school about water rights

Del Dolemonte on August 10, 2012 at 1:37 PM

F-

chemman on August 10, 2012 at 12:59 PM

I give you an F as well.
Now that you have a failing grade from 2 certified teachers at the HS level & above, feel free to study a little harder next time.

Badger40 on August 10, 2012 at 1:04 PM

Thank you both for your service!

A+ x 2

Del Dolemonte on August 10, 2012 at 1:41 PM

One can boil it and or add clorine tabs to make it safe…

Scrumpy on August 10, 2012 at 12:45 PM

People get hurt boiling things and adding chlorine tabs too. The only way to keep people from getting hurt is to have government provide everything for them and make all their decisions for them.

J.E. Dyer on August 10, 2012 at 1:44 PM

A lot of people don’t understand this.
In ND, when the state was being settled in the late 1800s, there were a lot of out of state speculators who bought property & had never been here. There still area

Badger40 on August 10, 2012 at 1:30 PM

Yep. Many mineral rights exceptions I encounter date back to the late 1800s. Land speculators would buy large chunks of property and then not be able to sell it. To get something out of the property, they would sell off the oil and mineral rights.

People from back east have a hard time understanding water rights. They have so much of it. They usually fight over where it goes or who is going to clean it up, not who actually owns it or uses it. They don’t understand that in large chunks of the west, real property is almost worthless without water. Most of the west is a desert.

Captain Kirock on August 10, 2012 at 1:44 PM

With some of the answers I’ve read, scares me. I see how easy it is for tyrannical city councils to gain so much power. People are willingly giving it to them thinking government knows best.

Conservative4Ever on August 10, 2012 at 1:49 PM

Don’t tell anyone – but I’m stealing water from Mexico – hidden in tequila bottles…..

dentarthurdent on August 10, 2012 at 1:51 PM

J.E. Dyer on August 10, 2012 at 1:44 PM

They could wear a helmet!

Cindy Munford on August 10, 2012 at 1:53 PM

This really should be a non-story.

Oregon (and by extension, its municipalities) can make whatever water laws they want (within reason). Oregon is a prior appropriation state, which means that the most senior user of a water source (for example, a river) has the highest priority, even if he is downstream from a junior user. Basically, if the upstream junior user is using so much water that it harms the senior user, that senior user can use the force of law to prevent the junior user from doing so. If every year there is a path for snow melt to travel into a river or stream, then interfering with that path could be harming the rights of another. These kinds of water rights are among some of the oldest state laws in our country. I fail to see the problem here. Federalism is working just fine in this case. Don’t like it, throw the bums out and elect people who will change the law.

Othniel on August 10, 2012 at 1:54 PM

Hmm. I was trying to link something; let’s see if this works…

http://cms.oregon.gov/owrd/pages/pubs/aquabook_laws.aspx

Othniel on August 10, 2012 at 1:55 PM

With some of the answers I

dentarthurdent on August 10, 2012 at 1:55 PM

With some of the answers I’ve read, scares me. I see how easy it is for tyrannical city councils to gain so much power. People are willingly giving it to them thinking government knows best.

Conservative4Ever on August 10, 2012 at 1:49 PM

Yes government entities at all levels can become abusive and tyrannical – if the wrong people are elected (see current occupant of the WH).
However, the water laws out west were originally written by agreement between the early settlers (mostly ranchers and farmers) to ensure they all got their share of the limited water supply so they could all survive. If one guy blocks up a stream to keep and use the water for himself, the people downstream are destroyed.

dentarthurdent on August 10, 2012 at 1:56 PM

Steve Eggleston on August 10, 2012 at 1:29 PM

That picture looked like they were catching the condensation from air conditioning units.

Cindy Munford on August 10, 2012 at 1:57 PM

Yes government entities at all levels can become abusive and tyrannical – if the wrong people are elected (see current occupant of the WH).
However, the water laws out west were originally written by agreement between the early settlers (mostly ranchers and farmers) to ensure they all got their share of the limited water supply so they could all survive. If one guy blocks up a stream to keep and use the water for himself, the people downstream are destroyed.

dentarthurdent on August 10, 2012 at 1:56 PM

Which isn’t the case here.

Conservative4Ever on August 10, 2012 at 1:59 PM

I’d need more facts, here.

From the article:

The Oregon Water Resources Department, claims that Harrington has been violating the state’s water use law by diverting water from streams running into the Big Butte River.

Ah, that’s better. The charge must have been based on those allegations. A conviction means someone reviewed the evidence and decided the charges were supported beyond a reasonable doubt.

EconomicNeocon on August 10, 2012 at 12:16 PM

A conviction may mean nothing more than the fact that the accused decided it was easier to accept a guilty verdict rather than fight the charge. And he may have decided that he was through rolling over for the prosecution, and is now going to fight back.

