1 

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3 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

4 Gary Allen Harrington, sui juris ) 

Plaintiff, ) 

5 ) 

v. ) 

6 ) 

STATE OF OREGON, et al., a political sub-) 

7 division ofthe United States of America, ) 

bound by the Constitution of the United ) 

8 States of America, 1789-1791, ) 

) 

9 v. ) 

) 

10 The United States of America, ) 

Attorney General, Loretta Lynch ) 

11 Department of the Interior, Sally Jewell, ) 

Secretary; Neil Kornze, Bureau of Land ) 

12 Management, ) 

case No. \! \ b-Cv-OO~DO -cc 

Complaint for Damages, Trespass, 

Destruction of Private Property, 

Impairing the Obligations of a Contract, 

Breach of Fiduciary Duty, Unlawful Arrest, 

Unlawful Imprisonment, Coercion 

Article III Court Demanded 

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Jurisdiction 

The United States District Court has jurisdiction under Article 1, Section 10, Clause 1, "No 

State shall pass any Bill of Attainder, ex post facto law, or Law impairing the Obligations of 

Contracts", and 28 U.S.C. §§ 1331 and Article VI, Section 3, breach of fiduciary duty violation of 

oath of office by public officers and I or agents. 

Plaintiff: 

Gary Allen Harrington 

1876 Crowfoot Road 

Eag.!~ Point, Oregon 97524 

..:; ""/1 ~~{;,-'7~CJ l> 

Defendants: 

UNITED STATES OF AMERICA 

26 Attorney General, Loretta Lynch 

U.S. Department of Justice 

27 950 Pennsylvania Avenue, NW 

Washington, DC 20530-0001 

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Complaint for Money Damages 

Parties 

page 1 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 1 of 35
1 United States Department of Interior 

Sally Jewell, Secretary 

2 1849 C Street, N.W. 

Washington DC 20240 

3 

Neil Kornze 

4 BLM Washington Office 

1849 C Street NW, Rm. 5665 

5 Washington DC 20240 

6 STATE OF OREGON 

Governor Kate Brown 

7 160 State Capitol · 

900 Court Street 

8 Salem, Oregon 97301-404 7 

9 STATE OF OREGON 

Ellen F. Rosenblum 

10 Attorney General 

1162 Court St NE 

11 Salem, OR 97301-4096 

12 Patrick A. Flanagan 

Sr. Assistant Attorney General 

13 1515 SW 51

h Ave., Suite 410 

Portland, Oregon 97201 

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Judge Tim Gerking 

15 Circuit Court Judge 

Jackson County Circuit Court 

16 1 00 South Oakdale 

Medford, Oregon 97 501-3127 

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Judge Lorenzo Mejia 

Circuit Court Judge 

Jackson County Circuit Court 

19 100 South Oakdale 

Medford, Oregon 97501-3127 

20 

Ellen F. Rosenblum 

21 Oregon Attorney General 

1162 Court Street NE 

22 Salem, Oregon 97301-4096 

23 LARRY PAUL MENTEER 

Assistant Water Master, District 13, 

24 Department of Water Resources 

10 S. Oakdale, Rm. 309A 

25 Medford, OR 97501 

26 BRUCESUND 

Assistant Regional Manager, 

27 OWRD Southwest Region 

10 S. Oakdale, Rm. 309A 

28 Medford, OR 97501 

Complaint for Money Damages page2 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 2 of 35
1 

BARTON T. CHAPMAN 

2 Assistant Water Master, District 13, 

Department of Water Resources 

3 10 S. Oakdale, Rm. 309A 

Medford, OR 97501 

4 

BRENDA BATEMAN 

5 Technical Services Division 

Oregon Water Resources Department 

6 725 Summer Street NE 

Salem, OR 97301 

7 

ANITA HUFFMAN 

8 Oregon Water Resources Department 

725 Summer Street NE 

9 Salem, OR 97301 

10 PHILLIP WARD 

Oregon Water Resources Department 

11 725 Summer Street NE 

Salem, OR 97301 

12 

DWIGHT FRENCH, 

13 Oregon Department of Water Resources 

725 Summer St. NE, Suite A. 

14 Salem, OR 97301 

15 GARY THOMPSON, 

Oregon Department of State Police 

16 4500 Rogue Valley Hwy. Suite A 

Central Point, OR 97502-1636 

17 

JANELLE RENE MCFARLAND-DUNLEVY 

18 Oregon Department of State Police 

4500 Rogue Valley Hwy. Suite A 

19 Central Point, OR 97502-1636 

20 JEFF ALLISON 

255 Capitol St NE 

21 4th Floor 

Salem, OR 97310 

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Oregon Department of State Police 

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4500 Rogue Valley Hwy., Suite A 

Central Point, Oregon 97502-1636 

Officers Involved: 

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David Gifford 

26 Josh Nugent 

Kirk Meyer 

27 Jeff Thompson 

Mike Cushman 

28 Brad Bennet 

Complaint for Money Damages page 3 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 3 of 35
1 Marty Marchand 

Lynn Withers 

2 Don Frerichs 

Jason Stone 

3 

Oregon Department of Transportation 

4 White City I District 8 

1 00 Antelope road 

5 White City, Oregon 97503 

6 Equipment Operators I Drivers 

7 Steve Sill 

Keith Mills 

8 Everett Carroll 

Jerry Marmon 

9 Jeremiah Griffin 

George Harshmen 

10 Rich Gonzolves 

Statement of the Case 

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Plaintiff owns real estate at 1876 Crowfoot Road, Eagle Point, Oregon, under a Patent issued 

by the United States of America as No. 994[Exhibit 2] recorded in the public record at book 43, page 

449, and No.1096823[Exhibit 5], recorded in the public record at Book 219 Page 43, being regular 

on their face, is a contract executed and executory between plaintiff and the United States of 

America, forever. Said Patent contains language that coveys all the right title and interest the United 

States of America held in the land prior to issue of the patent and all appurtenances that attach to the 

land, including but not limited to the use of all water and other natural resources associated with the 

land. 

Defendants under color of state law trespassed upon plaintiffs private property in total 

disregard of the rights secured to plaintiff, destroyed private property, arrested and imprisoned 

plaintiff for no crime, and destroyed the ponds lawfully constructed thereon. Defendants colluded 

together to destroy property, violate rights, arrest and imprison plaintiff without due process and in 

violation of clearly established laws. Defendants by their collective actions caused plaintiff to be 

imprisoned without due process and a meaningful trial, held in solitary confinement for over 61 days. 

Complaint for Money Damages page4 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 4 of 35
Defendants actions were willful, intentional, and in total disregard of the Constitution of Oregon, 

2 Article 1, Section 9, 11, 16, 19, 22, 34 and the Constitution of the United State, Article 1, Section 10, 

3 Clause 1 and the Bill of Rights Article 1,4, 5, 6, 7, 9, 10 and 14. During the trial in Jackson County 

4 Circuit Court, Judges and Attorney General colluded for the purpose of creating a Motion in Limine 

5 and Order [Exhibit 70] in order to prevent plaintiff from exercising his rights under Letters Patent 

6 from the United States, and prevent certified copies of the Letters Patent from being presented to the 

7 Jury, thus prejudicing the jury, tampering with evidence, and denying plaintiff due process under the 

8 Fifth and Fourteenth Amendments and the Article 1, Section 11 Oregon Constitution. 

9 Defendants are sued in their individual and official capacity. 

10 

11 Factual Allegations 

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13 1. The patent for lands issued by the United States of America is conclusive evidence ofthe 

14 estate in lands granted and is the only evidence of lawful title. 

15 2. A certified copy of the patent should be obtained to set at rest any adverse claim against the 

16 patent. 

17 3. The STATE OF OREGON and all of its agents and employees are bound to obey the 

18 Constitution of Oregon and the Constitution of the United States, c. 1789-1791. 

19 4. Article 1, Section 10 of the Constitution of the United States, c. 1789-1791 is in fact a Bill 

20 of Rights for protection of the people of the state against legislative enactments. 

21 5. When state legislators violate their oath to support and defend the Constitutions and pass 

22 legislation that is not authorized under the Constitution of the United States or the Constitution of 

23 Oregon their acts are void and have no force of law. 

24 6. Plaintiff attaches hereto and incorporates herein the Affidavit of Gary Allen Harrington as 

25 if fully stated herein. 

26 7. The law is very jealous of the liberty ofthe citizen. 

