Discuss: Fluid Values: Battles Over Water Rights

In May of 2006, I gave an extensively annotated paper at the University of California at Santa Barbara.  I have reproduced its abstract below.
If the abstract interests you, tell me your mailing address.  I will snail mail a copy to you to you, at no charge.
Willis A. (Bill) Frambach
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When the Fifth Amendment Takings Clause
Intersects the Public Trust Doctrine,
Inconsistent Theories of Social Justice Collide

Willis A. Frambach, J.D.

Takings Conference May 12 & 13, 2006 at the University of California at Santa Barbara, hosted by Perry Shapiro, Ph.D., Professor of Economics
http://www.econ.ucsb.edu/conferences/takings06/agenda.html

 
Abstract

One view is that all human rights flow from the grace of the sovereign in the place where questions of rights arise.  Another view is that human rights, such as those expressed in the U.S. Declaration of Independence, the French Declaration of the Rights of Man, the United Nations’ Universal Declaration of Human Rights and the writings of numerous respected authors are generally accepted expressions of human rights that do not flow from the grace of any earthly sovereign, although a sovereign may acknowledge that such rights exist and may enforce them.  Our founding fathers risked being hanged for treason when they declared boldly to George III that no sovereign is empowered to extinguish mankind’s inalienable rights.  Is that moral principle, which they imperiled their lives to assert, true today? 

The public trust doctrine, as a means of providing, protecting, and assuring certain human rights that do not flow from the grace of any earthly sovereign, limits the power of the sovereign to convey, or to have conveyed earlier, as private property some types of property, and it limits landowners’ uses of some properties, both irrespective of what documents of title say, imply, or omit. 

Real property law in the U.K., the U.S.A., and the other former British colonies is based upon the concept that initially the king owned all of the land, outright.  If that idea is valid, it follows that deeds, patents, or grants from the king or from a successor sovereign convey to private owners a “bundle of rights” to the property that includes the right to use it as the owner chooses, subject only to the current sovereign’s police powers, notwithstanding contentions about the public trust doctrine.

This author poses, tests, and invites tests of the hypothesis that when the human rights that underlie the public trust doctrine and “property rights,” based upon medieval English kings’ assertions and force of arms, conflict, “property rights” must recede.

I can relate to this article from a different viewpoint. We tried to be organic Greenhouse growers (tomatoes and cucumbers) but the costs related to being certified and the lack of market just killed us. I can see things from both the environmentalist and farmers viewpoint. Ouch!

Thanks to Matt Jenkins for a good article, but I think there are a few pertinent points left out.  First of all, the area being farmed on the Klamath is wildlife reserve, designated wilderness and public land…owned by the American public, not the farmers… even though they act as if they own the land.

The potatoes being grown there are the best “environmentally protected” potatoes in the world, which is more than can be said for the drained and dried-out and cracked wetlands, the fish, the wild fowl and the eagles (bears are already gone).  The wetlands are the feeding stations on the main Pacific Flyway for 1 million water fowl (formerly 6-7 million).  The salmon is a keystone species that brings nutrients from the sea hundreds of miles inland.  The nutrients are absorbed by wildlife and trees and salmon fry that will return as adults (if allowed to be spawned in the first place or if they are not sucked into the dam turbines when trying to get back to the sea).

During the 2001 drought, the reserve farmers received 68% of their normal water entitlement and the non-reserve farmers received 54%.  Wells were dug at public expense to accommodate their irrigation expectations and they received financial compensation, in some cases more than would have been earned by farming in the first place. 

The 45 electrically powered pumping stations provide irrigation water through hundreds of miles of canals and irrigation ditches, again, not paid for by the farmers.  During the 2002 drought, the farmers broke down the dam gates and flooded fields for irrigation water.  They flooded out highways and disrupted traffic…meanwhile, the Klamath river was dewatered below minimum flow-levels and the largest fish-kill in history occurred when the salmon run came in out of the cold Pacific waters and found themselves in warm, de-oxegenated, shallow river water that left many high and dry and bred disease like wildfire. 

The fishermen (about 3000 main income earners) and the Native American tribes who have legal rights to the salmon haven’t received a penny in compensation.

In 2002, the Wall St Journal found the US Geological Survey’s economic conclusions on the Klamath Basin showing that farming on the Klamath brings in about $100million/year.  Recreation brings in $800million.  If the area was restored as a national refuge for fishing, hunting and recreational activities, it would generate $3billion per year.  It would take $5billion to buy out the farmers’ leases and restore the area.

