Based on those negotiated facts, the judge acquitted Kerivan. The case stems from a project that involved removing gravel and rocks from Sucker Creek. Kerivan used a bulldozer to extend a work platform into the stream and used a backhoe to excavate approximately 168 cubic yards of rock and gravel from the stream. He then transported the material to repair riprap and to surface a road on his property. Oregon's Removal-Fill Law requires people who will remove or fill 50 cubic yards or more in waters of the state to get a permit from the Division of State Lands.
Sucker Creek is designated as essential salmon habitat.
The removal-fill law does exempt certain specified agricultural activities from permit requirements under limited circumstances, Hanus said. The application of these exemptions depends upon the facts of the particular situation, she said. Kerivan claimed in facts presented to Judge Coon that repair of riprap and streambank stabilization is a normal farming activity and that he was entitled to remove gravel from Sucker Creek to do the repair work without a permit. The form of the judge's decision prevents the state from appealing it to a higher court. Kerivan also has pending in Josephine County court his own lawsuit against the division, in which he challenges the division's interpretations of certain exemptions in the removal-fill law.