Cadmus walked down the furrow, planting the teeth, and scarce had he done so when clods began to move aside and spear-points rise above them. Helmets with nodding plumes came up, next shoulders and breasts and limbs of men with weapons, and in time a whole harvest of armed warriors. And the whole crowd fell to smiting and fighting each other till all fell, slain with mutual wounds, except a few survivors. And one of them said to another, "If you think this is bad, go check out western Nevada."
freely adapted from Bullfinches Mythology
by Steve Miller
t has been hailed as Senator Reids lasting legacy a great emerging bi-state "settlement" of the water wars which have marked the east slope of the Sierras since the earliest days of Nevada statehood. It will be, it has been said, the capstone of Reids long career in public service, and perhaps also just incidentally, of course a demonstration to all and sundry that the ungainly, earnest boy from Searchlight has succeeded where even the charismatic Senator Paul Laxalt had failed.
Clearly, whatever ensues in the wake of Reids Public Law 101-618 will still be the senators legacy to the people of Nevada. But as current events are already demonstrating, that legacy, rather than an end to western Nevada water wars, is turning out to be a great deal more conflict and very bitter conflict at that. So what happened?
Darkness at the Heart
The basic problem, long recognized in the Lahontan Valley, is that there is a darkness right at the heart of PL 101-618. As an independent congressionally funded study pointed out earlier this year, Reids legislation was structured from the start to essentially ignore the rights and interests of Nevadans living in the farming community of Fallon.
"[N]owhere in the stated purposes of PL 101-618 are the interests of the irrigation communities elevated to be coequal with the other major interests in the basins," noted the study, prepared for the Western Water Policy Review Advisory Commission1. Given the fact that Reids legislation was based on an earlier pact2 worked out between precisely those other major interests, such neglect may not at first seem surprising.
But it was not merely benign neglect that was operating vis-a-vis the Lahontan Valley irrigation community.
As soon became apparent after the start of Truckee River Operating Agreement negotiations, a consensus already existed among most of the non-irrigator participants. And it was that the irrigators should be the main course.
As the 250-page WWPRAC post-mortem analysis3 put it, from the beginning of the talks it was the Newlands Projects Truckee-Carson Irrigation District water that "was targeted to meet the needs of [the] other participants."
Those other participants included not only the Pyramid Lake Paiute Indian tribe, the Sierra Pacific Power Company, environmentalist organizations, Washoe County and the cities of Reno and Sparks, but also Department of Justice lawyers (closely allied with the Pyramid Lake tribe), and U.S. Department of Interior representatives from eight different agencies. All those representatives were being told by DOI higher-ups, it was later revealed, to not do anything "that would perpetuate the [Newlands] Project."
To most of the participants in the so-called settlement talks, note the authors of the study, good negotiating by the irrigators became effectively defined as "their agreeing to give up water." On the other hand, "the irrigators basic negotiating objective, as articulated by the TCID, was to keep their water rights whole."
The resulting impasse was so pronounced that the consulting firm which prepared the commissions report would later cite those "settlement" negotiations as in many ways "a case study in how to alienate a party to the extent that it is driven from the solution process."
There is a strong argument to be made that this was actually part of the agenda underlying PL 101-618 all along. Of the seven purposes stated in Title II of the law, only one, notwithstanding the titles name, "Truckee-Carson-Pyramid Lake Water Rights Settlement Act," was to "encourage settlement of litigation and claims." Four of the stated purposes, on the other hand, can in hindsight be arguably seen as intended to divert water away from Churchill County irrigation uses, and do it by essentially brute force, against the Fallon farming communitys will:
b) authorize modification to the purposes and operations of the [Newlands] Reclamation project facilities to provide benefits to fish and wildlife
c) authorize acquisition of water rights for fish and wildlife;
f) fulfill the goals of the Endangered Species Act by promoting the enhancement and recovery of the Pyramid Lake fishery; and
g) protect significant wetlands from further degradation and enhance the habitat of many species of wildlife which depend on those wetlands, and for other purposes.