About half of the farmers in the area were willing to be bought out because it is difficult to farm in an area that is experiencing frequent droughts.  A few objectors got the proposal thrown out. 

The Bureau of Reclamation who devised the irrigation plan to make the “desert bloom” (while dewatering the wetlands, lakes and rivers), has a vested interest in making the farming initiative work.  Also, herbicide, fertiliser companies,pesticide companies and the Korean companies that receive a great portion of Klamath potatoes for chipping. 

At one time the fishing industry on the Klamath was worth billions.  The result of the 2002 drought was that the farmers got what they wanted and “minority group” when they are “soveriegn nations” with legal rights that happen to be living inside the United States.
During the last 150 years, since the re-plumbing of the Klamath Basin, the area has been sinkoing into enviornomental tail-spin, and yet, 5 more hydro-electricity dams have been proposed on the river.  As it is, the salmon can’t negotiate above the 180mile lower reaches of the Klamath.  For 57 miles, six dams stop their attempts to travel the 300 miles of the upper reaches to their breeding ground. 

PacifiCorp is the company that ownes the 6 dams on the Klamath. (The mother company is Scottish Power).  Furthermore, it is misleading to think that the local economy will be losing a source of sustainable food and farming if the farms are removed and the Klamath is restored to its national wilderness status.

The dams are up for renewed lisences at present and legal opinion is that at least two of them should be removed.  That is a less expensive measure than retrofitting salmon ladders and other measures to ensure the water quality, water levels and safety of the river as a fish run.  Furthermore, the reservoirs have toxic algae growing in them.  In places it has been found in concentrations 4000x the amount allowed in World Health Organisation guidelines.  This is a direct result of dams, farming and irrigating the Klamath Basin.  Children play, swim and water ski on those waters.

Finally, I would like to add that in most countries when the farming commumnities are hit with droughts, they understand that they cannot expect a full complement of water to grow crops.  Farmers usually reduce the size of their crops to reflect the amount of water available.

I so sympathise with anyone that is likely to lose their way of earning a living, but if it is clearly unsusainable for an area to support that practice, then people can fall back on their ingeniuety and do something else.  Any one of us could lose our occupations and we would have to do something else.  The Klamath farmers can thank their luck stars that they are not being displaced by a dam in a small Chinese farming community and likely to end up scavanging in the slum-sprawl of a mega-city with no sanatation or drinking water facilities.

Clearly, the western mindset of being able to have expectations fully met is unrealistic in a water stressed area such as the Klamath.  Water use and land use need to be looked at carefully to see where the wisdom of the situation lies.

During water stressed years such as 2001 and 2002, the river is only allowed “minimum flow levels” as a benchmark.  Even those meagre amounts were not enforced.  Perhaps the farmers could also have “minimum irrigation levels” that allow them the same odds of survival as the environment is expected to operate on. 

We must remember that we are guests on the earth.  Without the environment, we cease to exist.  Such flagrant disrespect of our provider is like playing Russian roulette.

I have heard Farmers in the Klamath say, “I’m not going to lose my farm for a suckerfish!  It’s just a fish…one species that might go extinct… and you expect the farmers to lose income…”  Similarly, one could say, “It’s just a potato and the farmers expect us to lose our eco-systems and the web of life that we all depend on for survival…”

PS.  Upon re-reading what I submitted, I noticed the mis-spellings.  Some of it is the fault of a glitch on my keyboard and some as a result of my fingers hitting the wrong keys.  Apologies.  At one point I was mentioning the Native American Tribes as “soveriegn nations”...not the farmers.  Please look at in context of the correction.  It should not detract from the content of the piece.  I have studied the Klamlath in depth in terms of sustainable development, water use and land use.  Thanks, Beth D.

Beth,

You rightly point out that there is a gigantic cloud of issues at play in the Klamath Basin — many of which are arcane in the extreme, and none of which are unimportant. But I think that the question of how we should address the social costs of these community transitions is not discussed as often, or forthrightly, as it should be, particularly in the Klamath. That was the question I wanted to bring forward with my story, and doing that meant I had to cut through the myriad other — admittedly entangled — issues there.