Or, of course, he may actually be guilty and just stubborn. You’re dead right about needing more facts to really come to a conclusion. If he was actually building dams and preventing others from getting water, that would be an entirely different matter from just collecting rainwater from rooftops and other surfaces. The same facts could be written up as two entirely different stories by two different reporters.

On the surface, it looks like local government overreach. It may in fact be local government overreach. But it’s at least possible that the government is in the right on this one.

tom on August 10, 2012 at 2:00 PM

People from back east have a hard time understanding water rights. They have so much of it. They usually fight over where it goes or who is going to clean it up, not who actually owns it or uses it. They don’t understand that in large chunks of the west, real property is almost worthless without water. Most of the west is a desert.

Captain Kirock on August 10, 2012 at 1:44 PM

You may be surprised. Big cities need to regulate water even more severely than you’d think. This is an article in a long series called “The Nanny State Wants To Kill You”. It’s not intended to make sense. It’s intended to inflame.

I only go back east part way. Chicago. And the water from Lake Michigan is used for drinking as well as fire suppression, plant growth, sewage transportation and a bunch of other stuff. It’s managed and regulated. A lot.

Most folks don’t think about it, that’s all. All they know is that when they turn on a tap, it flows. That is, in fact, why we elect people to set up agencies that hire managers and write laws and impose fines and sentences. Kinda like they do in Oregon.

Leonard210 on August 10, 2012 at 2:01 PM

Nor does the conviction mean that any unbiased review took place.

Right. I suppose it could have been a guilty plea. In which case the guy has nobody to blame but himself.

There’s a lot more to the story.

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Home » News
Oregon Man Sentenced to 30 Days in Jail — for Collecting Rainwater on His Property
By Kendra Alleyne
July 26, 2012
Subscribe to Kendra Alleyne’s posts

Rainstorm

(AP photo)

(CNSNews.com) – A rural Oregon man was sentenced Wednesday to 30 days in jail and over $1,500 in fines because he had three reservoirs on his property to collect and use rainwater.

Gary Harrington of Eagle Point, Ore., says he plans to appeal his conviction in Jackson County (Ore.) Circuit Court on nine misdemeanor charges under a 1925 law for having what state water managers called “three illegal reservoirs” on his property – and for filling the reservoirs with rainwater and snow runoff.

“The government is bullying,” Harrington told CNSNews.com in an interview Thursday.

“They’ve just gotten to be big bullies and if you just lay over and die and give up, that just makes them bigger bullies. So, we as Americans, we need to stand on our constitutional rights, on our rights as citizens and hang tough. This is a good country, we’ll prevail,” he said.

The court has given Harrington two weeks to report to the Jackson County Jail to begin serving his sentence.

Harrington said the case first began in 2002, when state water managers told him there were complaints about the three “reservoirs” – ponds – on his more than 170 acres of land.

According to Oregon water laws, all water is publicly owned. Therefore, anyone who wants to store any type of water on their property must first obtain a permit from state water managers.

Harrington said he applied for three permits to legally house reservoirs for storm and snow water runoff on his property. One of the “reservoirs” had been on his property for 37 years, he said.

Though the state Water Resources Department initially approved his permits in 2003, the state – and a state court — ultimately reversed the decision.

“They issued me my permits. I had my permits in hand and they retracted them just arbitrarily, basically. They took them back and said ‘No, you can’t have them,’ so I’ve been fighting it ever since,” Harrington told CNSNews.com.

The case, he said, is centered on a 1925 law which states that the city of Medford holds exclusive rights to “all core sources of water” in the Big Butte Creek watershed and its tributaries.

“Way back in 1925 the city of Medford got a unique withdrawal that withdrew all — supposedly all — the water out of a single basin and supposedly for the benefit of the city of Medford,” Harrington told CNSNews.com.

Harrington told CNSNews.com, however, that the 1925 law doesn’t mention anything about colleting rainwater or snow melt — and he believes that he has been falsely accused.

“The withdrawal said the stream and its tributaries. It didn’t mention anything about rainwater and it didn’t mention anything about snow melt and it didn’t mention anything about diffused water, but yet now, they’re trying to expand that to include that rain water and they’re using me as the goat to do it,” Harrington

But Tom Paul, administrator of the Oregon Water Resources Department, claims that Harrington has been violating the state’s water use law by diverting water from streams running into the Big Butte River.

“The law that he is actually violating is not the 1925 provision, but it’s Oregon law that says all of the water in the state of Oregon is public water and if you want to use that water, either to divert it or to store it, you have to acquire a water right from the state of Oregon before doing that activity,” Paul told CNSNews.com.

Yet Paul admitted the 1925 law does apply because, he said, Harrington constructed dams to block a tributary to the Big Butte, which Medford uses for its water supply.

“There are dams across channels, water channels where the water would normally flow if it were not for the dam and so those dams are stopping the water from flowing in the channel and storing it- holding it so it cannot flow downstream,” Paul told CNSNews.com.