27 8. One who interferes with another's liberty does so at his peril. 

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Complaint for Money Damages page 5 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 5 of 35
9. Every confinement of the person is an imprisonment, whether it be in a common prison, or 

2 in a private house, or in the stocks, or even by forcibly detaining one in the public street. 

3 10. False imprisonment has been well defined to be a trespass committed by one man against the 

4 person of another, by unlawfully arresting him and detaining him without any legal authority. 

5 11. Article 1, Section 21 of the Oregon Constitution prohibits the state and all its actors from 

6 passing any ex-post facto law, or law impairing the obligations of contracts. 

7 12. An unconstitutional act is not law. It creates no office, imposes no duty, it is in legal 

8 contemplation as though it was never passed. 

9 13. Oregon cannot appropriate water rights previously granted without just compensation making 

10 the Acts of 1909 and 1925 unconstitutional. 

11 14. Article 1, Section 10, Clause 1 of the Constitution of the United States is a Bill of Rights 

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against State action by these express words, "No State shall, pass any law impairing the obligations 

of contracts." 

15. A patent from the United States of America to the original grantee is a contract executed and 

executory to the heirs and assigns forever. 

16. Oregon Laws at ORS 93.650 and 93.680 place restrictions upon all State actors including 

17 judges and all officers of the court, providing authority for all litigants to place into the records of 

18 proceedings "patents" from the United States or Oregon for lands granted. 

19 1 7. A patent for land is the highest form of title known to our law and is conclusive evidence 

20 against everything except a senior patent. 

21 18. A patent extinguishes all of the rights the government previously held in the land granted 

22 including the "water rights" at common law. 

23 19. A patent is a grant of the, "land, with the appurtenances thereof, unto the said claimant and 

24 the heirs and assigns of the said claimant forever; subject to any vested and accrued water rights for 

25 mining, agricultural, manufacturing, or other purposes, ... " 

26 20. A state Act that attempts to divest any right granted impairs the obligation of the grant and 

27 is void. 

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Complaint for Money Damages page 6 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 6 of 35
1 21. The State of Oregon and all its officers, agents and employees are fiduciaries of the Public 

2 Trust and hold their office or position at the pleasure of the people they serve. 

3 22. One who holds a public office owes a public trust duty to the People to execute his office or 

4 position in compliance with the Acts of the Legislature that govern their conduct and the 

5 Constitution of Oregon which is the superior law that controls the agent and the agency. 

6 Count One. 

7 Trespass. 

8 23. Plaintiff restates paragraphs 1 thru 22 above as if fully stated herein. 

9 24. Plaintiff incorporates the Affidavit of Gary Allen Harrington, points 1 thru 102 and its 

10 supporting exhibits 1 thru 110 as if fully stated herein. 

11 25. Defendants collectively participated in trespass and colluded with other actors to trespass on 

12 multiple occasions with the intent that their conduct cause social, emotional and financial harm and 

13 injury to plaintiff, including the removal oflawfully existing ponds for water storage for the purpose 

14 of fire suppression and possible irrigation of plaintiffs private property. 

15 26. Defendants knew or should have known that Patents for lands from the United States create 

16 absolute title in the owner thereof, said titles are not cut off by the creation of the state, and the state 

17 has no jurisdiction on the patented lands. 

18 27. Defendants collectively exceeded their authority, entered land without a valid warrant, 

19 destroyed private property and seized and destroyed property outside of the dominion and control 

20 of defendants, to the legal injury of plaintiff and plaintiffs private property rights. 

21 28. Defendants by their reckless and intentional trespass caused injury to the social, emotional, 

22 financial, and property rights of plaintiff in the amount of $1 ,000,000 dollars per named defendant. 

23 CountTwo 

24 Taking of private property for public use without just compensation. 

25 29. Plaintiff restates paragraphs 1 thru 22 above as if fully stated herein. 

26 30. Plaintiff incorporates the Affidavit of Gary Allen Harrington, points 1 thru 102 and its 

27 supporting exhibits as if fully stated herein. 

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Complaint for Money Damages page 7 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 7 of 35
1 31. Defendants named herein, while acting in their official capacity, used the authority of the 

2 State to start an action against plaintiff which they knew or should have known was in violation of 

3 rights secured to plaintiff under the Patents for Lands issued by the United States of America. 

4 32. Defendants while possessed of the knowledge that plaintiff had the right to impound rain 

5 water or other water that crossed this private property, ignored plaintiff's prior right and colluded 

6 together in order to fabricate a pretended violation of an Act of the Oregon Legislature that claimed 

7 to appropriate all of the water including all water rights in existence on plaintiff's private property. 

8 33. Defendants ignored and refused to honor the Patents from the United States that clearly 

9 granted plaintiff the right to any and all water and other natural resources on these patented acres. 

10 34. Defendants used the administrative hearing system of the STATE OF OREGON to further 

11 their conspiracy to deprive plaintiff of property rights in the patents and used their administrative 

12 process to take away plaintiff's right to water and property rights in the ponds that were built with 

13 county and state approval and then approval rescinded and the ponds destroyed. 

14 35. Defendants colluded and conspired together and set up circumstances that would cause 

15 plaintiff to invest many thousands of dollars to make improvement to the existing pond in order to 

16 obtain the alleged required "permit" which they knew in advance would not be kept in order to cause 

17 plaintifffinancial injury. 

18 36. Defendants through their actions and promises tricked plaintiff into pleading guilty to 

19 misdemeanor charge of "illegally appropriating waters of the state" a criminal charge which they 

20 knew or should have known could not exist against a Patent issued by the United States of America. 

21 3 7. The collective conduct of defendant causes a "taking" of private property "three ponds" and 

22 a taking of the monies spent by plaintiff in building and improving the new and existing ponds to 

23 defendants' specifications prior to issuance of permits. The taking was made permanent by 

24 defendants removing the ponds and destroying the improvement completed by plaintiff at large 

25 financial expense. 

26 38. Plaintiff suffered loss ofthe use and enjoyment ofthe ponds, the security ofknowing, in case 

27 of fire, sufficient water was available to defend plaintiff's private property from wild fires, the tens 

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Complaint for Money Damages page 8 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 8 of 35
1 of thousands of dollars spent to construct, improve, and maintain the ponds while they were in use, 

2 and the cost of their destruction in the amount of$100,000.00 per defendant named. 

3 Count Three 

4 False Arrest 

5 39. Plaintiff restates paragraphs 1 thru 22 above as if fully stated herein. 

6 40. Plaintiff incorporates the Affidavit of Gary Allen Harrington, points 1 thru 1 02 and its 

7 supporting exhibits as if fully stated herein. 

8 41. Defendants colluded and conspired together in order to create a criminal violation while they 

9 knew or should have known that a Patent from the United States of America carries with it the right 

10 to the use of all water and minerals that exist upon, under or pass over or by, the land granted. 

11 42. Defendants, State of Oregon, by and through its Legislative Branch knew or should have 

12 known that a previous Legislature had adopted an Ordinance Irrevocable (Oregon Admissions Act) 

13 to never interfere with the primary disposal of the public lands or with any regulations Congress 

14 may find necessary for securing the title in said land to bona fide purchasers, such as plaintiff. 

15 43. Defendants colluded and conspired to convert the exercise of the rights granted by the United 

16 States of America through the Letters Patent on plaintiffs property into a "criminal offense" in order 

17 to punish plaintiff and his family members while defendants knew or should have known that the 

18 claim and exercise of constitutionally secured rights cannot be converted into a crime. 

19 44. Defendants colluded and conspired to punish plaintiff in order to extort and discourage others 

20 who are possessed of the same rights to refrain from constructing ponds to catch water which all 

21 property owners have a right to do irrespective of any ordinance or laws passed by the state, county 

22 or city government. 

23 45. Defendants colluded and conspired to create a "criminal charge" against plaintiff, even 

24 though they knew or reasonably should have known, that Letters Patent from the United States of 

25 America grant "water" rights to plaintiff. 

26 46. Defendants knew or should have known the existence of Letters Patent due to the fact that 

27 every County in Oregon maintains Books and Records known as "The Transcripts ofPatents" where 

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Complaint for Money Damages page 9 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 9 of 35
1 said Letters Patent issued by the United States of America is required by Act of Congress to be 

2 Transcribed by hand, word for word, and certified to be true and correct upon request. 

3 4 7. As a direct and proximate cause of the collusion and conspiracy perpetrated by defendants, 

4 plaintiff was arrested on six ( 6) separate occasions and either placed in jail [lodged] or processed and 

5 released, wherefore plaintiff suffered social, emotional, financial damages of$1 ,000,000 dollars per 

6 named defendant per incident. 