I’ll do that again now, and start by zeroing in on the notion that dislocated people should simply “fall back on their ingenuity and do something else.” That clearly is one approach. But as Brian Gray points out in the story, there are questions of equity with such an approach, because the farmers were originally encouraged by the government — and, by extension, the American people — to take up farming in the Klamath project, only to have the rules change on them. (That argument does nothing, I think, to diminish the fact that there are even more glaring equity issues related to how Indians and salmon fishermen have fared through all of this, too.) 

There are a number of precedents, alternatives and models of — for lack of a better phrase — “public support” for people displaced by economic and environmental transitions. The one most frequently discussed is job retraining, a tactic that has been used with U.S. autoworkers who have been laid off, to varying degrees of success. That idea was more recently adopted for loggers and other timber-industry workers in the Pacific Northwest, who lost their jobs as logging levels on public land were reduced under the Clinton-era Northwest Forest Plan. I’ll write a little bit more extensively about this in coming days.

There is, of course, the idea of temporarily stanching the bleeding with disaster relief payments. By contrast, buyouts — as you note — offer a lasting solution, if not always a popular one. In the wake of the 2001 crisis, there was a serious effort to put together a legislative package to offer money to Klamath farmers who wanted to sell out and basically retire from farming. A number of farmers expressed interest in such a package, although I’m not sure the number ever approached half of all the farmers in the basin (to the best of my knowledge, it was less than 100 of the roughly 1,000 farmers there). That effort did not get far, but when I reported this story earlier this year, my sense was that — largely due to the string of legal defeats the farmers have suffered in recent years — many of them are in a more conciliatory mood than in the past. So perhaps voluntary buyouts may be an idea whose time is finally ripe in the Klamath.

Buyouts, it seems, are a definitive concession that certain human activities have gone beyond the point that the land (and water) can handle. They are also amazingly contentious. After decades of full-throttle groundwater pumping in Nebraska, for instance, the state legislature in 2004 approved a measure to buy out farmers and return pumping to sustainable levels. Now, the state is trying to sort out the prickly details of how to buy out farmers who may be forced to sell against their will. And the large amounts of money required to buy out farms seems to take us back to the more philosophical question of what our responsibility as, say, individual taxpayers is to the “casualties of a changing world.”

Matt

One thing your article did not mention about the Mono Lake case was that the Mono Lake Committee successfully lobbied for replacement water supplies for Los Angeles. $36 million of state and $10 million of federal funding created “new” supplies of water through water conservation and reclamation.

The Mono Lake Committee partnered with Community Based Organizations to distribute ultra-low-flow toilets in the city. That program was so successful that it was discontinued after the residential market was saturated. Now water conservation is part of LA’s infrastructure! And LA is actually gaining more water from these programs than they used to get from the Mono Basin—LA actually gained water out of saving Mono Lake!

Reading your article, one would think this approach is cutting edge, yet it happened 15 years ago.

It becomes more complex with numerous agricultural water users. Walker Lake, NV, 60 miles NE of Mono Lake, is drying up, and about to lose its native Lahontan Cutthroat Trout fishery. Upstream agricultural diversions are again the cause. Senator Harry Reid got Farm Bill funding to buy out water rights from willing sellers, but in a basin that is overallocated, will it be enough? And will it be in time? As the EIS is developed, the lake continues to recede, and the fishery is crashing.

The other interesting question is the Westlands Water District in California. Land that many people agree is too salty to irrigate (causing horrible drainage problems) has contracts for water, and the Feds are on the hook to solve the drainage problem. The best solution would be to stop irrigating. But this water is subsidized, so it makes it hard to feel sorry for corporate agribusiness and want to help them out more when they are already profiting off a bad situation.

Sax’s point about fairness comes in here—the facts of each case are important in deciding what is fair when the legal rules might otherwise ignore who bears the costs of a transition to a sustainable society.

Matt,

I apologise for coming across as unconcerned about the farmers’ plight.  I certainly don’t want to throw them to the winds of fortune and I would love to see an equitable solution to this problem for all stakeholders in the Klamath.  I do feel that the starting point has got to be a mixture of conservation and sensible use of a diminished resource, considered allocation with the health of the entire basin at the heart of planning and a good-hearted sharing of this fragile resource.  This is a great opportunity to bring the people of the Klamath together as a inter-dependent community. 

There has got to be a deeper understanding within the farming community of the real impacts of agricultural pollutants on the local water quality and the eco-system degradation delivered by large dams that supply their irrigation water.  Education in sustainable agricultural practices is needed as is creation of new employment opportunities.  The farming community is being asked to make a transiton and will need wider community support and encouragement achieve better water and land use practices.  Old habits, even glaringly unsustainable ones, are hard to break because, until now, they have guaranteed production.  With loans to pay off, changing anything could be a risky proposition.

