A decision is near on the first Nestlé court challenge

Initially posted on bark-out.org on 12/12/2013

The proposed Nestlé water exchange by the Oregon Department of Fish and Wildlife (ODFW) has been tied up in court for many months, thanks to a legal challenge initiated by Bark and Food & Water Watch, with representation by Crag Law Center. We received the draft decision on this first legal challenge earlier this week. Unfortunately, it is not in our favor.
What happened?

On December 10, 2013, an Administrative Law Judge (ALJ) issued a proposed order that the Oregon Department of Fish and Wildlife (ODFW) should not lose any portion of its water right at Oxbow Springs Hatchery. In doing so, the judge ruled against Bark and Food & Water Watch, who had challenged the ODFW’s use of its water right at Oxbow Springs. We allege that the agency is not using the full amount of its water right and is therefore subject to losing it under a ‘use it or lose it’ component of Oregon Water Law.

Why are we challenging the hatchery’s water right?

The water right in question is the spring water that would be transferred to the City of Cascade Locks with its final destination being plastic water bottles at the proposed Nestlé bottling plant in Cascade Locks. If ODFW can’t use it, then they cannot trade it to Cascade Locks.

Challenging ODWF’s water use is just one small step in a set of many legal actions we are prepared to take in order to prevent the Oregon Department of Fish and Wildlife from facilitating a water transfer that would allow for the infamously bad actor Nestlé to profit from an Oregon public water resource. The judge’s proposed order is essentially a draft decision and the final order will come from the Water Resources Department Director following several procedural steps.

When will the final decision be made?

Following the proposed order, we have 30 days to file exceptions to the ruling. Exceptions are legal or factual arguments to illustrate errors in the proposed order. The court or any other parties involved in the case have 10 days to respond to our exceptions before the Director issues the final order. We therefore expect a final order to be issued in January or February of 2014. If the Director’s final order is substantially the same as the proposed order, we may decide to appeal this decision.

Can Nestlé start bottling spring water after the final order is decided?
The short answer: no.

The long answer: The legal challenge to the ODFW’s water right is the first part of a long series of legal steps that we are committed to take to ensure that Nestlé never gets Mt. Hood spring water into plastic bottles. After this first step has concluded, there are still two more permitting decisions we can challenge. The first permit is the ODFW’s Water Transfer application, which the Water Resources Department approved back in February of 2012, but which has not proceeded. If and when this case is resolved, the Water Resources Department can issue a decision on the ODFW’s last necessary permit, its Water Exchange application. This permit would actually create a swap of water rights from the state of Oregon to the city of Cascade Locks, in order to be sold to Nestlé.

We intend to challenge all decisions as necessary to stop this proposal, and will continue to pressure the Governor as well as our state agencies that can put an end to Nestlé’s proposal.