7 CountFour 

8 False Imprisonment 

9 48. Plaintiff restates paragraphs 1 thru 22 above as if fully stated herein. 

10 49. . Plaintiff incorporates the Affidavit of Gary Allen Harrington, points 1 thru 102 and its 

11 supporting exhibits as if fully stated herein. 

12 50. Defendants colluded and conspired to create false charges against plaintiff in order to create 

13 a criminal record and defame plaintiff in the community when they knew or should have known that 

14 plaintiffhad the right to impound all water that falls upon the Patented property per the Transcript 

15 of Patent maintained in the Jackson County Records. 

16 51. Defendants while possessed of the superior knowledge of the law intentionally ignored the 

17 law and continued to violate plaintiffs rights and conspire to imprison plaintiff for an alleged crime 

18 of No Permit to Appropriate Water, when they knew or should have known, the Letters Patent 

19 secured in plaintiff as an "assign" of all the right, title and interest of the original grantee which 

20 included the right to use all water found upon or under the land granted. 

21 52. Defendants sentenced plaintiff to prison for a combined time of, One hundred one ( 1 01) days 

22 of which, Sixty one ( 61) days was spent in solitary confinement for violating a statutory scheme 

23 which they knew or should have known could not be applied to plaintiff and plaintiffs property 

24 rights under the Letters Patent. 

25 53. As a direct and proximate cause of the collusion and conspiracy perpetrated by defendants 

26 and the resultant imprisonment plaintiff claims damages for illegal imprisonment by an 

27 administrative agency for 1 01 days equals 2424 hours, equals 145,440 minutes, at $2500 per minute, 

28 equals 363,600,000 dollars. 

Complaint for Money Damages page 10 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 10 of 35
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Count Five 

Impairing the Obligations of Contracts Article 1, Section 10, Clause 1 

3 54. Plaintiff restates paragraphs 1 thru 22 above as if fully stated herein. 

4 55. Plaintiff incorporates the Affidavit of Gary Allen Harrington, points 1 thru 102 and its 

5 supporting exhibits as if fully stated herein. 

6 56. Defendants while possessed of the superior knowledge of the law and higher duty to obey 

7 the laws, intentionally and with malice ignored the law and their oath of office duty to follow the law 

8 scrupulously. Defendants intentionally and with malice toward plaintiff as a property owner under 

9 Letter Patent from the United States of America ignored their duty to the Constitution of the United 

10 States and enacted an alleged law that violates Article 1, Section 10, clause 1 No state shall, pass any 

11 law impairing the obligations of contracts. 

12 57. Defendants knew or should have known that the Letters Patent from the United States of 

13 America constitute a "contract" executed and executory between plaintiff and the United States of 

14 America, forever. 

15 58. Defendants ignored their duty to recognize the superior title to the land which granted 

16 plaintiff all the "appurtenances" necessary for the enjoyment of the land contained in the grants. 

17 59. Defendants were under a fiduciary duty imposed by their oath of office, or implied by their 

18 position in public office, with or without an oath, or as a "private" employee of public agencies, to 

19 be mindful of the rights of plaintiff and plaintiffs family members. 

20 60. Defendants willfully and intentionally with malice breached their duty to the legal and 

21 personal injury of plaintiff when they ignored the Letters Patent and claimed via, color oflaw statute, 

22 a superior right to the water that belongs to plaintiff, which impairs the obligation of the contract 

23 (Letters Patent) between plaintiff as "assign" in the chain of title, and the United States of America. 

24 61. As a direct and proximate cause of defendant's action of impairing the obligations of said 

25 contract, plaintiff suffered social, emotional and fmancial damages of 1,000,000 dollars per named 

26 defendant. 

27 Count Six 

28 Cruel and Unusual Punishment 

Complaint for Money Damages page 11 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 11 of 35
1 62. Plaintiff restates paragraphs 1 thru 22 above as if fully stated herein. 

2 63. Plaintiff incorporates the Affidavit of Gary Allen Harrington, points 1 thru 102 and its 

3 supporting exhibits as if fully stated herein. 

4 64. Defendants colluded and conspired to create false charges against plaintiff in order to create 

5 a criminal record and defame plaintiff in the community when they knew or should have known that 

6 plaintiff had the right to impound all water that falls upon the Patented property per the Transcript 

7 of Patent maintained in the Jackson County Records. 

8 65. Defendants acted in concert with others and conspired to devise a scheme whereby they could 

9 use Oregon Courts and their administrative officers and procedures to punish plaintiff and cause 

10 plaintiff severe mental stress and injury by placing plaintiff in solitary confinement and thus compel 

11 plaintiff to obey their unlawful commands to plaintiffs legal injury. 

12 66. Defendants while under a duty to plaintiff and the Constitution of Oregon and the United 

13 States of America, ignored their public trust duty and worked in concert to create a criminal offense 

14 where none can exist at common law, in order to manufacture an offense punishable by 

15 imprisonment, when they knew or should have known that placing plaintiff in "solitary confinement" 

16 for such a long period of time (61) days, without a judgement of wrongdoing would be considered 

1 7 as "cruel and unusual punishment". 

18 67. As a direct and proximate cause of defendants' reckless and intentional action plaintiff 

19 suffered damage for the abusive and cruel punishment of 61 days in solitary confinement, the mental, 

20 social and emotional damages caused by defendants reckless and intentional disregard for plaintiffs 

21 rights under the Letters Patent from the United States the sum of2,500 dollars per minute of solitary 

22 confinement of219,600,000 dollars. 

23 Count Seven 

24 Breach of Fiduciary & Public Trust Duty 

25 68. Plaintiff restates paragraphs 1 thru 22 above as if fully stated herein. 

26 69. Plaintiff incorporates the Affidavit of Gary Allen Harrington, points 1 thru 1 02 and its 

27 supporting exhibits as if fully stated herein. 

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Complaint for Money Damages page 12 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 12 of 35
70. Individual Respondents named in Complaint are public officers. All public officers are under 

2 a public trust duty to perform the functions of their respective position in compliance with the 

3 Constitution of Oregon and the Constitution of the United States of America. 

4 71. All public officers, within whatever branch and at whatever level of our government, and 

5 whatever be their private vocations, are trustees of the people, and do accordingly labor under every 

6 disability and prohibition imposed by law upon trustees relative to the making of personal financial 

7 gain from the discharge of their trusts. 

8 72. A public officer, in holding a position of public trust, stands in a fiduciary relationship to the 

9 citizens that he or she has been elected to serve. See Trist v. Child, 88 U.S. (21 Wall.) 441,450,22 

10 L.Ed. 623 (1874); Felkner v. Chariho Regional School Committee, 968 A.2d 865, 874, R.I. 2009. 

11 73. This Constitution, and the Laws of the United States which shall be made in Pursuance 

12 thereof; and all Treaties made, or which shall be made, under the Authority of the United States, 

13 shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any 

14 Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 

15 7 4. As these decisions and the Restatement show, the development ofthe principle of restitution, 

16 both at law and in equity, as a remedy for breach by a public official of his fiduciary obligations has 

17 obviously been salutary. Restitution, by virtue of its adaptability to individual cases on equitable 

18 principles may, as we have seen, reach situations beyond the grasp of other civil or criminal remedies 

19 and do justice on equitable principles; where various alternatives were weighed with a view to 

20 working out justice so far as possible to all concerned, but always on the fundamental basis of 

21 preventing the unfaithful public official or public body profiting from his or its wrongdoing. See 65 

22 Harv.L.Rev. 502 (1952); Lenhoff, the Constructive Trust as a Remedy for Corruption in Public Life, 

23 54 Col.L.Rev. 214 (1954). 

24 75. A public official, clothed with qualified immunity, is not required to anticipate future 

25 development of constitutional doctrine, but he is required to respect the established constitutional 

26 rights of others. His qualified immunity is not available to him if he does not do that. Bever v. 

27 Gilbertson, 724 F.2d 1083, 1088 (1984). 

28 

Complaint for Money Damages page 13 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 13 of 35
1 76. Defendants' actions in this instant matter demonstrate they planned, colluded, and conspired 

2 among themselves to bring about the results obtained, the removal ofthe ponds lawfully placed upon 

3 plaintiff's private property which had harmed no one but merely added to the peace and enjoyment 

4 of plaintiffs property as secured by the Letters Patent from the United States of America. 