Harrington, however, argued in court that that he is not diverting water from Big Butte Creek, but the dams capturing the rainwater and snow runoff – or “diffused water” – are on his own property and that therefore the runoff does not fall under the jurisdiction of the state water managers, nor does it not violate the 1925 act.

In 2007, a Jackson County Circuit Court judge denied Harrington’s permits and found that he had illegally “withdrawn the water at issue from appropriation other than for the City of Medford.”

According to Paul, Harrington entered a guilty plea at the time, received three years probation and was ordered to open up the water gates.

“A very short period of time following the expiration of his probation, he once again closed the gates and re-filled the reservoirs,” Paul told CNSNews.com. “So, this has been going on for some time and I think frankly the court felt that Mr. Harrington was not getting the message and decided that they’d already given him probation once and required him to open the gates and he refilled his reservoirs and it was business as usual for him, so I think the court wanted — it felt it needed — to give a stiffer penalty to get Mr. Harrington’s attention.”

So he pled guilty previously for the exact same issue and got probation. He had been ordered as part of the prior case to open gates in dams he built on his property. He complied with the order. Then, when the probation ended, he closed them again.

I despise the nanny state, but this is not that situation. Water rights are incredibly important out west and it looks like the guy needed a jail sentence here.

EconomicNeocon on August 10, 2012 at 2:03 PM

“diffused water”

“According to Oregon water laws, all water is publicly owned. <-(this is BS) Therefore, anyone who wants to store any type of water on their property must first obtain a permit from state water managers.

Harrington said he applied for three permits to legally house reservoirs for storm and snow water runoff on his property. One of the “reservoirs” had been on his property for 37 years, he said.

Though the state Water Resources Department initially approved his permits in 2003, the state – and a state court — ultimately reversed the decision.

“They issued me my permits. I had my permits in hand and they retracted them just arbitrarily, basically. They took them back and said ‘No, you can’t have them,’ so I’ve been fighting it ever since,” Harrington told CNSNews.com.

Conservative4Ever on August 10, 2012 at 2:06 PM

I despise the nanny state, but this is not that situation. Water rights are incredibly important out west and it looks like the guy needed a jail sentence here.

EconomicNeocon on August 10, 2012 at 2:03 PM

Try again.

Supporting Documents

In light of the vast emotional controversy over the rain water rights belonging to the Citizen property owners, we want everyone to take the time to read this synopsis, view the evidence and determine for themselves what is right and wrong here. After all, we are governed by our consent.

If, after reading and listening to all that is on this site, anyone can show an incorrect fact or law that contradicts what we are saying here or in what is said as expert legal opinions given by licensed attorneys herein…then email us with the appropriate law, case or other information to present the relevant change suggested. This is too important to get wrong. We all need to understand what happened here so that we can grow as a country and learn how to make sure what just happened to Gary….never happens again… to any of us.

The Expose of what happened to Gary Harringtion
We are attempting to show you as much of the evidence as we can in Gary’s case, and specifically what the Jury was denied hearing or was unable to hear! It is blatant evidence which clearly proves beyond a Shadow of Doubt, in our opinion, that Gary is innocent, and that illegal actions were taken against him in his stand for his rights, and his Civil Rights were violated on multiple accounts and in multiple occasions.

1. The Statutes the State applied to Gary ….did not apply to him….and the State and Judge knew it, but refused to acknowledge it or let the Jury see it. (See the expert legal opinions, legal sites and definitions below)

2. Gary did not misuse the water, nor was he infringing on anyone else’s water rights. His water was only used publicly to suppress Fires multiple times by multiple fire districts, and is clearly wanted to be kept as a resource for such by them. (see the letters from the Fire district personnel)

3. It was the OWRD who broke the law, and not Gary.

4. There was no injured party in the case, nor could there be by definition…except for Gary, his family, and those who may be harmed because of the lack of water in Gary’s ponds available to fight fires with. (Referenced in the expert legal opinion)

5. Gary tried everything possible to get a peaceful resolution to the issue that any prudent person would do. (see his permit apps, legislative attempts and work with Senator Doug Whitsett)

6. Gary was denied his Due Process rights on multiple occasions. (see the numerous events listed below)

7. Gary was not given Equal Protection Under the Law. He was Selectively targeted and Selectively and prejudicially abused (See the expert legal opinion)

8. He was falsely and wrongfully accused of a crime. (Listed as his charges)

9. He was in the middle of a Civil action while an unknown Criminal charge on the same issue was being made and acted on against him. (Evidence used in his ongoing defense currently)

10. Gary was falsely and selectively targeted and prosecuted. (See the expert legal opinion)

11. He was not given a fair trial. (anyone can see this…just read what is below)

12. He was tried on a Null and Void charging instrument (evidence on record and shown in the transcript of pre trial on the day of trial)

13. He was denied Counsel of his choosing, and thereby denied help during his trial. (Again, on record and evidenced in the transcript)

14. He was rushed into judgment and disallowed to tell the whole truth about his case. (read the transcript of pre trial and trial…it is blatantly obvious)

