Bridgeview vs. DSL: Battle a ‘matter of principle’
From our weekly issue dated March 11, 2009
Bob Kerivan on his property along Sucker Creek. (Photo by Scott Jorgensen, I.V. News)
The decade-long court battle between Bridgeview Vineyards Winery owner Bob Kerivan and the State of Oregon continues, and was recently played out in a Josephine County courtroom.
On Feb. 18, a hearing was held before Circuit Court Judge Pat Wolke at the courthouse in Grants Pass. Bridgeview, of Cave Junction, was represented by Portland-based attorney Clarence Greenwood; and Chris Cauble of the Grants Pass firm Cauble, Dole, Sorenson & Ransom. The state was represented by John Geil and Matt Donohue from the Oregon Dept. of Justice (DOJ) Commercial Condemnation and Environmental Litigation Division.
DOJ Spokesman Tony Green said that during the hearing, the state asked Wolke to dismiss Kerivan’s civil rights claims against it. Green said that the state also requested that the judge not accept some of what has been submitted for the trial, tentatively set for September.
As of press time, a decision had yet to be rendered in the matter. But throughout the duration of the various hearings and trials during the years, Kerivan has grown used to waiting for decisions.
It began in 1995, Kerivan said, when a neighbor across the river from the vineyard put a 200-foot-long dike in place to protect their property. That changed during the New Year’s Eve flood of 1996, at which point, Kerivan said, “All hell broke loose.
“The river does what it wants to do, and it washed out that dyke,” Kerivan noted. “When it did, it changed the course of the river. It plugged the old channel and made a new channel through my yard.”
Kerivan said that an estimated 100 truckloads of gravel “all washed out and deposited down on my side.”
In response, Kerivan waited until August 1998 to rent equipment to move the gravel to the more than 3 miles of roads on the Bridgeview property. That included a 60-foot flatbed railroad car intended for use as a bridge in the process. The idea, Kerivan said, was to push the gravel up against each end of the bridge for an approach and to take the gravel across it and to the shaker.
“That was the plan, but it never took place,” he said.
After some two hours and four loads, Kerivan said that the neighbor across the street stopped the equipment driver until state police could arrive. Troopers from Oregon State Police showed up and arrested the equipment driver.
Kerivan was out of town at a meeting when it happened. But when he came back, he also was arrested.
“Normally, they would just issue a citation under civil law,” Kerivan said. “We wanted to settle. I was willing to pay a fine and all that, but they wouldn’t go for that. They wanted me in jail.”
Although it later was determined that Kerivan didn’t need a permit, his employee initially was convicted on the criminal matter. That subsequently was reversed, but Kerivan said that the state began retaliating against him almost immediately. The state’s position, he said, was reported on by a regional daily newspaper.
“After I beat them, they started saying that Bridgeview Winery tricked the D.A. into a case they couldn’t appeal. That’s what they put in the newspaper; that we tricked them,” he said. “They put this in the paper for about a month and it affected our business. We lost about $2 million in business.”
While waiting to settle the criminal charges, Bridgeview petitioned the Oregon Division of State Lands (DSL) in January 1999 for emergency authorization to add rip-rap to Sucker Creek, which is designated as salmonid habitat. That permit was denied.
Kerivan said that the original reason for the denial was the fact that he was under indictment at the time.
“Now they’re saying they wouldn’t give it to me because it wasn’t an emergency,” he said. “That’s where the civil rights part of it comes in.”
In 2002, Kerivan filed suit against the state, claiming $3.6 million in damages.
An injunction also was granted so that the state could not prevent Kerivan from repairing his property.
“I fixed the deal the next day,” he said. “I fixed it, had all the stuff there ready to fix it, rip-rap that I bought from the BLM. I fixed it with one Cat and one backhoe and 11 manhours. I figured I fixed it for $660.”
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After the 1999 permit denial, Bridgeview sought relief from the Circuit Court, which later agreed and granted the request for partial summary judgment. DSL appealed, and Bridgeview maintained that adding the rip-rap should be considered erosion control associated with its agricultural activities.
However, a higher court ruled on March 17, 2007 that even with agricultural activities, a permit is required to fill or remove 50 cubic yards of material in a salmonid stream.
That decision runs contrary to Cauble’s interpretation of the situation.
“The fact of the matter is, had Bob had to go through the emergency-permitting process, he would have already lost his property,” Cauble said. “That’s the reality—it would have already been gone. The reality is, how do you go through and ask for an emergency permit when your property is basically going down the river? It doesn’t make any sense.”
Cauble, chairman of the administrative law section of the Oregon State Bar, characterized this as an “interesting case.
“The fact of the matter is, there are still unanswered questions in court here,” he said. “It’s a very, very critical legal issue as far as administrative law is concerned.”
Green said that he agrees about the overall importance of the case.
“If there are any broader implications, they have to do with the ability of the State Land Board to enforce the law,” Green said.
Kerivan, who estimates that he’s spent around $725,000 in attorney’s fees on this issue, said that his lawsuit against the state has less to do with money and more to do with principle.
“It’s not that I’m money hungry,” Kerivan said. “I just don’t think the state should do that. I don’t think the state should be our enemy.”
Green said that the state eagerly is awaiting Wolke’s decision.
“We wouldn’t be arguing this case if we didn’t think we were right,” he said. “But I don’t think the other party would be arguing this case if they didn’t think they were right, either.”
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