Water in the West: New Documentary 'Killing the Colorado' Shows That People, Not Nature, Are Responsible for ShortagesWritten by Sarah Tory
In 1922, seven Western states agreed to divvy up the water in the Colorado River, paving the way for giant dams, reservoirs and aqueducts to move and store it.
Over the next century, the arid region, prone to erratic storms and punishing droughts, saw farms and cities grow and grow—with the belief that the water they relied on so heavily was inexhaustible.
But the Colorado River Compact, as the agreement is known, contained a serious flaw: The states overestimated how much water flowed through the river, which begins high in the Rocky Mountains of Colorado, and runs southwest for 1,450 miles, before entering the Gulf of California in Mexico. In nearly a century since then, roughly 40 million people have come to rely on an allocation of water that doesn’t actually exist.
That miscalculation underpinning management of the West’s most-important river is one of the many manmade errors that have contributed to the region’s current water crisis. That crisis and, more specifically, its human origins are the subject of a new documentary, Killing the Colorado, which premiered Aug. 4 on The Discovery Channel. Based on the award-winning series by ProPublica reporter Abrahm Lustgarten, the film examines the Colorado River’s growing inability to deliver the water that farmers, cities and entire ecosystems across the West rely on. While a prolonged long dry spell has exacerbated current shortages throughout the region, the film posits that most of the scarcities were not caused by nature, but by short-sighted policies and poor planning.
That leaves a harder question: If the real problems are manmade, can’t we find a way to fix them?
The film begins in one of the country’s most productive agricultural areas, California’s Imperial Valley, where huge farms blanket what was once a desert. The transformation was made possible by water from the Colorado River, piped 80 miles across the desert through the All-American Canal. But in California, Imperial Valley farmers are coming under increasing scrutiny for using the vast majority of the state’s water—a pattern that repeats throughout the West, where roughly 80 percent of the available water goes to agriculture.
Blaming farmers for using so much water becomes suspect, however, if you’re sitting in New York in the middle of winter, eating an organic kale salad. The greens, as one farmer points out, probably came from the Imperial Valley. For audiences not accustomed to finger-pointing, such examples create an uncomfortable reckoning, as well as an iteration of the film’s central theme: that the water crisis is everyone’s doing.
The film offers plenty of painful moments, nowhere more so than in its discussion of our very own Salton Sea. Created by an accidental breach in an irrigation canal, the sea has been kept full for decades by drainage from Imperial Valley farms. But as farmers find ways to use less water, the Salton Sea is shrinking, exposing dry beds of toxic dust. The result is an impossible dilemma: Conserve water, and worsen the region’s sky-high asthma rates; or keep it full by using the region’s scarcest resource.
Elsewhere in the West, agonizing questions around scarcity play out over big water projects, such as one proposed for southern New Mexico’s Gila River. In early July, the state agency in charge of planning and operating the diversion finally disclosed its plans, setting in motion the environmental review process, which will inform the federal government’s final decision on whether to approve the project. Experts questioned the high cost and long-term viability of the project—and the risk of repeating last century’s mistakes. But in moving the diversion proposal this far, proponents have played on deeply held attitudes about water in the West: Get as much as you can, before someone else does.
That such fears continue to influence decisions about water management today is one of the film’s more pointed arguments. The proposal for the Gila, it notes, is just one of the many new dams and diversions currently planned for the Colorado as states throughout the Upper Basin scramble to claim every last drop they have a right to develop.
As Lustgarten says in the film, “When faced with scarcity, the unfortunate reaction for many is to take a little more.”
If pinpointing the problems associated with the water crisis is challenging, the solutions appear even more so. In recent years, for instance, city water providers have been buying up farmers’ water rights, addressing the imbalance between urban and agricultural water rights. But the water trading also creates a whole new set of problems.
Those costs are evident in towns like Crowley, Colo., a community built around irrigation canals and a once-vibrant agricultural economy. But beginning in the 1970s, farmers sold off most of their water rights to growing cities like Pueblo and Colorado Springs. Fields and orchards turned to weeds, and as one current resident describes, “Crowley became a ghost town.” Today, prisons are the biggest employer in the county. The filmmakers avoid judgment on the issue on water-trading, instead offering a cautionary tale about the massive consequences—largely unforeseen—surrounding those decisions.