In addition, Reids law also included a remarkable and explicit abrogation of Newlands property owners constitutional rights to due process, in the form of a seven-year ban on legal redress against any arbitrary and hostile administrative actions taken by the Secretary of the Interior, of which there have been many4:
"Notwithstanding any other provision of law, the operating criteria and procedures for the reclamation project adopted by the Secretary on April 15, 1988 shall remain in effect through December 31, 1997, unless the Secretary decides in his sole discretion that changes are necessary to comply with his obligations, including those under the Endangered Species Act. No court or administrative tribunal shall have jurisdiction to set aside any of such operation criteria and procedures or to order or direct that they be changed in any way. All actions taken heretofore by the Secretary under any operating criteria and procedures are hereby declared to be valid and shall not be subject to review in any judicial or administrative proceeding "
New Talk, Same Old Game
Thus, in many ways, rather than legislation to actually settle western Nevada water wars, PL 101-618 appears to have been instead largely a new and more sophisticated (or, vis-a-vis the general public, deceptive) offensive in precisely those same old wars specifically, an effort to divide up Newlands Project irrigation water for the benefit of an organized coalition of opposing interests. And rather than initiating an era of water peace in the Sierras, the law instead is simply the occasion for deployment of what might be described as an entirely new generation of water warfare weaponry, strategy and tactics.
Still, Public Law 101-618 has been rightly recognized as epochal legislation. One important way in which it is, is the huge grants of power it gives, often in the form of specific mandates, to the Department of the Interior.
Senior officials of the DOI are reported to have acknowledged this. William Bettenberg, of the Secretarys policy analysis office, has, according to sources, said that when DOI officials really looked closely at the powers and options given them in Reids legislation, they saw they "could do a lot more with this operating agreement."5
One clear example was the laws suspension of irrigators rights to litigate against Interior Secretary Bruce Babbitt. With no injunctive or legal redress available thus to irrigators, the DOIs Operating Criteria and Procedures the rules it imposes on project irrigators could be institutionalized as a large hammer with which to convert increasingly ravaged farmers into what PL 101-618 refers to as "willing sellers."
Practically speaking, because the DOI is under mandate to fulfill the provisions of PL 101-618, there is no check on the agency in Churchill Countys Lahontan Valley.
Reids law is "the horse theyre riding here," said one lawyer, speaking from Churchill County, "and they they being the DOI really ride it. They take it anywhere they want to go," because "they get to pretty much interpret it any way they like "
Further, he says, when and if the Truckee River Operating Agreement is finally complete and published as a federal regulation, he expects the DOI will seek to incorporate into it those same OCAPs imposed on the Truckee Carson Irrigation District in 19886.
Another tool, similarly brutal, has been a coordinated, tag-team-like assault on the TCID by the Pyramid Lake Tribe and the Department of the Interior. It was described to Nevada Journal by three different lawyers.
Back in the mid-Eighties, the DOIs Bureau of Reclamation instructed the TCID to tell its holders of water rights they should file change applications with the Nevada State Engineer. The problem, said the BOR, was that areas were being watered that were "non-water-righted." But if the applications were made with the state engineer, the agency said, the problem would be corrected.
"Well, now 10 years after that, we have the U.S. fully joining with the Pyramid Tribe in the protest against those very transfer applications," notes one Lahontan attorney. "So its an absolute betrayal."
Those protests have been a favorite weapon of the Pyramid Lake Tribe against the Newlands Project and can block change applications for years while tribe legal counsels pursue multiple appeals, on upward through the federal courts.
The result, in the Project, has been to ratchet down the amount of water delivered by the government for irrigation.
A Reno water rights lawyer explains:
"The tactic has been to hold up as many of these things as you can," such that no water is delivered in the project.
"Then [the DOIs Bureau of] Reclamation comes along and looks at what you were irrigating last year and the year before, and if you werent irrigating it [then], you cant irrigate it this year. So it becomes in effect a ratchet, and [your] water allocation only goes down."
"Resistance is Futile"
One might expect that a U.S. Senator, when a department of the federal government is implementing that senators legislation, would ask that his own constituents be treated with more consideration. But in June, when a Fallon delegation visited Washington, a key Reid aide involved with implementation of PL 101-618 reportedly went out of his way to warn the city that continued legal resistance to the dismemberment of the Newlands Project would be futile.
"Weve got the very best people in America working on this," said the Reid staff member implicitly identifying Reids office with the activities of the Departments of Interior and Justice "and theyre paying more attention and devoting more time to this than anyplace in the West, with the possible exception of the [California] Central Valley."
Published reports have it that Senator Reid at least once directly expressed the view, his view that "the Newlands Project was a mistake." While one can believe that virtually all such federal reclamation projects represent a fundamental error by the U.S. government, it does not follow that the only way to resolve such a mistake is with the bloody club that PL 101-618 and the resulting TROA process have turned out to be.
Much simpler, less expensive, and more honest would have been to simply condemned the project in toto and pay full market value for the water rights involved.
