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Fluid Values: Battles Over Water Rights

Farmers are squeezed as the nation rethinks the purposes of a river. When rules about common resources change, who should pay?

by Matt Jenkins

Published in the November/December 2007 issue of Orion magazine



Photograph | Peter Essick/Aurora

IN SPRINGTIME, THE KLAMATH BASIN, an intensively farmed enclave in the high desert along the Oregon-California border, can feel like a fruit-crate-label idyll brought to life. Lush, furrowed farms spread wide beneath the snowy flanks of Mount Shasta. The thousand-odd farmers here raise western staples such as cattle and wheat, grow horseradish and mint, supply potatoes to Frito-Lay—and, not so long ago, grew barley for Budweiser. 

But a spray-painted question on a hay shed’s roof shouts what is constantly at the forefront of everyone’s minds: GOT WATER?

On a bright January morning, in a garage just a stone’s throw from that hay shed, Dave Cacka—zipped up in a pair of coveralls with his name embroidered on a patch—is preparing an enormous pesticide spray-buggy for this year’s work.

Cacka (pronounced CHATCH-kuh) raised potatoes and grain for a bruising thirty-one years. “You’d get a couple bad years” when crop prices were low, he says, “but you’d always have that good year come along, and you’d heal up.” In 1995, Cacka’s father, who’d farmed with his son for many years, finally quit. Cacka, who is now fifty-four, says that “was the year I should’ve quit.” In 1996 the price of potatoes dropped to $1.50 per hundred-pound sack, the worst price since the Depression. The following several years weren’t much better, and Cacka couldn’t make enough money to pay back the operating note from his bank. Then came 2001. “The price was high that year,” he says—more than ten dollars per sack. “It would’ve bailed me out.”

But a 2001 drought, combined with a subtle shift in national consciousness, created a full-blown crisis for farmers here. The Klamath Project diverts about one-third of the water in the Klamath, the third-largest river on the west coast of the U.S., onto farmers’ fields. The river was once also home to the third-largest salmon run in the region, and its waters sustain shortnose and Lost River sucker fish in nearby Upper Klamath Lake—all fish that stand at the heart of the Klamath, Yurok, and Hoopa Indian cultures. But fish runs had dwindled as water was sent to farms, and coho salmon and both species of suckers are now protected under the Endangered Species Act.

The 2001 drought set the competing water demands of agriculture and fish squarely in opposition. That April, to keep water in the river and Upper Klamath Lake for the fish, the federal government for the first time ever locked the head gate of the main irrigation canal closed, cutting off water for most of the basin’s fourteen hundred farms.

“Not getting water in 2001 basically ended my farming career,” says Cacka. He estimates he lost a quarter-million dollars. He sold much of his equipment to get out from under the payments on it, and turned to pesticide spraying to bring in a paycheck—only to see his insurance premiums quadruple after the September 11 attacks. Cacka sold out to a crop-dusting operation down the road and now runs his spray buggy for that company. Four generations of his family have farmed this piece of land, but today he is a sharecropper.

The aftershocks of that summer still reverberate. In 2002, the Bush administration brought relief when it delivered a full supply of irrigation water—but the resulting low flows in the river, and a disease outbreak caused by warmer water, killed as many as 270,000 salmon. Then last year, to protect the returning offspring of the 2002 survivors, the federal government severely restricted commercial salmon fishing on the West Coast, putting many fishermen out of work for the year and crippling the economy of coastal fishing towns. And so the Klamath Basin is caught between the crusade to put water to work creating human prosperity, and the more recent acknowledgment of water’s importance in holding together ecosystems. The past several decades have seen much debate about how to protect and restore the ecosystems that have suffered from single-minded development for human gain, but a new question is emerging in the conversation here: who pays when water is taken away from people to help the environment?

IN THE EARLY 1900S, THE U.S. government began a dam-building campaign to provide water to farmers and settle the West. The program was imbued with near-mythic visions of a better world. The Klamath Project was one of the first federal irrigation projects, and the farmers here today are an unlikely conglomeration of the descendants of Czech immigrants, World War II veterans, and other souls of varying provenance. Cacka’s grandfather was born here and fought to coax a farm out of the desert. He traveled to Czechoslovakia and married a woman named Anna but returned to the Klamath without her, and it took him several years to earn enough to pay her way across the Atlantic.

