Get to Know A Sponsor – Karl Anuta

Pedal Pursuit is made possible by several awesome sponsors, including the Law Office of Karl G. Anuta, PC . We recently chatted with Karl about one of his more challenging environmental law cases, and how it required some thinking outside of the box.

Pedal Pursuit: Is there a particular environmental case you have worked on that was particularly challenging?

Karl: I had a case a couple of years ago, that required some very creative thinking, and I really enjoyed it. It was against a local “Special District” – a public body created under Oregon law – that had basically been “captured” by a grumpy old farmer.

Pedal Pursuit: How did the case come about?

Karl: The clients came to see me, with lots of photos and concerns and documents showing dredging and damage to a creek on their property. They came home one day to find a track hoe was dredging their favorite creek, as well as removing restoration plantings that they had done. They had never authorized the work on their property, and the equipment operator had also knocked down a fence to get to the creek. They called the sheriff who arrived and told the equipment operator to leave. After the sheriff left, the operator came back and did more damage.

Pedal Pursuit: What ended up happening?

Karl: Turned out it was a local Drainage District that had done the deed. The couple were members of the District, and they had objected at the annual meeting to the District President’s proposal to dredge the creek without state or federal permits. Also, coincidentally, the couple had a prior dispute with the same guy where he objected to the alignment of the fence between his property and theirs. Coincidentally, that was the same fence that the track hoe had obliterated.

In any event, apparently the District President was upset about the couple’s public rejection of his proposal. As far as we could tell, he had told the equipment operator to go ahead without the couple’s approval, and for good measure had the operator expand the dredging to remove a more than 30 year-old Willow tree and other trees the couple had planted.

When the couple complained about this activity as unlawful, and sent a Tort Claim Notice letter advising the District of their damages, the District Board (at the suggestion of the President) changed their Bylaws to include a provision that stated that any member who brought a claim against the District would be personally liable for all attorney fees incurred by the District – no matter what the outcome of the claim was. The couple felt bullied by the District, and that their ability to talk freely about and challenge what they believed was illegal conduct was being attacked. They were also worried that this would happen again, when the District next chose to dredge. 

To help this couple, I had to learn which laws applied to the District, evaluate the conduct of the District, determine if there were any actionable Clean Water Act (CWA) or other claims, and come up with a solution that would address both the damages and the potential future conduct. There were some very interesting issues, trying to work out the intersection of CWA and state Drainage District law.

We ended up filing suit against the District, and against the President of the District personally, in federal court. I combined common law trespass and nuisance claims, with a Section 1983 action. We alleged the District and President acted without the Engineering Plan (which Oregon law required these sort of Districts to have) and without having given Notice to the couple and an opportunity to “cure” any alleged obstructions in the creek in the statutorily mandated fashion (something else that was required by Drainage District statutes).

In addition, since the District was a form of local government acting under color of state law, we alleged their efforts to restrict the couple’s actions and activities violated the couples’ constitutional rights (1st Amendment as well as others).  We also alleged that if the President turned out to be acting outside the course and scope of his authorizations by the District, that he was personally liable for the conduct. This gave us potential damages claims, as well as injunctive relief opportunities, and the potential for recovery of attorney fees. 

Pedal Pursuit: How long did the case take to resolve?

Karl: It took roughly 3 years.  The couple first contacted me in November 2012 and the Settlement was ultimately signed in December 2015.

Pedal Pursuit: What was the result?

Karl: We ended up collecting about $36,000 from the insurance for the track hoe operator.  We also got a Settlement Agreement that was attached to and incorporated into an enforceable court Dismissal Order, with the District. So it basically functions as a Consent Decree. That Agreement obligated the President to resign from the Board; the Board to expand to include more members; and the District to remove the offending Bylaw and not adopt anything similar ever again.

The District also agreed to hire an Engineer; to adopt a plan to evaluate whether dredging even made sense; to rebuild the fence on the same alignment; to follow the statutory notice requirements in the future; and to obtain and have planted at the couple’s choice of location 20 native trees. The parties also agreed to a written Operating Plan for any future work that was proposed on the couple’s property, and that plan sets out what can be done, from where, and by what means.  

Pedal Pursuit: Would you bring a similar case again?

Karl: Absolutely. It was challenging, and time consuming, but  fun to find a way to rein in an out-of-control and antiquated public body, and to get some of the folks who had suffered at its hands some compensation.