Because that was not the approach, there are some close observers of water law issues in the West who believe that Reid and the Clinton Administration have a deeper agenda here. As one water lawyer puts it, "Public Law 101-618 is seen as a window by a few in the Department of Interior, through which they can eventually effect wholesale change in Western water law."
With Senator Reid largely signed on to the environmentalist agenda both nationally and in Nevada, Churchill Countys minimal electoral clout left it vulnerable in a way thats rare in American politics.
"If you go to Montana, or you go to Utah, or you go to Wyoming, or even California," one observer points out, "there will be a representative in Congress, either a Senator or a Congressman, speaking on behalf of the people in their state."
However, he asserts, the Lahontan Valley has no such representative. When Senator Reid exerts any pressure on DOI bureaucrats, it will be to the Bureau of Land Management on behalf of Las Vegas land developers like Del Webb7, who have been able to get prime Clark County real estate from the Department of Interior by assisting in the DOIs effort to destroy the Newlands Project8. Or, it will be to berate Bureau of Reclamation officials for not being sufficiently harsh on Fallon-area farmers. So there is a militance in the Senators office beginning with the Senator himself that perhaps would surprise most Nevadans.
Sources tell Nevada Journal that one of the congressional staffers most deeply involved in the drafting of Reids PL101-618 was heavy-hitter environmentalist lawyer Tom Jensen. Well-known in environmentalist circles, Jensen has worked as a senior Senate staffer on natural resources, legal adviser to the extreme environmentalist Congressman George Miller (D-CA), and executive director of the Flagstaff, Ariz.-based Grand Canyon Trust. He now is associate director for natural resources for Clintons Presidential Council of Environmental Quality, where Jensen was intimately involved in the highly controversial decision to create the 1.7 million-acre Grand Staircase-Escalante National Monument in Utah.
A declaration Jensen reportedly made at a Colorado legal conference may provide a clue to the kind of "wholesale change in Western water law" that Secretary of the Interior Bruce Babbitt may be pursuing. Jensens statement was to the effect that "we might as well understand that the law of prior-appropriations relation-back doctrine is a dead doctrine, an artifact, a relic."
What was he talking about?
The prior appropriations doctrine, and its relation-back rule, is a principle of law governing water rights in the 19 Western states. Under it the first settlers who moving west put various local water sources to beneficial use thereby established priority of right for the use of those particular waters. That priority of right legally constitutes a form of private property and thus, under the takings clause of the Bill of Rights, those rights are protected from uncompensated government confiscation.
No Takings? How Gauche
Not surprisingly, people with some kind of ideological or career interest in confiscating privately owned water rights many environmentalists and federal bureaucrats, for example often find the requirement that they pay full market price for what they want to take extremely annoying. Thus in many ways its not surprising that Jensen would be the source of denunciations of the prior appropriation rule which has bedeviled for decades efforts to implement, in many Western states, the goals of national environmentalist organizations via the apparatus of the federal land management bureaucracy.
Not being able to take private property for free, and having no budget of the size that would allow purchase of private land or resources at market prices, federal land managers (like their greener-than-thou allies) have often been thus stymied. Both the U.S. Forest Service and DOI bureaucracies have long made it very clear whether in testimony before Congress, in legal arguments advanced in hearings all over the West, or, most especially, in their treatment of private owners of water rights on federally administered land that they truly, deeply, dislike the prior appropriation doctrine.
What PL 101-618 offered these foes of the doctrine, in the view being reported here, was a unique chance to fundamentally weaken, once and for all, western states adherence to prior-appropriation law.
How could that be? After all, explicit language in Senator Reids legislation said nothing within it should be interpreted to modify existing Nevada or California law. And theres also the argument made by Robert Pelcyger, attorney for the Pyramid Lake Tribe, to Nevada Journal that neither California nor Nevada would knowingly be a party to an agreement that rewrote Western water law or re-wrote the prior appropriation doctrine. Pelcyger heatedly calls the specter of PL 101-618 in any way providing a template for endangering prior appropriation law in the states of the West "totally false." He attributes the charge entirely to the agenda of Lahontan Valley interests.
"Theyve got an agenda, theyve got a story to tell, and theyre trying to use you to tell their story," he told Nevada Journal.