When Anna finally arrived, she later told Cacka, her first thought was that “if she woulda had the money to buy a ticket to head back, she woulda left. She said it was the most godforsaken, miserable, rotten-looking place she’d ever seen in her life: sagebrush, jackrabbits, sand dunes . . .” But Anna did not leave. After her husband died when their son—Cacka’s father—was two, she took over the farm and eventually became a naturalized U.S. citizen. “She went back once, to visit family,” Cacka says. “She never went back again after that. She had no desire to. This was home.”

That fierce spirit may go a long way toward explaining the emotional tension as farmers in the basin struggle to adjust to a different world. At least four times during the summer of 2001 they forcibly reopened the locked canal head gate with blowtorch, chainsaw, and crowbar before a detachment of federal agents regained control. On its face, the fight was little more than the classic, oft-caricatured, western water war. But the crisis raised far-reaching questions about how changing conceptions regarding water can unravel human communities. 

Of all the national environmental-protection laws enacted over the past several decades, the Endangered Species Act has had the most profound implications for the byzantine hierarchy of western water rights, which gave precedence to those who first settled the land and first turned water out of streams for agriculture. Under that system, farmers’ claims to water had come to stand supreme. But the 1973 act raised the possibility that the need for water to protect endangered species could ultimately constitute a “super-right” that trumps all existing claims, drying up farmers’ fields in times of low water.

That possibility became a reality in the Klamath, and in October 2001, fourteen Klamath irrigation districts and several individual landowners pushed back. They sued the federal government in the U.S. Court of Federal Claims in Washington DC, arguing that, in invoking the Endangered Species Act to close the irrigation-canal head gate that spring, the government had violated their constitutional rights. The U.S. Constitution bars the government from taking “private property . . . for public use, without just compensation,” and the Klamath farmers claimed that the government had committed a “taking” of their property rights to the water. They sought $1 billion in compensation.

“It’s Fifth Amendment,” says Cacka. “What we were saying was ‘Yes, the federal government can take the water for Endangered Species Act purposes, but they need to compensate the water users for what they take.’”

That claim rests on an assumption that underlies many of the resource conflicts in the West: that a common resource—in this case water—has become the private property of the people who use it. But has it?

A LEGAL SCHOLAR NAMED JOSEPH SAX is one of the leading champions of the idea that water is an inherently public resource. Sax literally wrote the book on water law: his Legal Control of Water Resources is the standard casebook for the field. Now seventy-one, Sax retired from his post at the University of California, Berkeley’s Boalt Hall law school six years ago. When he appears in a courtroom to watch oral arguments—as he still habitually does—he is treated as a celebrity by lawyers from both sides of the case. He continues to write and lecture widely and, when he speaks publicly, frequently begins by noting that his own career reflects the broader shift in societal values. Last fall, during a speech at Boalt, Sax said, “We used to say to students, ‘You can divert water out of a stream for irrigation, for municipal use, for industrial use, and you can just keep taking it till there’s no more water left.’ In fact”—he paused to raise a finger for emphasis—“leaving water in the river was seen as wasteful.”

Behind that view of water, however, lay a fundamental acknowledgment that it is a special substance. Water law is grounded in the idea that water rights are inherently conditioned by limits intended to protect the public interest. While a person may have a right to water, it is a right to use that water, not to own the water itself.

That distinction is so important that several western states enshrined it in their constitutions. Yet the explicit recognition that, as Sax says, “water belongs to the state and can never be owned,” was, for many years, simply ignored. “Then,” Sax said, “1983 came along.” That year, the California Supreme Court issued its decision in National Audubon Society v. Superior Court of Alpine County, better known as the Mono Lake case. Since the 1940s, Los Angeles had diverted much of its municipal water supply from Mono Lake, on the east side of the Sierra Nevada. As a result, the high-desert lake shrank dramatically, imperiling the resident and migratory birds that depend on it. By 1979, conditions were so bad that several environmental groups sued to stop LA’s water diversions, arguing that their impacts on Mono Lake violated what is known as the public trust.

The concept of the public trust is an ancient legal doctrine that holds that government has an obligation to steward certain resources for the public good. It, like the public-interest provisions in water law, had long languished in obscurity. But the Mono Lake case pulled the public trust squarely into modern law. In 1983, the California high court ruled that—despite the fact that Los Angeles had been using water from Mono Lake for four decades—its diversions were, indeed, subject to the public trust. A subsequent decision by the state’s water regulators required LA to significantly reduce its diversions to protect the lake. The ruling has been hailed as a landmark in water law, and helped bring to the fore the fundamental public-interest limitations that temper water rights.

