Brownlee owners seek help from Congress, county

Landowners on Brownlee Reservoir who have been told by Idaho Power Co. that they must move mobile structures or sign leases limiting their ability to sell homes and other permanent buildings are asking the Baker County Board of Commissioners for help.

Andy Mitchell, whose family owns a cabin built in 1961 along the reservoir near Huntington, is among a group of more than 35 landowners who have formed a group and are asking county commissioners and Oregon’s congressional delegation for help.

“This is going to be bad publicity for Idaho Power and FERC,” Mitchell said.

FERC is the Federal Energy Regulatory Commission, the agency that is mandating Idaho Power deal with 31 instances in which a cabin or other structure was built on the property Idaho Power owns within eight feet of the reservoir’s high water line.

Of the 31 properties, 28 are on the Oregon shore.

FERC ordered Idaho Power to resolve those encroachments as part of the company’s application for a new license for its Hells Canyon Complex, which consists of Brownlee, Oxbow and Hells Canyon dams and their reservoirs.

In response to FERC’s order, Idaho Power has sent letters to the 31 property owners who have cabins, mobile homes or other buildings within eight feet of the reservoir’s high water line.

In some cases people who own property that adjoins Idaho Power’s land built multiple structures on the company’s land, and in other cases only part of a single structure encroaches on company property.

FERC’s order does not affect boat docks, which are allowed with a special use permit, according to Idaho Power.

At the March 3 commission meeting, Chairman Fred Warner Jr. said he has heard complaints from landowners along the reservoir and is urging Oregon Senator Ron Wyden and Rep. Greg Walden to look into the Federal Energy Regulatory Commission’s role in what some landowners consider an effort to usurp their rights.

“We need to work with our congressional delegation,” Warner said. “I think this is going to be a significant issue with the property owners. I think the biggest issue property owners have is the limitations on future uses of the (private) property.”

Warner questioned Idaho Power officials telling landowners that the company’s demands are “non-negotiable,” and that landowners with permanent structures who don’t want to move them must sign 10-year leases.

The trouble with those leases, according to property owners, is they would include a FERC-required clause prohibiting the lease from being transferred to another owner.

That clause would make it difficult for current owners to sell their property or even transfer it to a relative.

“I want to see some proof related to the high water mark,” Warner said. “The people have been there a long time. They are not causing a lot of trouble. They should be allowed to continue to use it.”

Mitchell said he believes the heart of the problem might be a new elevation survey indicating cabins and other structures, most built in the early 1960s, are within eight feet of the high water line.

At full pool, Brownlee’s surface is 2,077 feet above sea level. Idaho Power owns land along the reservoir up to 2,085 feet, and manages that property for public access, wildlife habitat and erosion control.

Mitchell said he and other landowners are baffled by Idaho Power’s claims because many of the buildings the company says are below 2,085 feet have been there for 40 to 50 years, and many have changed hands several times over the years.

As far as he and some of the other property owners have been able to determine, Mitchell said there’s never been a claim listed on any title reports or building permit applications filed with Baker County indicating those structures were on Idaho Power property.

According to an Idaho Power pamphlet, “as the property boundary (the 2,085-foot line) is not marked it can be difficult to determine the exactly location of the line.”

Gil Green, senior real estate specialist for Idaho Power, said the company first broached the subject with property owners about 1998. But a July 2009 order from FERC is the strongest edict yet calling for the company to ensure the encroaching buildings are either moved, or their owners sign a non-transferable lease.

That order says Idaho Power would be considered out of compliance with its operating license for Brownlee Dam if the company fails to deal with the issue, Green said.

“Most of these cabins were built in the early 1960s, a couple years after the reservoir was built,” Mitchell said. “My understanding is the land was purchased from the Coats family,” which he said also sold the land to Idaho Power for the reservoir, up to the 2,085-foot mark.

Mitchell also questioned why, if the property line was actually in question, his family was able to obtain a building permit from the county recently to complete an $18,000 remodeling project.

Commissioners Tim Kerns and Carl Stiff agreed that the whole situation seems a bit fishy.

“To now all of a sudden say the water comes up higher than it has in the past doesn’t make sense,” Stiff said.

“I question the survey” and the change in the high water mark, Kerns said.

Warner said he could see how erosion could cause the high water mark to move, especially on ground with a fairly flat slope.

“On flatter ground, the high water mark can come out a long way,” Warner said.

However, he said in his opinion it’s unfair to penalize property owners who have owned structures for decades, with no indication the buildings encroached on Idaho Power property.

Mitchell said 10 to 12 cabins in the vicinity of his family’s property were built right up to what was identified as the original high water mark. In many cases there’s not enough room to move the cabins elsewhere on the lots because the Snake River Road is in the way.

Idaho Power officials have been telling landowners that FERC pushed for the new contour survey, which Mitchell believes resulted in a high water line that is different from the original, possibly due to erosion of the reservoir’s banks, which could have caused the high water line to be extended onto the private property where the cabins and other structures were built decades ago.

However, he’s still investigating the matter and is hoping to get copies of the original survey work he believes was done by the U.S. Army Corps of Engineers in the 1950s when Brownlee dam was built.

“FERC is really pushing Idaho Power,” Mitchell said.

As part of its efforts to entice landowners to move “easily portable” structures such as mobile homes, Idaho Power is offering to pay landowners $30 per square foot, which the company pamphlet describes as “generous and fair.”

“I don’t know that $30 per square foot is generous,” Warner said.

Warner said the county’s definition of easily movable might not jibe with the definition used by Idaho Power in deciding what structures they can force people to move, as opposed to those required to sign temporary lease agreements for use of the Idaho Power land occupied in part by those private structures.

As far as the county is concerned, Warner said a portable mobile home is defined as one smaller than 500 square feet, with wheels still attached.

As for cabins, mobile homes with wheels removed and other structures such as garages, Warner said the county considers a structure to be permanent if it is attached and anchored to the ground, including things like pole buildings with posts anchored in the ground, even without foundations.