Meanwhile, as water’s scarcity drives up its value, Wall Street investors are entering what is now a multi-billion dollar business in water trading. One of those players is Water Asset Management. The $500 million hedge fund has invested in everything from Imperial Valley farms with prime water rights to desert cities like Prescott, Ariz., in need of new water supplies to support its growth. In many ways, it’s a win-win; the hedge fund money is helping farmers and cities find ways to save water and develop, while also securing huge profits for themselves by selling the water saved. The film suggests that markets are going to play an increasingly important role in allocating water in the West, but leaves open the thornier questions of whether, for instance, the growth fueling demand for new water supplies should be revisited, or whether water should be treated solely as a commodity, rather than, say, a basic human right.
If there’s a central lesson the film wants to convey, it’s that there are no easy fixes when it comes to the West’s water crisis. Who, for instance, should bear the cost of using less water? The answer, at least, seems obvious: everyone.
Sarah Tory is a correspondent for High Country News, where this story first appeared.
On the morning of July 23, the city of Los Angeles was covered in a dusting of ash. An apocalyptic haze muted the sun, and the sky was an eerie, unnatural pink. Just a day before, a wildfire had broken out on private land 30 miles northwest, near Santa Clarita. Within 24 hours, the Sand Fire scorched 20,000 acres, and in a week, it burned another 21,000 acres. At least 10,000 people had to evacuate before it was contained by early August.
Every day seems to bring another fire. Today, the Blue Cut fire is ravaging the Cajon Pass in San Bernardino County; as of 4 p.m. today, 6,500 acres have burned, with an unknown number of structures damaged.
The most volatile fire activity in the West this year has occurred in Central and Southern California—from Big Sur to Carmel-by-the-Sea to San Bernardino—causing the closure of the Pacific Coast Highway, the destruction of hundreds of homes, and the death of at least six people. According to experts, these blazes offer a glimpse into the West’s “new normal” wildfire season that has been intensified by climate change in recent years. Warmer temperatures, less snowfall and increased drought mean that fire seasonbegins earlier in Apriland lasts longer, until November or December.
Last winter, California breathed a sigh of relief during El Niño, expecting it to drench the parched landscape after four years of drought. Northern California got more rain and remains relatively wet, but El Niño didn’t deliver enough to prevent fires in the southern part of the state.
“It’s the legacy effect of the long-term drought: these large, volatile, fast-moving wildfires in California,” says Crystal Kolden, fire science professor at the University of Idaho. By the first week of June, firefighters in California had already tackled more than 1,500 fires that burned almost 28,000 acres—twice as many acres burned as in the first half of 2015.
Looking at the West as a whole, this fire season is similar to the last couple of years—longer, hotter and harder to control— except in the Pacific Northwest, where there’s been a near-average wet, cool summer. According to a recent report from the National Interagency Fire Center, that delays the region’s greatest fire risk until later in the season. However, it has been extremely dry and hot in the Great Basin and Rockies, leading to more fire starts. Those areas should return to normal fire risk by September.
The high fire potential in California will continue during the season’s peak and through November, though, perhaps even until the first snowfall.
Typically, when the Pacific Northwest is particularly active with wildfire, the Southwest is less so, and vice versa, Kolden says, due to large-scale climate dynamics. But because of climate change in the last five to 10 years, regional wildfire seasons now often overlap. Fires are also burning a wider range of ecosystems than in the past, Kolden says. The lower-elevation sagebrush steppe is fueling fires just as much as high-elevation ponderosa forests, Southern California’s chaparral, and Idaho’s rangelands—and often, all these ecosystems are experiencing fires at the same time.
“Climate change is starting to take over,” says Kolden, “so there’s a higher probability and incidence of fires all over the West every single year.”
Two of the largest are the Soberanes Fire in California, which has burned over 76,000 acres and is only about 60 percent contained; and the Pioneer Fire near Boise, which has burned more than 76,000 acres and is about half contained. The NIFC considers both these fires its top priority because they’re proving hard to contain and near highly populated areas. As peak fire seasons stretch and overlap, firefighting resources aregetting stretched thinner. The Pioneer Fire, for example, currently has about 1,800 firefighters working on it, while the Soberanes has a record-breaking 3,800, about 1,000 down from the peak.