15. He did not have an impartial Judge. (again blatantly obvious by the actions of the Judge as shown in the transcripts and repeated favor towards the Prosecution on motions)

16. The jury was denied hearing or unable to hear Gary’s full testimony and the testimony of others in his favor. (again, read the trial transcripts)

17. Gary’s property values and that of hundreds, if not thousands, of other land owners in Oregon have been devalued unjustly, and the land owners with ponds like Gary’s are in for legal battles that are fraudulent as well. (obvious, but we will discuss it further at the end)

18. Wildlife and other natural habitat, such as wetlands, are harmed and put at further risk by this governmental abuse and other related unconstitutional actions. (again, obvious, and will be discussed further below)

19. Water tables and the natural course of water flood prevention are compromised. (again, obvious, and will be discussed further below)

Be an Informed Juror and determine for yourself:

First, we are going to show you blatant evidence, with correctly interpreted case law, expert legal opinion….and pure common sense…that:

1. Gary was exempt from the regulations and therefore could not have committed any crime suggested.

2. The Oregon Water Resources Department (OWRD) not only broke the law and more than one of its entrusted fiduciary responsibilities to the Citizens of Oregon, it Selectively, Fraudulently and Prejudicially instigated and participated in a sham prosecution of Gary. We believe it did so to establish further control of the Citizens water, and for a deeper purpose.

A little history to begin with:

Gary Harrington’s ponds are located within the Big Butte Creek basin in Southern Oregon. However, water impounded within the ponds is not diverted from a defined watercourse, tributary or spring that feeds Big Butte Creek. Rather, the ponds are filled by diffuse surface water that moves across the Harrington land as a result of precipitation and snow melt. Mr. Harrington does not have a permit to store water in any of his ponds, and by definition of the water source filling those ponds….does not need a permit. He could not even apply for one to get the requested “water certificate” he was told he needed to have by the Agricultural Department of Soil and Reclamation to help to pay for the construction of his first pond.

In one of the documents listed on this site, you will see this:

In 1973, Gary and his brother Michael went to the Watermaster in office at the time, Mr. Hedrick, to see if they could get a “water certificate”. Mr. Hedrick correctly explained to them that Garydid not need to get a permit to build his ponds. He explained to them that Gary’s pond and many of the other ponds in the area called the Big Butte Watershed were filled each winter with what they called “winter run off water” derived from rain and snow melt, and that those sources of water were not under any permit requirement as they were not subject to the law of appropriation. Mr. Hedrick further explained that because no permit was needed, no “water certificate”…which is the second part of getting a permit…could be issued. Mr. Hedrick accurately described the correct and original OWRD determination of the Statutes. Further, the fact that other ponds were built and filled with winter run off water from rain and snow…and what was also called “diffused water” in the Big Butte Watershed at that time, and that they too, were not required to have any permits, nor could their owners apply for a “water certificate” clearly demonstrated the understanding and position taken on this matter by the OWRD.

The Jury was denied hearing this evidence.

More History and Background:

City of Medford Water Supply.

Springs located at the head of Big Butte Creek serve as the major water source for the City of Medford. In 1925, the Oregon Legislature closed the Big Butte Creek water basin to future appropriations of water.

Under the 1925 Act, the City of Medford “is granted the exclusive right to use for municipal purposes all the waters of Big Butte Creek, a tributary of Rogue River situated in JacksonCounty, and of the springs at the head which form the creek, and of its tributaries. The City of Medford, any of its officers, and others on its behalf may appropriate all the waters….”3

In 1925, the City of Medford submitted application S-10120 to the State Water Board shortly after enactment of the withdrawal statute. Application S-10120 predictably sought to appropriate “[a]ll of the waters of said Big Butte Creek, its said tributaries and the said springs.” On September 18, 1925, the State Engineer issued Permit 6884 granting the City of Medford “the exclusive right to the use of the waters of Big Butte Creek and of the springs at the head of and which form said stream, and of the tributaries of said stream, for municipal purposes, as provided in Chapter 166, Laws of Oregon for 1925.” Permit 6884 carries a priority date of “May 28, 1925, the date upon which the law providing for this appropriation became effective.”

Note that even back then, they were careful to change the wording on the application to include all the waters of said streams….this new wording was more expansive than the first definition. If the wording was not restrictive, then why was there the need to expand it?

Now let’s get into some fundamental basics:

Did the Statute apply to Gary in the first place?

Statutes must be strictly construed. This is a fundamental premise of law.

Under rules of interpretation, “When the Statute states something, it’s to the exclusion of everything else. If the Statute specifically states something, it’s to the exclusion of anything else.”

It is vital that we understand this, as this is what is called a “limiting factor”. We, as Citizens, did not give to the State, unlimited powers. Conversely, we only gave limited powers to the State, and only in a fiduciary capacity, with the charge to use those powers responsibly for the protection and general welfare of the Public. What was not expressly given to the State, remained with the Citizen.