But its actually one of the provisions of PL 101-618 most desired by Pelcygers own clients, goes the response from Lahontan Valley, that most moves the ball down the field for foes of prior appropriation law. That provision is the Pyramid tribes bid for all the unappropriated water in the Truckee River. Indeed, if the tribes remarkable claim to all unappropriated waters in the Truckee River is not resolved to the satisfaction of the tribe, it can, under PL 101-618, reject the entire final operating agreement. In deference to the tribe therefore, other parties in the TROA talks Reno and Sparks, Washoe County and Sierra Pacific Power Company four years ago agreed to freeze their own applications for the unappropriated Truckee waters.
Yet what the tribe is actually seeking, goes the argument, is not simply the remaining unallocated waters of the Truckee. When the details of the tribes actual demand are inspected, it is said to call for a de facto partial federalization of Nevada water law. This would be "a Nevada water right with a federal spin on it," says one Lahontan Valley lawyer, to some "four or five thousand acre feet" of Truckee River water that "is not impounded" but "can be impounded." As such that would mean Nevada water law is already on track to be twisted because of PL 101-618.
"Unappropriated water is very dangerous to Nevada water law," says this critic of the settlement talks. "Its very dangerous to anybody on the river, because it really doesnt deal with water, it deals with jurisdiction and mischief."
So it could be in this that federal opponents of the prior appropriation principle may see their doorway.
Although there are only some 2,400 Pyramid Lake Paiutes most on the reservation at the lake, some living in Reno the federal government, and specifically the Department of Interior again, is in a trusteeship position with them. And all over the American West there are Native American tribes with water grievances many of those grievances linked to endangered species concerns, and thus offering the DOI immensely powerful legal leverage in the federal courts.
Negotiated Settlements Everywhere
Another context where PL 101-618 might serve as "a template," advancing a Bruce Babbitt-kind of agenda, would be the Clinton administrations American Heritage Rivers Initiative, which in many ways would replicate the "Negotiated Settlement" approach all across the United States, placing major river basins, as the Truckee has been, under federally coordinated regional boards.
According to the White Houses Council on Environmental Quality (CEQ) where, of course, Tom Jensen is natural resource director the AHRI initiative had been designed to "help communities restore and protect their river services through better use of existing programs ... in a manner designed by the community." In 1997 the president was scheduled to designate 10 rivers to "receive special recognition and focused federal support," which would work through existing "partnerships."
Thus the AHRI program (never authorized by Congress, but nevertheless instituted by the administration), illustrates how the TROA "template" could be applied far and wide to pursue the implicit federalization of Americas rivers practically harnessing politically and economically powerful regional interests, isolating and disenfranchising relatively weak and politically incorrect owners of the actual water rights and presenting the arrangements as regional "settlements." Once ensconced in a regions settlement process, the DOI can, in effect, step over state governments, "partner" directly with interests who want to upset existing water allocation arrangements, and work to generate a local constituency for "new" and "creative" solutions.
Given the Department of Interiors long-evident desire to attain more direct control of Western waters, all this is no doubt easily conceivable. But at present even the proponents of this view can point to no incriminating documents.
"I dont know of an article or paper that clearly states that the feds will concentrate on Newlands and use it as a template for the rest of the West, to alter or modify prior appropriation law," says one. "But this is clearly, in our opinion, what is happening."
Its in this frame of reference that a recent apparent policy shift in the Nevada Attorney Generals office strikes some observers as most alarming. The context was a protest Churchill County had filed against a U.S. Fish and Wildlife application with the State Engineer to change the use of water rights, on some county land the feds now owned, from agricultural use to wetlands, so the water could be sent to the Stillwater Refuge. Churchill argued that the federal transfers were already creating dust hazards, water problems and environmental degradation in the county, but since the State Engineer ruled for the feds, the county appealed to state court.
Deputy Attorney General David Creekman, appearing for the State Engineer, asked the state court to dismiss the case, claiming that any issue involving Nevada water from a federally decreed stream has to be decided in the court that issued the decree in this case the Nevada Federal District Court, from which the Truckees Orr Ditch decree was issued in 1944.
That argument is adamantly denied by Churchill Countys lawyer in the case, Ryan Campbell, who, given the chance, will cite numerous cases where Orr Ditch water cases were, he says, decided by non-Orr Ditch courts, both state and federal. If he is correct, the natural question becomes whether extra-legal factors are now controlling the offices of the state engineer and attorney general.
Attorney General Frankie Sue Del Papa, of course, has often sided with the federal government on similar issues of vital concern to Nevada once even seeking to hire an environmentalist organization as "special counsel" to represent the state on the side of the federal government and against Nevada ranchers whose water rights had been confiscated by the U.S. Forest Service. Should Nevada give up jurisdiction over all cases involving federally decreed waters (which, legally, are required to be decided in accordance with Nevada law), it could become an even greater burden on Nevada resource industries.