Sax, meanwhile, had pressed further, arguing that public-trust considerations are, of necessity, constantly evolving. In a 1990 article for the University of Colorado Law Review, he laid out the shifting interplay between public-trust considerations and property rights that would ultimately catch people like Dave Cacka in a vise. Sax invoked the economist Kenneth Boulding’s concept of spaceship Earth: “Boulding said that we were moving from what he called a cowboy economy, in which achievement was measured by ‘throughput,’ growth in production and consumption, to a spaceship economy, where achievement would be measured by our ability to maintain the stock of resources we had and to put them to effective and sustaining use. . . . Traditional water strategies were classic examples of Boulding’s description of the cowboy economy.”

Anticipating the dynamic of the Klamath crisis, Sax warned that property-rights claims could “constrain opportunities for change,” and he went on to insist that, in demanding that water be used to satisfy environmental needs, “a state is only reasserting a right it has always had and never granted away.” Then he put the situation back into planetary perspective. “For most of our history, largely because of the illusion of abundance we created, we have operated as if the private element of the property system was the whole of it, and the public elements could be relegated to a back corner. . . . Now, the reality of the spaceship economy is upon us.”

Yet just three weeks after the government shut off the Klamath farmers’ water, a federal claims court judge delivered a ruling in an unrelated case that opened huge possibilities for their cause. In Tulare Lake Basin Water Storage District v. U.S., farmers in a California irrigation district claimed a taking of their water property rights after the federal government limited their water deliveries to protect endangered fish in the early 1990s. On April 30, Judge John Wiese delivered the first of a pair of widely criticized rulings that would ultimately direct the federal government to pay $14 million, plus interest, to the Tulare water district. “The federal government is certainly free to preserve the fish,” wrote Wiese. “It must simply pay for the water it takes to do so.”

“OUR NOTION OF WHAT WATER IS GOOD FOR has changed,” Sax said last October when he spoke at Boalt Hall. “The real question beneath the legal questions, beneath these doctrinal theories, is how we transition from one agenda to another.”

He paused for an uncomfortably long time before he asked a question that was not entirely rhetorical: “Why is it that innocent people caught up in this social transition are asked to bear the cost, rather then the cost being borne by the public as a whole?”

A week earlier, I had met Sax and Brian Gray, who teaches water law at Hastings College of the Law, for lunch at a Thai restaurant in San Francisco’s Russian Hill neighborhood, not far from where Sax lives. Sax has argued in the past that, based on legal considerations alone, society owes nothing to such people, whom he has called “casualties of a changing world.” That afternoon, as he dispatched a bowl of rice noodles from his perch among the triangular pillows on the banquette, he allowed himself to range beyond the narrow legalistic view of his writings.

“The claim that’s made by the property-rights side—I mean the sort of rational property side, not the crazy people—is: ‘Look, if public values have changed, great. That’s the way of the world. But if public values have changed, why shouldn’t the public pay for the costs of these transitions? And if that means putting farmers out of business because you want to restore salmon runs, the costs of that ought to be generally borne by the public that benefits from these changes.’ That’s the real issue.” Gray pointed out that “you’re basically asking people to retire from a business that the government has, to a large extent, encouraged them to go into.” And with the empty noodle bowl before him, Sax said, “I think it would be healthy if we had more controversy about fairness and less about property rights.”

People truly hurt by the shifting agenda, he suggested, could—in the broader arena of public policy rather than the courts—steer the terms of the debate onto friendlier ground by arguing, “‘Look, you’re just really beating the hell out of us. We had no reason to prepare for this. We couldn’t have prepared for it.’ Your starting point ought to be, everybody’s got to take a little piece of this. The property debate is an either/or thing. No judge could say, ‘Well, you don’t have a property right, but I’m gonna award you half of what your claim is anyway, because I feel sorry for you.’”