It’s still unclear what caused the Pioneer Fire, but an illegal campfire ignited the Soberanes blaze, and faulty hot tub wiring caused the Sand Fire. A growing percentage of wildfires are started by humans, says Scott Stephens, professor of fire science at UC Berkeley, particularly in Southern California, where the population in fire-danger areas is increasing exponentially. That’s part of the reason that, even though that area’s fires aren’t necessarily more severe than usual, this year’s have resulted in morehomes lost and a high fatality rate in California.
By this point, Stephens says, it’s clear that Western communities and federal agencies need to be more proactive at planning for fire and drought when building homes and structures and managing land. According to his research, we should be restoring forests by thinning and using prescribed burns at five to 10 times the rate we are now.
“If we don’t start to change the trajectory of forest conditions in the Western U.S., we’re literally going to be running out of options,” he says. “The big fires will continue to come.”
This piece originally appeared at High Country News.
Desert Hot Springs’ community radio station is off the air—but the family that runs the station still has big plans for what is known as KDHS.
The Independent did a piece on KDHS back in March, when the low-frequency station was on the air at 98.9 FM. The story, however, raised the eyebrows of at least one reader, who noted that those call letters were licensed for a station in Alaska. Around that same time, station owner Michelle Ann Rizzio—who a while back took over management from her father, who founded the station—said she learned that something was amiss.
“Essentially, I went to check on our (FCC registration number) and validate it, since the story was published. I had my questions about the license, because it didn’t look the way I had seen licenses at stations I worked at in the past,” Rizzio said. “I had brought it up to my dad, and he had said he was sure it was OK—but one day, I went by intuition and looked up the FRN. I did, and that number was registered to another person in Texas.
“We knew of one other KDHS in Alaska, and we had been in contact with each other through the years. Then I found out there were no call letters related to our station.”
She said she discovered the license that had been sold to her father was fraudulent.
“I looked under the person who sold the license to my father, and under his name, and I found a myriad of (low-power FM) licenses, none of them registered under KDHS,” she said. “My dad paid him something like $250 to have this FCC license. You usually don’t have to pay for it; you just apply, apply for your antenna, and pay for everything yourself once the FCC approves you. So it’s not this pay-to-get-a-license thing, especially for low-power FM stations. They’re usually given for educational reasons, church reasons and community reasons.”
Rizzio said she spent a whole day on the phone talking with people at the Federal Communications Commission in an effort to clear things up.
“I was like, ‘Can you guys please help me? I can’t seem to find my license anywhere,’” she said. “They looked through everything and called many different offices. There was this one lady I called back throughout the day after she gave me her extension, and she said, ‘I don’t understand this. Why would someone charge your dad? This isn’t right, and something is wrong here.’ She asked how long we were operating for, and I said, ‘A long time.’ She said, ‘And you don’t have a license?’ I said, ‘I do, but obviously… .’ She said, ‘My recommendation would be to go off the air right now.’ They were very kind, and they did say to use precautions moving forward.”
Rizzio said she received some criticism following the publication of the article in the Independent.
“I did get some backlash from the community, and there were a couple of radio broadcasters who caught on to what was going on around the same time I had caught on to everything,” she said. “They started calling me a ‘poseur with a keyboard’ and messaging me really nasty things on our Facebook when I was in the process of rebranding.”
As for that rebranding: Rizzio is still using the KDHS name to promote events such as local music shows and a record swap meet, and to have a presence on social media.
“I decided to pull the string, go dark for a while, and focus on building the Facebook and doing a lot of footwork following up with getting a public production space in Desert Hot Springs,” she said. “I’ve gotten a lead for a space on Pierson Drive, and I’m putting in a proposal into the city. As soon as that proposal gets approved, then I get to propose my full business plan and what I want to do. The city is willing to pay for me to do it and (allow me to) use the space rent-free. I’ll be able to get the volunteers from KDHS to work in the space, and might even be able to pay two people to run the space.
“I shifted from the community-radio concept to creating a local music stream, which will be on 24/7, and it will be all music from the Coachella Valley. I’m waiting until we get 24 hours of music, given I only have five hours right now, and I don’t want it to be the same annoying five-hour stream.”
Rizzio said she also wants to help people in the community learn valuable skills.