"I wonder," asks another water lawyer, "if the State of Nevada is not going to find itself, after having argued that were going to defer to federal jurisdiction as to federal decrees, at the wrong end of the argument when the feds come in and say Well, we make our application through the state engineer because that is the procedure we follow, but this is a federal decree. This is a federal action, a federal decision."
Welcome to the Ghetto
Back in Fallon, PL 101-618 has settled into history as little more than a shrewd, well-muscled ploy to get around the rights of a relatively politically powerless minority and take their property at below-market rates. Because by now the alienation over how its people have been treated is deep, there are signs that a significant radicalization is well under way. Folks are clearly identifying with the segregated and dispossessed, the residents of ghettos and reservations.
"I equate it with the civil rights movement," says one member of Senator Reids own party. "The black is not going to get the right to vote through some consensus generated among those who dont want him to vote. [So] the strategy there was to use the courts because it wasnt majoritarianism, it was if you were one person against the whole rest of society, if you were right, you prevailed on a legal issue. They (the DOI and national environmentalist organizations] really want to move away from those notions, I think."
And theres the decisions by Fallon and Churchill County last year to adopt one of the Pyramid Paiute Tribes favorite tactics. Notwithstanding their own citizens bruises from the wholesale, programmatic protests of water rights transfers, the governments of the Lahontan Valley are now filing their own multiple protests against Truckee Meadows developers applications for use changes with the State Engineer.
But alienated Lahontan feeling its fighting for its collective life has even more in mind. Blaming Sierra Pacific Power Co., for example, for much of PL 101-618s assault on its people, Churchill County is moving to deprive the Truckee Meadows power monopoly of an annual estimated $25 million Churchill County income. Sources tell Nevada Journal the county is rushing to float a bond issue with which to replace Sierra Pacific by some other, out-of-state, purveyor of electricity. Talks are going on, reportedly, with California, Oregon and Idaho utilities.
The cliché has long had it that, in the West, "whiskeys for drinking, and waters for fighting." So while it remains to be seen whether Senators Reids law is going to ultimately change water law across the American West, it is clear that the legacy of Public Law 101-618 for Nevada has been to transpose the fighting into new and more varied venues.
But there are still echoes of the other, older, water wars. Fallon Mayor Ken Tedford notes parallels with what happened to another garden valley one in California surreptitiously drained of its entire river by the shrewd, covert machinations of Los Angeles growth interests.
"Its an Owens Valley all over," says Tedford. "Did you ever watch the movie Chinatown? "People die over this. They get murdered over water. Its nothing new. Thats how threatened that our valley feels." u
1 The 1992 Democratic Congress established the WWPRAC to review water resource activities by federal agencies in the nineteen Western states. back
2 The "Preliminary Settlement Agreement" between the Sierra Pacific Power Company, the Pyramid Lake Indian Tribe, and the U.S. Department of Interior, as submitted to the Chairman of the U.S. Senate Subcommittee on Water and Power of the Committee on Energy and Natural Resources in August of 1990. back
3 Entitled "The Truckee-Carson River Basin Study,"it was prepared for WWPRAC by a contractor, Clearwater Consulting, of Santa Rosa, CA. back
4 See also "Newlands Reclamation Project Water Rights: A Personal Property Issue," Nevada Policy Research Institute, 1994. back
5 Nevada Journal, after several attempts, was unable to reach Bettenberg for comment, eventually a colleague said Mr. Bettenberg was in Europe. back
6 Those OCAPs were under heated appeal in the courts in 1990 when Reids bill, becoming law, awarded the Secretary of Interior a seven-year exemption from any judicial review on that issue. Thus Nevadas senior senator had imposed a seven-year denial of legal redress on his own Fallon constituents. back
7 BLM logs in Las Vegas have a notation made after an October,1994 visit by Reid: "The Senator was very clear that Del Webb was to be a priority to be put on the top of the pile and not have to go to the end of the line." back
8 When project farmers have been sufficiently tenderized by years of OCAP hammering and no legal redress, the Lahontan Valley script calls for them to be approached by overtly public-minded environmental organizations, like The Nature Conservancy (TNC). Later revealed to have been secretly under contract to the DOI, TNC, for example, brokers the sale of farmer homesteads to developers like Del Webb, after which the properties and the accompanying water rights are swapped to the DOI, often in exchange for immensely valuable lands on the outskirts of Las Vegas. back
Steve Miller is a Contributing Editor of Nevada Journal.
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