So, here is what the pertinent part of the base Statute applied to Gary says:

ORS 538.430 Medford and Eagle Point Irrigation District; right to waters of Big Butte Creek; generation, sale and distribution of electric energy by irrigation district. (1) Subject to water rights existing on May 29, 1925, the City of Medford, in Jackson County, is granted the exclusive right to use for municipal purposes all the waters of Big Butte Creek, a tributary of Rogue River situated in Jackson County, and of the springs at the head which form the creek, and of its tributaries.

Rules of Interpretation or Construction for Statutes and/or Regulations.

The rules of statutory interpretation are governed in accordance with the textual canon “expressio unius est exclusio alterius”; or the express mention of one thing excludes all others.

“A local rule may not be inconsistent with the Constitution, a statute of the United States, or with a national rule governing the conduct of litigation in the United States courts.” United States v. Claros, 17 F.3d 1041, 1044-45.”

There is no case law on point in Gary’s case, so..…

The courts generally interpret statutes in the context of the common law. Royal Air Properties, Inc. v. Smith, 312 F.2d 210.

Gary did nothing to abridge some ones rights….There was no injured party in this case. He had fish in his ponds and fishing poles, boats and docks on his ponds…and he had every right to.

So long that (citizens) don’t act dishonestly or deceitfully and so long as they don’t violate some specific law citizens living in our society are still free to conduct their affairs any which way they please. U.S. v. Caldwell, 989 F.2d 1056.”

So what is a Tributary? And is it different than “diffuse surface water” or what is commonly called “run off” water?

Tributary: n. pl. trib·u·tar·ies

A stream that flows into a larger stream or other body of water.

According to expert legal opinion

The common law defines “diffuse surface water” as:

[water] diffuse over the surface of the ground, derived from falling rains or melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to, and does flow with other waters.

There is at least one legal treatise in Oregon that concludes that such diffused surface water run-off is not part of a defined “watercourse”, and thus not subject to appropriation requirements at all. Survey of Oregon’s Water Laws, C. Clark, 1973-83 Supplement, 117-118. On page 117, Professor Clark explains:

“Diffused surface water is water derived from falling rain and melting snows which is diffused over the surface of the earth in no defined channel. Once such waters reach some well-defined channel they cease to be surface water and become part of a watercourse. At this point they become public waters subject to the law of appropriation.”

Notice the clear distinction between when diffused (also called diffuse) surface water and water that is part of a “water course.” Quite clearly, in Gary’s case, under this analysis, no water right would be required for any ponds that were constructed outside of the channel of a defined watercourse, and that did not otherwise require diversion of water from a defined watercourse. Therefore Gary was never under the statutory requirement to get the permit, nor could any penalty related to that Statute therefore be imposed on him…… as none of the water in his ponds came from tributaries or “well defined channels, ” watercourses or any other term used in the Statute. No water right was infringed upon, as all of the water ending up in any pond on Gary’s property is not subject to the law of appropriation.

Also, According to the water law expert legal opinion given by one of the most regarded water law attorneys in the 4 Northwest States, Laura A. Schroeder, Gary was not under OWRD jurisdiction or this Statute at all:

“It is my professional opinion that Harrington’s ponds are outside the Department’s jurisdiction. Under Oregon common law, Harrington may collect and hold diffuse surface water run-off in his ponds without a storage permit from the Department. At common law, the collection of diffuse surface water upon one’s land does not constitute an “appropriation” because the water is not part of a defined water course.”

We will reference parts of this legal opinion many times in this overview, and the complete report will be provided below. This is part of the evidence that Gary was prohibited from using in his defense because the Judge, blatantly displayed his Partiality against Gary and sided with the Prosecution saying this expert legal opinion might prejudice the Jury against the State…… So who is the State supposed to be protecting in its fiduciary role? This is pure bias and censorship by the Judge in our opinion.

Who was the Injured Party?

It is imperative to understand that Gary never imposed on or took any other person’s rights….the water rights belonged to him. He never injured anyone…there was no injured party making a claim, and as you will see…

In a worst case scenario….it would have had to be the City of Medford that brought a claim, as the rights in question could only be contested by them.

According to the Expert Legal Opinion:

“The City of Medford, to my knowledge, has never deemed the Harrington ponds to be injurious to its water rights.”

Now let’s look at a key U.S. Supreme Court Case:

“He owes nothing to the public so long as he does not trespass upon their rights.” Hale v. Henkel, 201 U.S. 43 at 47 (1905).

We know that Hale vs. Henkel was decided in 1905 in the U.S. Supreme Court. Since it was the Supreme Court, the case is binding on all courts of the land, until another Supreme Court case says it isn’t. Since 1905, the Supreme Court has cited Hale vs. Henkel a total of 144 times. A fact more astounding is that since 1905, Hale vs. Henkel has been cited by all of the federal and state appellate court systems a total of at least 1600 times. None of the various issues of this case has ever been overruled. One of those other issues is this:

“His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution”

Well, “Due process of law” involves procedures and safeguards such as trial by jury. “Trial by jury” means, inter alia, the jury judges both law and fact.