5 77. Defendants' actions were willful, reckless, and intentional. They colluded together for the 

6 purpose of ignoring the Letters Patent and the rights secured thereunder. Their plan included 

7 convincing plaintiff and others that upon completion of specific work and improvements "permits" 

8 for the alleged "illegal ponds" would in fact be issued. After expending thousands of dollars and 

9 hundreds of man hours oflabor, permits were in fact "issued" and then "rescinded". 

10 78. Restitution is the proper remedy for such egregious violations by public officers and 

11 employees of their fiduciary and public trust duty to protect the rights and property of plaintiff and 

12 obey the mandates of the Constitutions, state and federal, in relation to the Letters Patent and the 

13 resulting contractual relations involving plaintiff, the Letters Patent, and the United States of 

14 America. 

15 79. Restitution must include restoring the property to its original condition with the dams and 

16 head gates and all of the associated disturbances to the land and property of plaintiff restored to its 

17 original condition prior to the first act of trespass including compensation for the loss of use and all 

18 fines, fees and costs associated with the actions in state courts and administrative agency action. 

19 Count Eight 

20 Violation of Due Process Rights 

21 80. Plaintiff restates paragraphs 1 thru 22 above as if fully stated herein. 

22 81. Plaintiff incorporates the Affidavit of Gary Allen Harrington, points 1 thru 102 and its 

23 supporting exhibits as if fully stated herein. 

24 82. Defendants colluded with administrative hearings officers to violate plaintiffs due process 

25 right to a fair and impartial hearing by denying plaintiffs rights secured by state and federal law to 

26 enter into the record of the case a "certified copy" of the Letters Patent for the private lands owned 

27 by plaintiff. Thereby denying this material evidence from the jury and prejudicing plaintiff before 

28 the administrative agency. 

Complaint for Money Damages page 14 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 14 of 35
1 83. Judge Timothy Gerking, Judge Lorenzo Mejia and Attorney Patrick A. Flanagan acting as 

2 officers of the court knew or should have known that they are prohibited by federal and state law 

3 from denying plaintiff the right to enter into the record of any proceeding a certified copy of the 

4 Letters Patent from the United States of America, as provided by ORS 93.650 and 680 and Title 43 

5 §§57 and 83. 

6 84. Judge Timothy Gerking, Judge Lorenzo Mejia and Attorney Patrick A. Flanagan in collusion 

7 with other defendants, with their superior knowledge of the law, knew or should have known that 

8 the term "appurtenance" includes everything necessary for the enjoyment of the land granted 

9 including "water" necessary to sustain life and provide for the fullest enjoyment of the land granted. 

10 85. Judge Timothy Gerking and Attorney Patrick A. Flanagan while colluding with other 

11 defendants while possessed with their superior knowledge of the law, ignored the law to the injury 

12 of plaintiff by denying plaintiff the fundamental rights secured by the P\ 4 t\ 5th, 6th, 7th, and 9th 

13 Amendments of the Constitution of the United States and the Constitution of Oregon, Article 1, 

14 Section 8, 9, 10, and 11. 

15 86. Judge Timothy Gerking and Attorney Patrick A. Flanagan colluded together to create a 

16 Motion in Limine and Order [Exhibit 70] to be submitted by Attorney Patrick A. Flanagan that 

17 would "rip the guts out" of plaintiffs defense by preventing plaintiff from exercising the right, 

18 secured by Oregon and F ederallaws, referenced above, to enter certified copies of the Letters Patent 

19 into the record which would prejudice the states case and cause the jury to rule in plaintiff's favor, 

20 thus protecting plaintiffs right to use the water and maintain the ponds that were built on the 

21 patented land. 

22 87. Judge Timothy Gerking and Attorney Patrick A. Flanagan because of their superior 

23 knowledge of the law knew or should have known that a 'Motion in Limine' can only be used to 

24 avoid injection into trial of matters which are irrelevant, inadmissible and prejudicial and granting 

25 of motion is not a ruling on evidence where property drawn. Redding v. Ferguson, Tex.Civ.App., 

26 501 S.W.2d 717, 724. 

27 88. Judge Timothy Gerking and Attorney Patrick A. Flanagan with their higher standard and 

28 superior knowledge of the law, knew or should have known that preventing plaintiff from entering 

Complaint for Money Damages page 15 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 15 of 35
1 into the record the Letters Patent would violate state and federal laws enacted to protect plaintiff in 

2 cases such as this from this type of criminal conduct. 

3 89. Judge Timothy Gerking and Attorney Patrick A. Flanagan because of their superior 

4 knowledge and high standard of law knew or should have known that the Letters Patent were un5 refutable evidence the rights to the water claimed by plaintiff were in fact valid and secured thereby. 

6 90. Judge Timothy Gerking and Attorney Patrick A. Flanagan because of their superior 

7 knowledge of the law knew or should have known that once the jury was made aware of the Letters 

8 Patent and what was granted by them to the original grantee and his heirs and assigns 'forever', the 

9 jury could not find for defendants. 

10 91. In plaintiffs case the Motion in Limine was the vehicle used by, Judge Timothy Gerking and 

11 Attorney Patrick A. Flanagan, to prevent plaintiff from presenting the Letters Patent to the jury thus 

12 violating plaintiffs due process right to a fair and impartial hearing before an unbiased fact finder 

13 andjury. 

14 92. As a direct and proximate cause ofthe violation of plaintiffs due process right, plaintiff 

15 suffered financial, social, emotional injury and loss of rights secured by fundamental law in the 

16 amount of 685,500,000 dollars. 

17 Conclusion 

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93. A patent regularly issued by the government is the best and only evidence of a perfect title. 

The actual patent should be secured to place at rest any question as to validity of entries. Young v. 

Miller, 125 S.2d 257, 258(1960). 

94. ORS 93.650 Effect of record or certified transcript in evidence. The record of a conveyance 

duly recorded, or a transcript thereof certified by the county clerk in whose office it is recorded may 

be read in evidence in any court in the state, with the like effect as the original conveyance. However, 

the effect of such evidence may be rebutted by other competent testimony. 

95. The Letters Patent for lands from the United States of America is a contract within this 

clause, Article I, Section 10, Clause 1, whether made directly, or indirectly through a municipal 

corporation, and a statute repealing a prior grant is void. The prohibition extends to all legislation 

whereby the estate granted will be in anywise impaired. Fletcher v. Peck, 6 Cr. 137 (1810). 

Complaint for Money Damages page 16 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 16 of 35
1 96. An executed grant is impaired by a law operating to divest any right or estate vested under 

2 it, and any attempt to destroy such vested rights is unconstitutional and void; e.g. an act attempting 

3 to take property from the grantee and confer it upon another, or an act annulling former grants and 

4 declaring that the grantors shall stand seised of their former estates. Fletcher v. Peck, 6 Cr. 137 

5 (181 0); Gaines v. Buford, 1 Dana 481. 

6 97. A subsequent statute imposing conditions not contained in the original grant impairs the 

7 obligation of the grant and is void, and the legislature cannot by subsequent act, provide a different 

8 mode of perpetuating a trust in lands granted. Fletcher v. Peck, 6 Cr. 137 (1810). 

9 98. Defendants' action impaired the obligations of the grant and in effect destroyed rights secured 

1 0 to plaintiff as an assign in the chain of title. 

11 99. Defendants' action was planned and carried out by multiple agents and agencies in collusion 

12 to violate the intent of Congress with the creation of the Letters Patent as a muniment of title to 

13 secure lands to bona fide purchasers of the public lands. 

14 100. Defendants further violated state statutes and provisions of the state Constitution in order to 

15 damage plaintiff property and property rights when they knew, or should have known, the Letters 

16 Patent from the United States of America transfer all of the rights, title and interest the United States 

17 held in the patented property including the right to use any water on, under or passing by the land. 

18 Relief Demanded 

19 1 01. Plaintiff makes demand for the damages set out in this complaint. 

20 102. Defendants' actions were planned and carried out by a multitude of agents, officers and 

21 employees who were all under a public trust duty to protect plaintiff's rights and property. 

22 103. Defendants knowingly and willingly breached the public trust duty and damaged plaintiff and 

23 plaintiff's property in the amount set out herein above. 