As it turns out, federal claims court judge Francis Allegra acknowledged that very constraint when he delivered his initial ruling in the Klamath farmers’ case on August 31, 2005. Allegra made clear that he understood what was at stake, noting that the farmers “have long invested effort and expense in developing their lands based upon the expectation that the waters of the Klamath Basin would continue to flow, uninterrupted, for irrigation.” Nonetheless, he denied the farmers’ takings claim, delivering a sometimes tartly worded excoriation of their logic—and opining that Judge Wiese’s decision in the earlier Tulare case might have actually “awarded just compensation for the taking of interests that may well not exist.” In March 2007, Allegra dismissed the Klamath case.

IN THE KLAMATH BASIN, MIKE BYRNE seems to play the foil to Dave Cacka’s starched-straight Czech persona. A gruff fifty-six year old who roars around in a Dodge pickup that appears to have squeaked through an ambush, Byrne looks like he came into the world wearing a pair of irrigating boots, and he has a hard time sitting still. As we talked in his living room, he occasionally fished a cell phone out of his shirt pocket to answer calls.

Byrne heads the ad hoc committee that has shepherded the takings lawsuit since 2001, and he has a reputation among his fellow committee members for being both laconic and a little cranky. That reputation is not undeserved, and, in the wake of Allegra’s ruling, he had plenty to be cranky about. “Everybody thought they’d been wronged, and [attorney Roger Marzulla] came out here and told ‘em he was gonna go back and clean everybody’s clock,” Byrne said with a laugh. Then he fidgeted with the knee of his jeans. “But the judge didn’t buy our arguments too good, it’s pretty obvious.”

While many people in the Klamath fall back on god-and-apple-pie recitations about the righteousness of their fight, Mike Byrne can talk his way through the rhetoric to put the Klamath fight in the broader landscape. “We got along for nine decades without any problems,” he said, almost wistfully. Now, “people are saying, ‘No way, it ain’t gonna happen that way no more.’”

The defense-of-private-property formulation that is so popular here is appealing for its simplicity and punch, but it is a very blunt instrument for dealing with a transition whose costs could be finessed in subtler ways. As a remedy for the fundamental problem the farmers are facing, a takings claim seems like an idea that could only have been hatched on some distant moon. Even if they were to prevail in their planned appeal of Allegra’s final decision, Byrne said, “They give us cash. They don’t give us water.” And while a round of Treasury checks in farmers’ mailboxes is not an unwelcome prospect here, it would not realign the new calculus in which water’s ecological importance figures large.

Nor would it put farmers at the top of the water-rights hierarchy again, and that puts a lot more at stake. Dave Cacka’s son Joshua would have been the fifth generation in the family to farm, but after 2001 he left the Klamath Basin. “He didn’t want to take the risk,” Cacka says, “and I didn’t want him to take the risk.” Today, Joshua works in Boise, Idaho. “He’s a certified plastic welder,” says Cacka, “welds exotic plastics and Teflons and stuff.”

I asked Cacka whether the real issue is not how much farmers should get in compensation, but “what do we do about the people who are getting squeezed out? Even if it’s not giving them money for the water, can we . . .”

Cacka finished the question for me: “. . . retrain them to be greeters at Wal-Mart?” Then the overhead heater in his father’s garage kicked on and helped fill an uncomfortable silence.

Over and over, farmers in the Klamath have said they are facing foes—to whom they always referred in sinisterly vague terms—determined to “end irrigated agriculture.” Yet it is not at all clear that the farmers are, in fact, facing imminent demise. The drought of 2001 was a brutal awakening to the world run by new rules. Over the long run, the Klamath farmers are not facing a crisis of existence as much as a sort of adaptation, a tempering of what Brian Gray has called the “ancien régime” with contemporary environmental values.

By the spring of 2007, after their losses in court, many Klamath farmers were in a more conciliatory mood. Despite his bombast, Mike Byrne seemed to sense the opportunities that lie in everyone shouldering a little piece of the solution—and the hurt, as well. “Nature’s nature, and when it’s wet, you got a lot. And when it’s dry, you gotta suck it up everywhere,” he said. “There’s gonna be give and it’s gonna be painful. But to say, ‘This year, you can’t fish’ and ‘That year, you can’t farm’ . . . This rotating victims is a bunch of baloney.” Recently, during a series of closed-door negotiations over the future of several hydroelectric dams on the river, Klamath farmers began discussions with Indian tribes, Pacific Coast fishermen, and environmental groups about how to more equitably share the burden of future water shortages. 

 

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Matt Jenkins is a freelance writer and contributing editor to High Country News. He writes from Berkeley, California.

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