“I’m also transitioning that into a company called Knowledge Desert Hot Springs,” she explained. “It will be a knowledge hub where you’ll walk in and be greeted by one of our people, and they’ll help people make a business plan, reach out to venture capitalists, and get them started. We’ll be teaching résumé building, business-model and business-plan building, and the entire Adobe Creative Suite and Illustrator. I want to offer these to anyone who comes in … because I have all the education and resources to teach them how to use it.”
A Culture of Sexual Harassment: Congress Members, Activists Call for the Ousting of the Park Service DirectorWritten by Lyndsey Gilpin
On June 21, a new petition surfaced on the White House’s website. In large bold letters, it reads: “Fire National Park Service Director Jon Jarvis. We deserve a director who will uphold the agency's integrity.”
During its centennial year, the agency has fallen under increased scrutiny for not taking swifter action to address a culture of sexual harassment and employee misconduct. The petition was started by a group of recreation and environmental activists in the San Francisco Bay Area and launched a week after members of Congress on the House Committee on Oversight and Congressional Reform grilled Jarvis for failing to take enough steps to stop sexual harassment and hostile working conditions that female employees faced in the Grand Canyon, Florida’s Canaveral National Seashore and other parks.
Last month, the Department of Interior’s Office of Inspector General released a report documenting a pattern of harassment at Canaveral, such as unwanted sexual advances and inappropriate comments by a supervisor. As the Park Service’s second sexual harassment investigation in six months, it prompted the House Oversight and Congressional Reform Committee hearing on June 14. The committee condemned Jarvis for not firing perpetrators and for not following through with disciplinary actions the agency outlined in response to the year’s first investigation of sexual harassment, which was released in January and focused on the Grand Canyon.
“Discipline and punishment is one thing; hand-slapping is another,” Rep. Jody Hice, R-Ga., said during the hearing. “I would hardly call what’s taking place discipline.”
Jarvis said he had formed a committee of high-level executives to handle the issue. He dismissed the idea that the agency wasn’t taking women’s reports seriously. He also said that firing a federal worker is nearly impossible, which is part of the problem.
“I don’t believe it’s fear; I believe (victims) don’t think action will be taken,” Jarvis said in the hearing. “I appreciate the reports from the Office of Inspector General, and (with) the actions we are going to take and are taking, we are going to see more reporting.”
After the January Grand Canyon report, the Park Service vowed to run a survey to determine how widespread the sexual-harassment problem is. According to Jeff Olson, the agency’s public affairs officer, they are in the process of finding companies to run the survey, and it should be out to employees by the end of September.
Matt Elliott, assistant inspector general for investigations for the Office of Inspector General, says that after these two high-profile investigations, the office will continue to keep a close eye on these issue in all of its agencies, and will be more mindful of looking out for patterns.
Responsibility for disciplinary actions following the Grand Canyon investigation falls to the intermountain regional director Sue Masica, who reports, like all other regional directors, to Deputy Director Peggy O’Dell. But O’Dell,who was also on a task force in 1999 to improve conditions for women in law enforcement, recently announced she will retire at the end of July after 37 years in the agency, Olson confirmed. (O’Dell could not be reached for comment.)
After the hearing, Hice and Rep. Jason Chaffetz, R-Utah, called for Jarvis’ ousting.
“My role in the committee is to alleviate some of the frustrations Americans experience by getting to the root of the problem and removing waste, fraud and abuse inside federal agencies,” Hice said in an email. “Oftentimes, it starts with the head of the agency.”
As of July 12, the petition had less than 900 signatures. That means it won’t likely come near the 100,000 needed for President Barack Obama to respond—but that’s not the point, says the petition’s creator, David Emanuel, of Save Our Recreation, a Bay Area advocacy group. “It’s a signal to Congress that there is a grassroots effort. People are aware and angry.”
The uproar regarding Jarvis is the second time this year Congress has stepped in on the issue of sexual harassment in the Park Service this year. In April, Rep. Ruben Gallego, D-Ariz., and others called for reform in the agency, though not focusing on Jarvis. “What I want to see is institutional and cultural change within the National Park Service,” Gallego said recently. “If we stop seeing forward momentum, we’d have to revisit this.” He also added that he is drafting an amendment to the Department of Interior appropriations bill to direct the secretary not to rehire employees who were disciplined for harassment.