How does that compare with the other Supreme Court cases? Although a complete study has not been made, initial observations indicate that no other case surpasses Hale vs. Henkel in the number of times it has been cited.

So lets go back to the Expert Legal Opinion and see more of what the Jury was prohibited from seeing or hearing:

Continuing on….

ORS chapter 537 governs the “Appropriation of Water Generally,” and requires a permit “to make [an] appropriation” of water. ORS 537.130(1). No statute defines the term “appropriate.” Hence, the court should look to the prior appropriation doctrine, which preceded the Oregon statute that forms the basis of Oregon’s Water Code to determine the meaning of “appropriate.” See Coley v. Morrow, 183 Or App 426, 432, 52 P3d 1090, 1093 (2002) (stating that the statutory language must be considered in light of the statutory framework into which it was enacted, as well as the preexisting common law). Under the prior appropriation doctrine, a water user acquired a water right by making an appropriation of water. See In re Water Rights in Silvies River, 115 Or 27, 237 P2d 322 (1925). In Silvies River, the Oregon Supreme Court stated that:

As a general rule, to constitute a valid appropriation of water, three elements must exist: (1) an intent to apply it to a beneficial use, existing at the time or contemplated in the future; (2) a diversion from the natural channel by means of a ditch, canal, or other structure; and (3) an application of it within a reasonable time to some useful industry.

Id,, 115 Or at 64-65, 237 P. at 336. Thus, a key component of a valid appropriation is a diversion from a natural channel by means of an artificial device or structure.

The common law defines diffuse surface water as:

[water] diffuse over the surface of the ground, derived from falling rains or melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to, and does flow with other waters.

Wellman v. Kelley, 197 Or 553, 560, 252 P.2d 816, 820 (1953). In addition, the late Dean Chapin Clark in Survey of Oregon’s Water Laws, 1973-83 Supplement, 117-18, defined diffuse surface water as:

[W]ater derived from falling rain and melting snows that is diffuse over the surface of the earth in no defined channel. Once such waters reach some well-defined channel, they cease to be surface water and become part of the water course. At this point, they become public waters subject to the law of appropriation. (App-3).

According to this common law definition, then, diffuse surface waters are not subject to the law of appropriation until they become part of a defined water course. Under common law,general rule is that diffuse waters resulting directly from rain and melting snow may be collected, captured, impounded, and put to reasonable beneficial use by the owner of the land on which they occur, so long as the water remains on such owner’s land. Doney v. Beatty, 220 P2d 77 (Mont. 1950); Franklin Cub River Pumping Co. v. W.D. Le Fevre, 311, P2d 763 (Idaho 1957) (holding that a party owns and is entitled to “recapture the natural precipitation falling on his own land so long as he applied it to beneficial use”); see also Eastern Oregon Live Stock Co. v. Keller, 108 Or 256, 216 P. 556 (1923) (upholding landowner diversions of diffuse surface waters over the claims of downstream appropriators because the waters were held to be outside the state appropriation system).

Diffuse surface water – water that is derived from falling rains or melting snows and diffuse over the surface of the earth in no defined channel – is not subject to Oregon’s laws of appropriation. This conclusion conforms to the common law recognition that diffuse surface water is not subject to the law of prior appropriation until it reaches a defined water channel.Thus, the collection of diffuse surface waters does not trigger the Department’s permitting requirements because no “appropriation” occurs.

The overall statutory scheme of Oregon’s Water Code supports that a permit is required only for appropriations of water from delineated or defined water sources rather than diffuse surface waters. For example, ORS 537.140 lists the information that must be included in any application for a permit to appropriate water. ORS 537.140(l)(a)(B) requires that each application must list “[t]he source of water supply including the name and mailing address of any owner of the land upon which the source of the water supply is located[.]” Similarly, the statutes that govern reservoir permits require an indication of the source of water used to fill the reservoir. See ORS 537.400 to 537.409. These statutes contemplate a requirement that a pond or reservoir be filled by a source water body, and that if a pond or reservoir is filled by diffuse surface water, permitting requirements do not apply.

In my professional opinion, diffuse surface waters are not subject to Oregon’s appropriation law. Oregon statutes do not define the term “appropriation;” therefore, the courts must look to the prior appropriation doctrine to determine the definition. Under common law and the prior appropriation doctrine, a valid appropriation of water requires “a diversion from the natural channel by means of a ditch, canal, or other structure.” In re Water Rights in Silvies River, 115 Or 27, 237 P2d 322 (1925). Diffuse surface water, however, is not diverted from a defined natural channel and thus cannot constitute a valid appropriation. Diffuse surface water may be collected, impounded, and put to reasonable beneficial use by the owner of the land on which it occurs, so long as the water remains on the owner’s land. It follows then that ponds filled with diffuse surface water are not subject to the statutory requirements for appropriation. These common law concepts are not altered by Oregon’s statutory scheme governing water appropriation.