24 104. Plaintiff does not know if an amount of damages can, or will ever, remove the scars from 

25 plaintiff's mind, body and relations in the community, neither is there any possible way to recapture 

26 the time out of life spent in prison at the hands of defendants. 

27 

28 

Complaint for Money Damages page 17 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 17 of 35
1 105. Plaintiff must be returned to the state of peace and privacy enjoyed prior to the destruction 

2 of the ponds, violations of rights, trespass upon rights and property every other and or additional 

3 relief the Court may feel just under the circumstances of this cause of action. 

4 Dated this'fr'hday ofFebruary 2016. 

5 

6 

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8 

9 

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11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

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Complaint for Money Damages page 18 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 18 of 35
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Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 20 of 35
2 

3 

4 

5 

RECEIVED AND FILED 

AUG 2;5 2011 

TRIAL COURT AO~~S~R 

DOCKETED BY_ (J11--

IN THE CIRCUIT COURT OF THESTATE OF OREGON 

FOR THE COUNTY OF JACKSON 

6 STATE OF OREGON, 

7 Plaintiff, 

Case No. 1 03843MI . 

MOTION IN LIMINE 

8 

9 

10 

II 

12 

13 

14 

15 

16 

v. 

GARY A. HARRINGTON, 

Defendant 

MOTION TN LIM.INE . 

The State moves for an order in limine barring testir;nony, evidence or reference in the 

presence of the jury to certain matters that are irrelevant and unduly prejudicial to the State, 

inCluding matters related to: 1) storage or use of water in reservoirs. for fighting fire; 2) federal ,, .. 

preemption of state water resource laws; 3) purported ponation of the reserVoirs and tise 6f . . 

water; 4) a contract to use water with local, state or federal.governnient; 5) Defendant's or other 

17 · reservoirs as "exempt"; 6) status of other reservoirs in the watershed; 7) use ofreservoiis·for 

18 fish; 8) whether the Oregon Water Resources Department decisions denying Defendant's 

19 applications for permits were incorrectiy decJded, ()f. any· othermatter exclusivelysubject to 

20 judicial review under the Administrative Procedure Act;an09) any~atterthat is the subject of 

2 I Defendant's pretrial motions. The State has·attemptedto anticipate Defenclant's arguments 

22 based mi. those he has made in other forums, The State res~rves ilie 'right to further move to bar 

23 . testimoily, evidence or reference to other matter~ that pef(mdaut may raise where this would be 

24 irrelevanfor unduly prejudicial to the State. The Stat~ requests oral argument at the previously 

25 schedule appearan~e o11 pretrial motions, which the Court has scheduled for September 1, 2011, 

26 and estimates that oral argument on this ·motion·"~ take approximately one ho~r. 

Page 1 - MOTION IN LIMINE 

S1v1P/ad31297257 6-v I 

Departmem of Justice 

1515 SW Fifth Ave, Suite!llO 

Portland. Olf97201 

{971) 673-J 880 1 Fax: (971) 673-5000 

EUibtt _7 ___ o __ _ 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 21 of 35
POINTS AND AUTHORITIES IN SUPPORT OF THE MOTION IN LIMINE 

This case concerns Defendant's unlawful storage of water in three reservoirs on his 

property. All waters from all sources ofwater supply belong to the public. ORS 537.110. A 

person "may not use, store or divert any waters until after the [Water Resources] department 

issues a permit to appropriate the waters." ORS 537.130(2). There is no dispute that Defendant 

"owns property near Eagle Point that is located within the Big Butte Creek watershed." 

Harrington v. Water Resources Departrnent, 216 Or. App. 16, 19, 171 P.3d 1001, 1002 (Or. 

App. 2007) (copy attached for the Comt's convenience). "In 1925, the legislature withdrew all 

waters within that watershed from appropriation other than for the use and benefit of the City of 

Medford, subject to pre-existing water rights." !d. (citing ORS 538.430). In 2002, Defendant 

I 1 submitted to the Department two applications for permits to store water in two reservoirs on his 

12 property and submitted a third application to store water in a third reservoir that he intended to 

13 constmct. ld 216 Or. App. at 20, 171 P .3d at 1002. 1 rhe Department ultimately denied all three 

14 applications because, in enacting ORS 538 .., , 1e legislature had withdrawn the water at issue 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

charged with Interfere/Use of Water Denied of which Defendant was convicted in 2008, based 

., on a plea of No Contest.-

1 Copies of the applications are attached hereto as Exhibit A to this motion. Defendant has 

previously submitted these applications as Exhibits 6, 7 and 8 to Defendant's Petition for Judicial 

Review in Harrington v. Water Resources Department, Case No. 04175023 (May 13, 2004, 

Jackson Cty), one of the petitions for review on appeal. !d. at 19. In addition, Defendants' 

applications were submitted as tmdisputed facts in Harrington v. Ward, eta!., Case No. CV06-

460-CO (D. Or.) (Docket #21, Exhibit 2 at 15-21). The State requests that the Cmut take judicial 

notice of Defendants' applications submitted previously by Defendant to this Court in another 

matter pursuant to Rule 201 (b) of the Oregon Evidence Code. The first application is to store 

water in reservoir "GG," which had been in existence for 28 years at the time of the application. 

Exhibit A at pp. 1-2. The second application is to store water in reservoir "Elk Ridge" which had 

been in existence for six years at the time of the application. Exhibit A at 3-4. The third 

appEcation is to construct a reservoir that Defendant's application indicates that Defendant had 

already constructed in 2001-2002. Exhibit A at 6. 

2 State ofOregon v. Harrington, Case No. 041788MI, Judgment of Conviction and Sentence, 

26 attached hereto as Exhibit B. The State requests that the Court take judicial notice of its own 

Judgment pursuant to Rule 20l(b) of the Oregon Evidence Code. 

Page 2 - MOTION IN LIMINE 

SMP/ad3/2972576-v I 

Department of Justice 

1515 SW Fifth Ave, Suite 410 

Portland, OR 97201 

(971) 673-1880 I Fax: (971) 673-5000 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 22 of 35
.LEGAL STANDARD· 

2 Evidence is inadmissible when it. is irrel~vl:}llt or wl1en .. its probative value is substantially 

3 outweighed by the~anger ofunfairpr~judjce, cqn[usion of the issues, or mislea:dingthejliry, or 

4 by considerations ofundl.le delay or needless presentation ofcumulative evidence." OEC402, -. ~ . . -- . ~ . . . : " - . . 

5 403. In determining ~hether the prqpati:ve ,v~lu_e of evidence is outweighed by its prejil(licial · 

6 impact, three factors must be considered: "[ 1] the need for the evidence; [2] its persuasiveness; 

7 (3] and its iru;tammatory eff~ct onJhe jury.~' S.tate ofOregon v. Mattila,:77 Or. App 219; 224, 

8 712 P.2d 832, 835 (1986}. 

9 I 

10 I. Evidence or referen~e to storage o.r.l.lse of water in reservoirs for purposes of' . ' . . -· . '.• - . ·.,.. -

11 fighting fire is a legal question,irrell~va:Qt an.d u11duly pr~judicial. . . ' ·- ·-- - -_.. . .. . -· ·- .. . . 

12 Defendant is likely to assert that the storage of water in the three reservoirs ori his · 

13 property is exe111pt from th~ !equiremet:Ittpo~tain a permit from the -Water Resources 

14 Department because he intends to use the water for fi:re~fjghting purposes or water from one or 

15 more of the reservoirs has been used for fire:-~ghtirtg purposes in the past. Exemption, from legal 

16 requirements is a legal question that should not be presented at trial. Evidence or reference to 

17 use of the water for fighting fire ~t trial i~ not relevant and would be unduly prejudicial to the . . . . ·'·· 

18. State. 

19 There is no ~xemption alloW,~g Defendant ~q stqre water in his reservoirs for later use for·· 

20 fire-fighting purposes. There is an exemption for the use of water for emergency fire-fighting 

21 purposes, if the water is already lawfully stored~ ORS 537.141(1)(a). In 1993, Martha Pagel, the 

22 Director ofWater Resources at that tiple, .explained the exemption and the distinction between . . . r . 

23 the use of water for emerge:q.cy fire~fighting purposes and the requirement of a perinit to legally 

24 store water in reservoirs: "[R]eference to fire fighting uses doesn't authorize the storage of 

25 water. Because 1hat's not an.emergency, preating a reservoir and having a pool of wateris not an 

26 emergency situation." Declaration of Shannon Ross, Exhibit 1 at 4 (transcript of legislative 

Page 3 - MOTION IN LIMINE 

SMP/ad3/2972576-v I 

Depanment of Justice 

1515 SW Fifth Ave; Suite410 

Penland, OR97201 

(971) 673-1880 I Fax: (971) 673-5000 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 23 of 35
hearing tapes). Therefore, if Defendant were lavvii.tlly permitted to store water in his reservoirs, 

2 then the water could be used for emergency fire-fighting purposes. However, the State will 

3 demonstrate that Defendant does not have a permit to store water in his reservoirs. Any 

4 testimony, evidence or reference to past or potential future use of the water that is unlawfully 

5 stored in the reservoirs for fire-fighting purposes is irrelevant to whether Defendant lawfully 

6 stored water in his reservoirs. 