Water, as with all of our natural resources, is becoming more scarce and stressed as time goes on.  Perhaps the main question should be how we are going to use our resources.  Farming is necessary, but perhaps there are limits to growth in terms of how much farming the basin can support.  Is growing water thirsty alfalfa to feed to cows a sensible use of water in a water-stressed basin, particularly during drought years?
Perhaps subsidies could be given to farmers during drier years so that they could plant less or import cattle feed to allow the natural environment to continue providing eco-system services to the area to the best of its ability.

I do think that the farmers should be financially supported and rewarded in any efforts to create sustainable practices and to conserve water. 

As you rightly pointed out, Matt,  the farmers were encouraged post WWII to settle in the basin.  However, things have changed considerably since then and our understanding of human impact upon our biosphere has advanced.  The BuRec plan was born of Victorian values of “conquering nature”.  That does not mean that we should continue to follow that plan just because it was put in place before the consequences became apparent.

The irrigation project cannot be blamed for all water changes in the basin. Water is also susceptible to climatic influences and from clearcutting of forests, etc.  But, the project has definetly changed the physical interactions and ecological dynamics of an area that functioned admirably until we began meddling with it 150 years ago. 

We are just realising the impact of putting water everywhere it does not belong.  The farmers’ livlihoods depend on this misallocation of resources, a practice that is not sustainable, unless we are talking about sustaining yield from fields only.  Furthermore, the practice of pumping water through miles and miles of canals and channels to irriate fields may not have a future in the greater picture of peaking fossil fuels.  The hydro-electricity used to pump water around the irrigation project might be demanded elsewhere in the next decade or so.

You are quite right to point out that there are limits to water use and abstraction from groundwater reservoirs.  Untrammeled water use for any reason, merely because it creates jobs or income, needs to be looked at again.

Funnily enough, I posed the question of water use in the Klamath Basin to a group of Geography degree students just the other day.  They seemed to think that the main problems were misinformation and lack of information within the local population.  They also suggested that local steering groups consisting of all stakeholders would make better headway than central government decisions.

Again, localisation seems to be a perceived way forward.

Greg –

I think your comments about the Mono Lake decision raise an important point that merits reiteration here. I’ll start by backtracking just a bit, and saying that in the broader public mind, public trust and takings debates are often seen as two distinct issues. But both, in fact, center on the same question: Are things like water and forests are a private, commodified resource, or are they a public resource whose true worth is not susceptible to the standard economic valuations?

To press forward: Where that question has been debated, not in the abstract but with regard to real-world resource conflicts — in public-trust cases such as the fight over Mono Lake, and in takings cases such as that in the Klamath — the story has turned out to be as much one of true compromise as of the triumph of any one legal doctrine over another.

The restoration of Mono Lake is the perfect example: The Mono Lake Committee was incredibly active in helping Los Angeles find replacement water for the supplies that it lost with the court ruling. In a 2001 law-review article that they wrote nearly 20 years after the decision, Leigh Jewell and Tony Arnold argued that the Mono Lake Committee’s efforts to help Los Angeles “turned what could have been a doctrinally astonishing but practically ineffective judicial decision into effective protection for the Mono Lake ecosystem.” 

They also note that the Mono Lake decision may not have stood for long without the Committee’s pragmatic efforts to help out its erstwhile adversary. Simply forcing Los Angeles to reduce its take of Mono water without providing alternative supplies “might,” they wrote, “have generated political forces and public pressures that would have weakened the public trust doctrine altogether. It is not inconceivable that a large, thirsty Southern California electorate could have used the initiative process to pass a constitutional amendment limiting the public trust doctrine’s applicability to water rights.”

All of this, I think, points up the fact that lofty legal theory rarely carries the day or offers the most useful solutions to resource problems — which, again, seems to be one of the most profound lessons from the Klamath crisis and its aftershocks.

(For die-hard readers, Jewell and Arnold’s paper provides a detailed look at the compromises and extra-judicial wrangling the followed the Mono Lake decision. The paper appeared as “Litigation’s Bounded Effectiveness and the Real Public Trust Doctrine: The Aftermath of the Mono Lake Case” in West-Northwest, the Hastings law school’s environmental law and policy journal, in Fall 2001.)
—Matt