B. The City of Medford and Medford Water Commission have primary jurisdiction over the unappropriated waters of the Big Butte Creek basin.

Oregon law declares all water to be public (9) and subject to appropriation for beneficial use, as provided in the Water Rights Act.” (10) Certain waters are recognized as “private” and not subject to public appropriation. (11) Similarly, various water sources are deemed to be withdrawn from appropriation by the public. (12) The Legislature has plenary power to control the water of the State. (13)

The Big Butte Creek basin is an exception to the general rule that “all waters within Oregon may be appropriated for beneficial use, as provided in the Water Rights Act.” (14) Under ORS 538.430, this basin is legislatively withdrawn from appropriation. (15) However, the Big Butte Creek withdrawal is distinguishable from other legislative withdrawals. The statute simultaneously grantsMedford an exclusive right to use all previously unappropriated water in the basin for municipal purposes. Next, ORS 538.430 lists permissive alternatives by which Medford may effectuate the grant:

1) The City “may appropriate all the waters for these purposes;”

2) The City “may divert such waters from their watershed and convey them to the city and elsewhere for use by it for municipal purposes, either within or without the city limits”;

3) An application “may be made for the benefit of the city, either by it in its own name, or by any of its officers or by any other person on its behalf.”

Finally, the statute prohibits OWRD from issuing any permits other than municipal and for the benefit of Medford.

The statute operates as a legislative conferral of a water right to the City of Medford. (16) Like other water rights, this right to use water constitutes a vested property interest. (17) In effect, and through ORS 538.430 the Legislature removed the remaining unappropriated waters of Big Butte Creek from the public domain. This reasoning supports why the statute, together with the water right conferred, is omitted from the scope of the Water Rights Act. (18) The resulting property interest was exclusively granted to the City of Medford.

So, who had the rights to the unappropriated water in Gary’s area, the Big Butte Watershed?……. The City of Medford or the OWRD? Lets continue:

Although not required, in 1925 the City of Medford did submit an application to appropriate “all of the waters of said Big Butte Creek, its said tributaries and the said springs” which hadnot yet been appropriated to other uses as of the effective date of the law (Permit No . 6884, issued to the City of Medford September 18, 1925.) In doing so, the City of Medford erased any doubt with respect to its entitlement to all the unappropriated water in the basin.

Based upon the foregoing, it is my opinion that ORS 538.430 divests the Water Resources Department of primary jurisdiction over the waters of Big Butte Creek basin, placing it in the hands of the City of Medford. The City of Medford, through the Medford Water Commission, is the sole entity with the right to divert water from the Big Butte Creek basin for new uses. It is the City that is empowered to seek curtailment of adverse water uses in its basin which threaten the real property interest granted to the City by the Legislature. While ORS 538.430 prohibits OWRD from issuing permits adverse to the City’s interest, the statute does not prescribe OWRD with the affirmative duty of administering the Water Rights Act on behalf of the Medford Water Commission.As indicated under ORS 537.010, the scope of the Water Rights Act does not reach the withdrawn waters of Big Butte Creek basin.

In summary, to the extent Harrington’s ponds may constitute an “appropriation,” the use is adverse to Medford’s use of water, not the public generally. ORS 538.430 withdraws the Big Butte Creek basin from appropriation while simultaneously vesting the City of Medford with a usufructuary vested property right to utilize all the withdrawn water for municipal purposes. The statute and grant were enacted in 1925 – a date later in time than the Water Rights Act. The grant was conferred by the Legislative Assembly which has plenary control over the unappropriated water of the State. The statute does not require Medford to seek a permit in order to divert water from the basin. The statute prohibits OWRD from issuing any permits other than for municipal purposes of Medford.Finally, the statute and grant to Medford are not defined as part of the Water Rights Act. In my opinion, it does not follow that the Water Rights Act can serve as the basis for criminal proceedings against Harrington. To the extent Harrington’s ponds are injurious to the City of Medford, it is the City that must act.

So, was Gary singled out and given Selective Prosecution? And, how could the OWRD issue exemption, sign off on permits, and allow uses of pond and water for other uses apart from the City of Medford, and apart from the uses for municipal purposes….Isn’t that illegal?! Let’s continue:

C. Regulation of Harrington is contrary to the Department’s standard practice toward similarly situated small ponds.

In my opinion, the Department’s regulation of Harrington cannot be reconciled with its approach to other ponds in the Big Butte Creek basin and elsewhere in the State of Oregon. Over the last twenty years of representing water users, my experience with small, unregistered ponds is as follows:

• Within a basin withdrawn from appropriation (such as Big Butte Creek), OWRD’s unwritten policy is to not regulate and not commence enforcement proceedings against landowners with undocumented small ponds.

• Conversely, OWRD will not grant new storage permits for such ponds.