7 In addition, any testimony, evidence or reference to the use of the water that is unlawfully 

8 stored in the reservoirs for emergency tire-fighting purposes would be unduly prejudicial to the 

9 State. There are likely many residents of Jackson County that have used or witnessed the use of 

10 water from ponds or reservoirs for emergency fire-fighting purposes. These jurors may not 

11 distinguish between the unlawful storage of the water in Defendants' reservoirs from the lawful 

12 use of water for emergency fire-fighting purposes. 

13 II. Evidence or reference to federal preemption of state water resource laws is a legal 

14 question, irrelevant and unduly prejudicial. 

15 Defendant is likely to assert that his storage and use of water in the three reservoirs is 

16 lawful based on a theory of federal preemption generally, or based on an alleged federal land 

17 patent or past or future use of water for emergency firefighting by the United States Forest 

18 Service. Federal preemption is a legal question that should not be presented at trial. Evidence or 

19 reference to federal preemption at trial is not relevant and would be unduly prejudicial to the 

20 State. 

21 There are three ways that federal law can preempt state law: (1) when Congress does so 

22 expressly; (2) when Congress "occupies the field"; or (3) when the laws conflict (either because 

23 compliance with both laws is physically impossible, or because the state law is an obstacle to the 

24 "full purposes and objectives of Congress"). English v. Gen. Elec. Co., 496 U.S. 72, 78-79 

25 (1990). Federal law doe.s not preempt state water resources law as it applies to Defendant in any 

26 of these respects. 

Page 4 - MOTION IN LIMINE 

SMP/adJ/2972576-v I 

Department of Justice 

1515 SW Fifth live, Suite 410 

Portland, OR 9720 I 

(971) 673-1 SRO I Fax: (971) 673-5000 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 24 of 35
To the extent Defendant attempts to argue federal preemption of state water law 

2 generally, there is no federal law that preempts the state water resources law. For many years 

3 prior to 1866, the right to use of water in the arid western states and territories was regulated by 

4 local rule and custom of prior appropriation. California Oregon Power Co. v. Beaver Portland 

5 Cement Co., 295 U.S. 142, 154 (1935). The federal government silently acquiesced in local 

6 regulation of water resources and then confirmed local regulation when it enacted the Acts of 

7 July 1866,3 July 9, 18704 and the Desert Land Act of1877. 5 !d. at 154-155. The Supreme Court 

8 later characterized the purpose of the Acts of 1866 and 1870 as "governmental recognition and 

9 sanction of possessory rights [including water rights] on public lands asserted under local laws 

10 and customs." Federal Power Comm'n v. State of Oregon, 349 U.S. 435,448 (1955). The 

11 Desert Lands Act provided that «such water rights were to be acquired in the manner provided by 

12 the law of the State oflocation." ld. Therefore, the federal government has long recognized that 

13 the right to water is a matter of state law. 

14 Defendant may attempt to argue at trial that he is a successor in interest to a federal land 

15 patent that entitles him to the water found on his property. If Defendant holds a federal land 

16 patent (which the State reserves the right to dispute), whether that land patent includes the right 

17 to store water in Defendant's reservoirs is a legal question that should be decided prior to trial. It 

18 is unlikely Defendant holds a federal land patent that includes the right to store water in his three 

19 reservoirs because in I 877, if not before, Congress severed all nonnavigable waters from public 

20 lands. California Oregon Power Co., 295 U.S. at 163-164. The right to store and use those 

21 waters was "subject to the plenary control" of the states. I d. Moreover, there is no dispute that 

· 22 Defendant constructed his three reservoirs and began impounding water well after 1925, the year 

24 

25 

26 

3 14 Stat. 253, see 43 U.S. C. § 661. 

4 16 Stat. 218, see 43 U.S.C. § 661. 

5 19 Stat. 377, see 43 U.S.C. § 321. 

Page 5 - MOTION IN LIMINE 

SMP/adJ/2972576-v I 

Depanment of Justice 

I SIS SW Fifth Ave, Suite 410 

Portland. OR 97201 

(971) 673-1880 I Fax: (971) 673-5000 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 25 of 35
the state legislature withdrew the water for the use and benefit of the City of Medford. See 

2 Exhibit B. 

3 Defendant may attempt to argue at trial that the United States Forest Service, a federal 

4 agency, has used in the past or may use in the future the water in Defendant's reservoirs for 

5 emergency firefighting purposes. Even if this is the case, a federal agency's use of water for 

6 emergency tirefighting purposes does not preempt the state law requirement that Defendant have 

7 a permit to store and use the water in his three reservoirs in the first instance. Federal agency use 

8 of water is not a federal law or regulation that preempts state law expressly, by occupying the 

9 tield or by creating a cont1ict. A federal agency does not have authority to preempt or exempt 

I 0 Defendant's storage and use of water from slate law requirements. 

11 Any evidence or reference to legal questions of federal preemption, including any attempt 

12 to introduce evidence or refer to the use of water from the reservoirs by the United States Forest 

13 Service, should be barred at trial because it would be conf-using to the jurors and unduly 

14 prejudicial to the state. 

15 III. Evidence or reference to the purported donation of the reservoirs and use of water 

16 is a legal question, irrelevant and unduly pnjudicial. 

17 Defendant may attempt to introduce evidence that be bas donated the three reservoirs on 

18 his property to the Town of Butte Falls for use for fire suppression or other use. Defendant 

19 cannot give away what he does not own.

6 ORS 538.430 (water in this watershed for the 

20 exclusive use and benefit of the City of Medford) .. tvloreover, Defendant's purported donation 

21 likely post-dates Defendant's unlawful acts that are the basis of this action. Introduction of 

22 evidence or reference to Defendant donating the reservoirs for firefighting use would be unduly 

23 prejudicial to the state. 

24 

25 

26 6 The Town cannot lawfully store the water for later use for emergency firefighting any more 

than Defendant could make the same use, as discussed in Section I above. 

Page 6 - MOTION IN LIMINE 

SMP/ad3/2972576-vi 

Department of .Justice 

1515 SW Fifth Ave, Suite 410 

Portland, OR 97201 

(971) 673-1880 I Fax: 1971) 673-5000 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 26 of 35
1 IV. Evidence or reference to a contract to use water with local, state or federal 

2 government, is a legal question, irrelevant and unduly prejudicial. 

3 Defendant may i'ntend to argue that the purported donation to the Town or some other 

4 contract cures his unlawful storage and use of water in his reservoirs based upon statutory 

5 language related to limited licenses to use stored water. The Department can issue a limited 

6 , license "to use stored water for purposes for which the stored water is authorized and in 

7 accordance with a contract with a local, state or federal government .... " ORS 537.143(1) and 

8 (9). In other words, a limited license to use stored water is limited to uses for which the stored 

9 water is a"~Jthorized. ld. The State will demonstrate that Defendant's storage of water is not 

10 authorized; therefore no limited license could issue for the use of it. Moreover, a limited license 

11 is for short-tem1 use and of fixed duration, not continual storage in reservoirs. ORS 537.143(1). 

12 Defendant's purported donation to the Town or any other contract does not cure Defendant's 

13 unlawful storage and use of water for these reasons, and the additional reason that such donation 

14 or contracts likely post-date Defendant's unlawful acts that are the basis of this action. Any 

15 evidence or reference to the purported donation or any other potential contract is a legal issue, 

16 not relevant and would be unduly prejudicial to the State. 

17 v. Evidence or reference to Defendant's or other reservoirs as "exempt" is a legal 

18 question, irrelevant and unduly prejudicial. 

