State behavior takes on ‘Blob’-like qualities

By Dennis Linthicum

Today’s government enterprise often reminds me of the Blob, from the 1958 Steve McQueen movie.

In the movie, an eerie, sticky, tar-like alien blob pursues its own ends. It slowly oozes through towns and communities absorbing everything while growing larger with every tasty morsel.

Oregon’s government appears to be following the same path. It appears to be always growing, crushing and devouring rather than building, encouraging and supporting a free-market economy and the independence of the citizenry.

The unbridled administrative state and its relentless bureaucracy are slowly overwhelming the public. It is a somewhat self-regulating behemoth that grows in either lush or lean conditions and, unfortunately for Oregonians, the super-majority rather likes spritzing this blob with a legislative version of Miracle-Gro.

This can be seen with the sheer number and volume of rules, regulations, and laws on the books.

It can also be recognized in the internal structure and layout of existing departments, agencies and commissions where administrative solutions are defined and adjudicated within the same body. Positions of concentrated power are also starting to bubble forth in broad areas, like the proposals for state czars in energy, education, equity and emissions.

When the state gets caught in a bind or has actually done harm, these self-regulating agencies can simply morph and change the rules. They can do this because the rules allow them to, and of course, they are the experts.

Recently, the Oregon Court of Appeals forewent resolving a dispute over the impact of catastrophic rules that hampered agricultural businesses and water right-holders within the Klamath Basin. Irrigators in the Klamath Basin brought a lawsuit against Oregon Water Resources Department using airtight arguments, powerful testimony, reams of data and an array of expert hydrologic and geologic witnesses.

The lawsuit originated because OWRD asserted that all agricultural wells within the Klamath Basin watershed were hydrologically connected with surface water flows. This assertion was based on the misapplication of an inappropriate model rather than real-world seismological, geological or hydrological proof. Using this unproven claim, OWRD could badger agricultural well owners within one mile of a surface water flow by alleging impairment of flows that might harm senior water right holders.

This assertion created nothing but trouble for OWRD. The department got embroiled in multiple lawsuits, spent all of its legal funds and faced opposition arguments that were unbeatable because of the agency’s allegedly errant use of a ground water flow model. Faced with this possible defeat, OWRD needed a shape-shifting strategy and some rule changes.

Therefore, regulations were adopted earlier this year, which only last for two years and will expire in March 2021. Under this rule wells farther than 500 feet from surface waters in the Upper Klamath Basin would not be subject to regulation. This new 500-foot rule, like the prior 5,280-foot (one mile) rule, also appears arbitrary and seems to lack the needed science, seismological, geological or hydrological proof.

The recent rule modification reduced the number of impacted wells in the region from 140 down to seven, but will only last for two years. What comes next? For what time period? Will the next set of regulatory rules be set at a one-mile, five-mile or 10-mile mark?

In the meantime, the new rule was a complete success because it caused the appellate court to dismiss the lawsuit. The Capital Press newspaper in Salem reported the case was considered moot and unworthy of review due to the new rules governing surface water interference.

Wow!

A new, temporary rule can clear the administrative state of possible wrongdoing and make a legal conundrum disappear, even though plaintiffs were originally harmed by an agency’s actions.

The lawsuit filed by the irrigators in the Upper Klamath Basin, whose wells were shut down in 2015 and 2016 by the OWRD, should have been allowed their day in court. Their data provided sound testimony that their groundwater pumping did not reduce flows in the Sprague River and did not detrimentally impact the senior water right holders.

Sarah Liljefelt, attorney for the plaintiffs, said the dismissal is disappointing because the agency’s repeated rule changes have effectively denied the irrigators a ruling on the merits of their case.

It is disappointing, indeed, but this is the nature of the Blob. It continually morphs and changes, enhancing the bureaucracy while providing little, if any, benefit to the citizen. It grows incessantly and its weight becomes burdensome and sometimes even nefarious.

Our real problem is that we, as taxpayers, fund the whole game. We fund the bureaucracy, the legal teams, the rule-makers and the courts. We are on the hook for taxes, licensing fees and permits, and we will soon owe the Corporate Activities Tax along with numerous other new privilege taxes that the super-majority is conjuring up.

It is time to remove the dead-hand of government power from the forces that protect the well-heeled elites and their cronies.

Remember, if we don’t stand for rural-Oregon values and common sense, no one will!

– State Sen. Dennis Linthicum represents Senate District 28, in the Klamath Falls area.

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