It is my belief that OWRD’s “no-regulation” policy stems from the vast number of unregistered ponds in existence and various legal and factual uncertainties that surround small ponds of this nature. Among others, these include: 1) whether the retention of water in a pond even constitutes a storage “appropriation” where no water is diverted from a discernible source; 2) whether certain ponds are natural or man-made; 3) the legal status of ponds constructed before Oregon’s 1909 water code; and 4) uncertainly as to the legal status of a pond filled with seepage or spring water that is exempt from permitting under ORS 537.800.

So here are 2 very important points: 1. Did the OWRD issue permits to others against the law? And, 2. Did they Discriminatorily and Selectively prosecute Gary? Pay close attention….

While defending against prior criminal and administrative proceedings, Harrington conducted considerable research into the proliferation of unregulated ponds within the Big Butte Creek Basin. (19)Research by Harrington revealed that the Department recognizes a substantial number of ponds constructed after 1925 as legitimate. The Department does not regulate ponds registered with OWRD under HB 2153 (1993) and HB 2376 (1995). (20) If Harrington’s ponds constitute an impermissible appropriation of water in violation of ORS 538.430, it is my opinion that the same must hold true for other ponds constructed following enactment of the 1925 Act. Under the Department’s rationale for denying Harrington’s permit applications, water should likewise not be available for other ponds constructed after the 1925 Act. Despite this, OWRD has registered and validated multiple post-1925 ponds while simultaneously declaring it withdrawn from appropriation for the benefit of Medford.

In addition to ponds registered under HB 2153 and HB 2376, numerous unregistered ponds continue to exist in the Big Butte Creek basin free of any regulation or interference by the Department. Under HB 2376, (ORS 537.405), the status of these ponds is unclear. ORS 537.405(1) expressly declares small ponds such as Harrington’s to be exempt from regulation. It states:

Reservoirs in existence on or before January 1, 1995, that store less than 9.2 acre-feet of water or with a dam or impoundment structure less than 10 feet in height, are found to be a beneficial use of the water resources of this state. Except as provided in subsection (4) of this section, such reservoirs are exempt from regulation by the Water Resources Commission and the Water Resources Department and are not required to obtain a permit or certificate under ORS 537.140 to 537.252.

Section (2) of the statute requires pond owners to submit notification of the pond prior to January 31, 1997. (21) However, qualifying for the pond exemption is not expressly conditioned upon filing the notice required by subsection (2). The Department has interpreted otherwise. Yet, the Department could just as easily have interpreted Subsection (2) to only subject the water user to a potential penalty under ORS 537.990 or ORS 537.992 in the event the January 31, 1997 deadline was not met. This latter interpretation would give effect to the entire statute by not overturning the Legislature’s declaration in Subsection (1) that small ponds are exempt.

Other than Harrington, I am not aware of the Department pursuing criminal charges against other similarly situated pond owners. In my experience, for the Department to seek criminal sanctions against any water user is rare, especially when no discernible “injury” is claimed by another water user and regulatory jurisdiction is questionable. Based upon my experience representing water users in Oregon, the Department’s pursuit of charges against Harrington is out of the ordinary.

Conclusion

It is my opinion that the Department has improperly concluded that precipitation and snow melt on Harrington’s land constitutes water that is subject to appropriation, thus requiring a permit for its impoundment. This interpretation is in conflict with the common law prior appropriation doctrine, yet neither the Oregon Water Code nor Department rules define “diffused surface water” or “appropriation” in a manner that expressly refutes the common law approach to diffused surface water. The Department’s interpretation nullifies a water use historically viewed as part and parcel of the land. In my experience, I have never witnessed the Department target an individual in the manner it has with Harrington. The lack of clear law with respect to ponds like Harrington’s in combination with the Department’s inconsistent, if not virtually nonexistent, regulation of such ponds largely renders my firm incapable of advising a landowner such as Harrington as to whether his actions are illegal.

Very truly yours,

SCHROEDER LAW OFFICES, P.C.

SWalker on August 10, 2012 at 2:07 PM

They could wear a helmet!

Cindy Munford on August 10, 2012 at 1:53 PM

I was thinking “be strapped into a special seat,” but OK. As long as government is telling them what to do, they won’t get hurt.

J.E. Dyer on August 10, 2012 at 2:09 PM

How far away can we be from being charged a water use fee when it rains?

BobMbx on August 10, 2012 at 11:50 AM

Already happened in Colorado Springs – they tried a few years to hit us with a “stormwater drainage fee” that was based on the square footage of your property. Determined in court to be an illegal tax, so it was removed.

dentarthurdent on August 10, 2012 at 12:23 PM

My parents farm in western Wisconsin is assessed an annual stormwater drainage fee, based off of acerage. It was originally going to be $3/acre, but the gracious and merciful local government decided to only assess it at $1/acre.

The government will follow you to hell and back in order to squeeze a few extra bucks from your wallet.

BadgerHawk on August 10, 2012 at 2:19 PM

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