19 Defendant may assert that his reservoirs are "exempt" ponds. Whether Defendant's 

20 reservoirs are exempt historical ponds is a legal question. In addition, Defendant should be 

21 barred from referring to or providing evidence of exempt historical ponds because it would 

22 confuse jurors who may own exempt ponds or know of landowners who have exempt ponds. 

23 Reference or evidence concerning exempt historical ponds would be unduly prejudicial to the 

24 state. 

25 Historically, many landowners had constructed reservoirs (ponds) for stock water, 

26 aesthetic or other purposes without applying for a state permit to create them or store water in 

Page 7 - MOTION IN LIN1INE 

SMP/ad3/2972576-vl 

Dep3rtment of Justice 

1515 SW Fifth Ave, Suite410 

Portland. OR 97201 

(971) 673-1880 I Fax: (971) 673-5000 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 27 of 35
them. Ross Declaration, Exhibit 2 at 1. To address these unauthorized reservoirs, in 1993, the 

2 Oregon Legislature adopted House Bill 2153, which was enacted into Oregon Law, Chapter 595, 

3 Section 3( I)( d). !d., Exhibit 3. This provision allowed landowners with reservoirs that were in 

4 existence p1ior to 1993 to be exempt from the pem1it requirements, but they could only qualify 

5 for the exemption if they provided notice to the Water Resources Department on or before 

6 January 1, 1995. I d. at Section 3(2). In testimony on HB 2153, the Director described this 

7 provision as "an 'amnesty period' for existing ponds in which the owners can apply for a regular 

8 water right. To qualify for this program, users must tile water applications before January 1, 

9 1995 ." Ross Declaration, Exhibit 2 at 2. This was referred to as the "pond registration system," 

10 which "[a]fter two years, the registration system would expire, and current water rights rules 

11 would apply to all ponds." Ross Declaration, Exhibit 4 at 1. In 1995, the State enacted as 

12 Oregon Laws 1995, Chapter 752, Section 2, which is codified as ORS 537.405. This provision 

13 essentially extended to January 31, 1997 the time to register existing small reservoirs as exempt. 

14 ORS 537.405(2)(a). 

15 Defendant cannot demonstrate that he registered his reservoirs as exempt existing small 

16 reservoirs. 7 Any reference to his reservoirs or other reservoirs in the watershed as exempt 

17 historical ponds is a legal question and would be unduly prejudicial to the State if referenced or 

18 introduced at trial. 

19 VI. Evidence or reference to the status of other reservoirs in the watershed is irrelevant, 

20 

21 

22 

?'"' _.) 

24 

involves a !egal question and is unduly prejudicial. 

Defendant may attempt to refer to or introduce evidence pertaining to water reservoirs or 

ponds in the vvatershed other than those on Defendant's property. Whether another person is 

unlawfully storing water in a pond or reservoir is irrelevant to whether Defendant's actions are 

25 7 According to Defendant's statement in his applications to the Department, only Reservoir 

"GG" existed prior to 1993, and Reservoir "Elk Ridge" was constructed in approximately 1996 

26 and Reservoir "Hoover II" was constructed in 2002. Exhibit B (Defendant's 2002 applications 

for permits). 

Page 8 - MOTION IN LIMINE 

SMP/ad3/2 972576-v 1 

Department of Justice 

1515 SW Fifth Ave, Suite410 

Portland, OR 97201 

(971) 673-1880 I Fax: (971) 673-5000 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 28 of 35
( 

7 prejudicial. • 

8 Defendant may attempt to reference or present evidence that the reservoirs on his 

9 property contain fish. There is no exemption-from the perrilit requirement for reservoirs storing 

10 water simply because-they may contain fish;' See ORS 537.14L There is a petmit exemption for 

11 fish screens, fishways and fish by-pass structl..ires (ORS 537.14l(d)), but none to keep fish. 

12 Thus. reference to the existence of fish in the reservoirs is not relevant, and it would be unduly · 

13 prejudicial to the State. 

14 Vlli. Evidence or reference to whetherthe Oregon.Water Resources Department .. 

15 decisions dtmying Defendant's applications for permits were incorrectly deCided, or any 

16 other matter exclusively subjf!Ct to judicial review under the Administrative Procedure Act. 

17 Defendant challenged the Water Resources Department's·decisions denying his 

18 applications for two permits to store water in reservoirs and a permit to· construct a third 

_19 reservoir. Harrington v. Water Reso·urcesDepartment/216 Or. App. 16, 20-21, 171 P.3d 1001, 

20 1003 (Or. App. 2007) (copy attached for the Court's convenience) (describing the procedural · 

21 posture of Jackson County Circuit Court case number 04175023). Defendant also challenged the 

22 regional watermaster' s orders to keep the head gates on each reservoir open because he was · 

23 illegally storing water. ld at2L The trial court granted the Department's motions for summary 

24 judgment in both cases, and Defendant appealed. !d. On appeal, Defendant attempted to argue 

25 8 To the extent that Defendant introduces evidence of any other person's storage or use of water 

26 that is unlawful, Defendant may subject sqch persons to state action, whether administrative,· 

civil Or C-riminal, depending on the facts of the matter. 

Page 9 - MOTION IN LLMINE 

SivlP/adJ/2972576-v I 

Department of Justice 

ISIS SW Fifth Ave, Suite410 

Portland, OR 9720 I 

(971) 673-1880 I Fax: {971) 673·5000 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 29 of 35
the Department did not have jurisdiction over diffuse surface waters. I d. at 24. The Court of 

2 Appeals held that the trial court did not have jurisdiction over that issue or any of Defendant's 

3 claims because he had failed to seek judicial review ofthe orders in a timely fashion. The court 

4 held Defendant could not circumvent the exclusive review process of the Administrative 

5 Procedures Act (APA) by filing a declaratory judgment action. 1d. at 25. Defendant could have 

6 raised his arguments that the Department did not have regulatory authority over diffuse waters in 

7 the permit proceedings before the Department or in challenging the Department's enforcement 

8 order. Defendant could not raise these arguments in a later-filed declaratory judgment action. 

9 !d. at 26. The Oregon Court of Appeals consistently has held that the AP A establishes the 

10 exclusive method to challenge decisions made by state agencies. ld. at 25-26 (citing Bay River v. 

11 Envir. Quality Conim., 26 Or. App. 717, 54 P.2d 620, rev. den., 276 Or. 555 (1976); Eppler v. 

12 Board ofTax Service Examiners, 189 Or. App. 216, 219, 75 P.3d 900 (2003); and Lake County v. 

13 State a/Oregon, 142 Or. App. 162,920 P.2d 1115 (1996)). 

14 The State expects Defendant to attempt to argue again that the water in his reservoirs is 

15 not subject to the legislative grant to the City of Medford the exclusive right to use all the waters 

16 of Big Butte Creek and its tributaries. ORS 538.430. Defendant cannot raise this legal argument 

17 as a defense here because it is subject to the exclusive review provisions of the APA. Nor can 

18 Defendant raise any other argument that the Department's orders denying his applications for 

19 permiLo:; to store water in the reservoirs or to construct the third reservoir were incorrectly 

20 decided. These arguments or evidence concerning these arguments may also include 

21 Defendant's theory that he does not need a permit based on a claimed federal land patent, that the 

22 he can store water for later use for fire-fighting purposes without a permit, or that he can store 

23 water in the reservoirs for fish. The exclusive avenue for review of the Department's final orders 

24 was through judicial review pursuant to the AP A. 

25 The State will demonstrate at trial that Defendant did not and does not have a permit that 

26 would allow him to lawfully store and use water in his reservoirs. Whether the Department's 

Page 10 - MOTION IN LIMINE 

SMP/ad3/2972576-v I 

Department of Justice 

1515 SW Fifth Ave, Suite 410 

Portland. OR 97201 

(971) 673-1880 I Fax: (971) 673-5000 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 30 of 35
1 decisions denying Defendant's applications were correct is exclusively subject to judicial review 

2 under the APA. Defendant sought judicial review of those decisions, as well as the 

3 Department's enforcement orders. Defendant was unsuccessful. Any discussion of whether the 

4 Department's decisions were correctly decided would only confuse the jury, waste scarce 

5 judicial resources by taking up time at trial, and would be unduly prejudicial to the State. 

6 IX. Evidence or reference to any matter that is the subject of Defendant's pretrial 

7 motions. 

8 The State has attempted to anticipate Defendant's arguments based on those he has made 

9 in other forums. If Defendant raises other issues or arguments in pretrial motions, the State 

1 0 . requests that Defendant be barred from referencing or introducing evidence pertaining to those 

11 ·issues or arguments to the extent that they are legal questions, irrelevant or unduly prejudicial to 

12 · the State. . ,)._ 

13 DATED this J2_ day of August, 2011. 

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Page 11 - MOTION IN LIMINE 

SMP/ad3/2972576-v I 

Respectfully submitted, 

JOHN R. KROGER 

Attorney General 

./SEP~p{RE ~-J~.r 1'#925908 

Senior Assistant Attorney General 

Trial Attorney 

Tel (971) 673-1880 

Fax (971) 673-5000 

Stephanie.M.Parent@doj .state.or.us 

Of Attorneys for Plaintiff 

Department of Justice 

!SIS SW Fifth Ave, Suite 410 

Portland, OR 9720 I 

(971) 673-1880 I Fax: (971) 673-5000 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 31 of 35
~-

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RECEIVED AND flLED 

SEP Q-8 Z0t1 

TRIALCQURT ADMINISTRATOR . DOCKElED BY-·~ ·· ·. 

IN THE CfRCUIT bbURl'dF TH.E STATEOF.6REGON FOR JACKSON COUNTY .. -: 

STATE ·OF OREGON', ·:.: r' .. :r-: - ;. :'" .r.·· 

·. ,) ; ·· .. Case·No. 10:.3843-fv11· 

) 

·-.: .... , .. 

· Plaintiff, 

:···><· r-·· --:.·. ._, 

v. . . } .O~DER .. , .. ''···' .... : .. . -~~,-.· .. , . . . . ">. 

GARY A. HARRINGTON,. _··. , ); 

) 

Defendant.: '··· ) ·." : 

-----""':..---_~. -~--. ,-:. _.,---~ .. · .. :·.· 

This matter ~me bet6¥~:the\~:~urtfor-~mbr:rlnib~s: h~~~ing on s~pt~mper 1, 

2011 purSuant to'bR·s·135.63f Th~'siate appe~~ing'by ~n~i ;tirough its ~unset Patrick • ·-· • . . .. · . • ' !" •. . 

A. Flanagan and ·stephani~ P~~~~t ari:d 'o~tenaarit ·appeaii~g .by and tl:t~ougb his 

counsel Gregocy Ab~l-and ·t11~ 66iuFiia~ng ~ea~dth~ ~rgu~~nts of~~u~~~-:~nd being 

fully advised' in thi{pt~mises fui~s ;6nth~ varib~s-motio~s filed a-s follo~s:' . . 

A state's Motion td"stnR~ Decl~ratl~~ ·~~d :E?<pert·i~tt~r~~ L.~~~~-~:>schroeder 

· an'dtd.'Exclude ::Y:e~iin16'Rv bh.~ur~'A·:· s~h;~~~er; .· 

Th~'State's<rv1oti8n to Strii<ii~ allowed .. Th~to~rt tiavlng r~yif3~~d the 

Declaration and l~tt~t~f~tt6r~ey''sdhrd~d:r ~~nside·~ .it ~~s~~ti~U~ top~~ 

·teg~lar#urtl~nt hy; ~h attbrneyother th~.~th~,~~~r~~~- ~f r~~.iq.r~: ~he . ' . 

Defendant and is otherwise improper under OEC 702. In any ev~nt, the 

co~tent~ of tho~e submissions are aim'6sf~~~irely d~p!icit~us a~cf ~~d nothing 

in~dditi6n-'to attdrneyAb~l,'s:~Atten arg~,;~n; i~ s~p~~rt of his ~liep~'s Mqtion . . . . ~ :·. :' .:-~·. . :·- -; .- ·-:.·:. . .. ._ - ·. . . : '; ·.- : 

to Qismiss. 

B. Defendant's Omnibus Motion to Dismiss 

1.); subject Matter Jui'isdicti6n: · : . ; . : . ~ -·. 

-1-0RDER 

1 

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Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 32 of 35
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a.) Defendant's motion based on the argument that the State lacks jurisdiction 

to regulate diffuse surface water is denied as a matter of law. The Court 

incorporates by reference this Court's 3/10/06 ruling on this issue in Gary 

Harrington, Petitioner, vs. Water Resources Department, of the State of 

Oregon, Water Resources Commission, of the State of Oregon, City of 

Medford, a Municipality, and Medford Water Commission, a Municipality, 

Respondents, Jackson County Case No. 041960ZO, which is attached to 

the State's Response to Defendant's Motion to Dismiss. 

b.) Defendant's motion based on the argument that the State, through the 

Water Resources Department, lacks jurisdiction to regulate waters, 

including diffuse surface water, within the Big Butte Creek watershed is 

denied as a matter of law. The Court incorporates by references this 

Court's 3/10/06 ruling on this issue in Gary Harrington, Petitioner, vs. 

Water Resources Department, of the State of Oregon, Water Resources 

Commission, of the State of Oregon, City of Medford, a Municipality, and 

Medford Water Commission, a Municipality, Respondents, Jackson 

County Case No. 041960ZO, which is attached to the State's Response to 

Defendant's Motion to Dismiss. Suffice it to say, the Water Resource 

Department has exclusive regulatory jurisdic~ion over all wat~rs i!l th~ 

~tate of Oregon including those waters in the BiQ Butte Creek watersh~d 

that is subject to ORS 538.430. 

2.) $elective or Vindictive Prosecution 

The record before the Court is insufficient on this issue and Defendant'~ 

motion is therefore denied. 

3.) :pouble Jeopardy 

-1-0RDER 

Defendant's motion is denied on the grounds that the subject prosecution 

is based on conduct that occurred well after the conduct that served as th 

basis for Defendant's previous conviction. 

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Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 33 of 35
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C.) The State's Motions in Limine 

i" 

-1-0RDER 

1. Evidence Regarding Storage and/or use atwater in reservoirs for 

firefighting and/or firefighijng training; 

Gral')tetd : :··. 

2. Evidenqe.regarding federal-preemption of State water resource 

laws. 

Granted . . . 

3. J.::.viden~ regarding. the purported donation of water in Defendant's 

reservoirs. 

_Gr~nted 

4. Evidence reg~rding contracts:between Defendant and public 

entities, inclucjin~ Ci~ of Butte Falls, for use.of watefirl Defendant's 

reservoirs. 

Granted 

5. t;.vidence regarding the exempt status of Defendant's reservoirs. 

Granted, unless defendant can establish a specific exemption other 

than ORS 537.141 (1) (a) & (b). 

6. Evidence regarding status of other reservoirs in the Big Butte Cre~ - - ~ . . .- .. 

watershed. . . 

..- Granted, unless Defendant intends: to use such evidence to : . . :·. - - . . 

~ e~tablish defense of selective, enforc~rnent an~, in that ev~nt, ~uej'l 

evidence wquld be admissible on that i~ue alcme. 

7. Evic:lence regarding fish in Defef1danf~ reservQj~. 

. .• ·. j ; "\fYVl l . 1 A, K-k "'; . Gr~nted . · il.\-vul~~ )f -qG' "'" \. v..r' · u 

8. Evidence regarding Defendant's application hj~tory for the. 

reservoirs in question and/or whether decisions by the OWRD with 

regard to same were correct. 

Granted 

3 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 34 of 35
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9. Any other evidence pertaining to issues embodied in Motions 1- 8. 

Denied at this time. 

D.) Defendant's Motion to Postpone 

Defendant's Motion is allowed and the trial is rescheduled to January 12, 

2012. No further motions to postpone by Defendant, except for 

extraordinary circumstances, will be considered by the Court. Defendant 

shall notify opposing counsel and the Court at least 30 days prior to trial of 

his intent to further assert the defense of selective or vindictive 

enforcement. If so, the trial of that issue will be bifurcated and tried first to 

the Court, unless either party, based on the submission of appropriate 

authority to the Court, requests that issue be tried to a jury, in which case 

a separate jury will be empanelled to hear that issue first. . y,( 

DATEDthis ~ dayofSeptember,2011. 

Patrick A. Flanagan, State Attorney 

~reg Ab~l, j\ttorney for Defendant 

-;=::::_~4 Tim Gerking 

Cfrcuit Court Judge 

-1-0RDER 

4 

Case 1:16-cv-00200-CL Document 1 Filed 02/04/16 Page 35 of 35