As the Obama administration nears the end of its term, many former and current park employees have voiced concern that the efforts to change the culture of gender bias and sexual harassment in the agency will fade away, as they did in the early 2000s during the transition to the Bush administration. But Gallego said that’s not going to happen.
“I’m 36, and I’m going to be in Congress for 20 years, and Grand Canyon is in my state,” he said. “So the issue is not going to be dropped.”
In the last six months, High Country News has received more than 40 letters from women and men working in federal parks, forests and lands, explaining personal experiences of sexual harassment, gender bias, assault and retaliation in the workplace.If you are a federal public land employee and would like to report your own experience with sexual harassment, please fill out High Country News’ confidential tip form.
Elizabeth Shogren contributed to this article, which originally appeared in High Country News.
In the midst of the raucous and polarized presidential election, a quieter story has been at play as well: the growing political clout of Latino voters.
Nationwide, about 12 percent of the country’s eligible voting population is Hispanic—and the West is home to nearly 40 percent of those voters, far surpassing other regions. This November, Hispanic voters are projected to turn out in greater numbers than they did in 2012, with a nearly 10 percent increase forecast by the the National Association of Latino Elected and Appointed Officials Educational Fund.
At the same time, the Latino voting bloc is in transition: Latino populations are getting younger, larger and more politically engaged. In the process, they promise to change Western presidential politics.
Now, not only are there more Hispanic younger voters, but an increasing percentage of them are born in the United States. That naturalized population is beginning to dominate the Latino population of voters. (Noncitizens can’t vote.) Young Hispanics make up a larger proportion of the voting block than in other groups: 44 percent of Hispanic voters are between the ages of 18 and 35 this year, compared to 27 percent among white voters.
“Every election cycle, there is a tsunami of young Latino voters that is reaching voting age,” says Joseph Garcia, director of the Morrison Institute Latino Public Policy Center at Arizona State University. “This very well could be the last year that you could even think you could win an election without the Latino vote.”
While Latino influence on the outcome of elections is increasing, voter turnout among Hispanic voters remains generally low. In 2012, only 48 percent of Latinos who could vote actually did—compared to 64 percent of eligible white voters that made it out to polling places in the general election. But as the Latino population grows, the rate of voter turnout is increasing, too.
While participation is on the rise, significant barriers still prevent some from voting; historic trends take time to reverse. “More Latinos are eligible to vote, but you still face this millennial challenge: Young people, regardless of race, by and large, don’t vote,” Garcia says. Also, “If your parents don’t vote, you’re less likely to.” Often, Hispanic youth and their families work long hours or hold multiple jobs, which makes it harder to get to polling places on Election Day. Garcia says that was the case for his late father, a roofer from New Mexico, whose long commute and working hours made voting in person unrealistic. “The voting hours (6 a.m. until 7 p.m.) weren’t set up to make voting easy for him,” he says.
Immigration has been the defining issue for many Latino voters, 66 perecent of whom say they want to see comprehensive immigration reform. That issue has influenced a majority of Hispanic voters’ political leanings. While many Hispanic citizens hold more conservative values on social issues like gay marriage and abortion, the Republican Party’s views on immigration and environmental protection have led many voters to lean Democratic in presidential elections, says Jens Manuel Krogstad, an expert on immigration and social trends at the Pew Research Center. In 2012, more than 70 percent of the Latino community voted for President Barack Obama, and Latino voters are still expected to lean left come November. “(Republicans) are being interpreted by a lot of potential voters as anti-Latino—and that could impact the ballot this election,” Garcia says.
As more young voters come of age, the left-leaning tendency could strengthen. The younger and increasingly engaged Hispanic electorate in the West could be more of a deciding factor in upcoming elections, particularly in battlegrounds states like Colorado, Nevada and increasingly competitive Arizona.
In Colorado, a competitive state in the presidential election, a greater proportion of the Hispanic population has been born in the country. This is a recent shift from older generations where a greater proportion migrated to the United States. This November, more than 277,500 Latinos are expected to cast ballots—a more than 7 percent increase, according to projections by the National Association of Latino Elected and Appointed Officials.
The growing Latino population in Arizona could prove disruptive to the state’s notoriously conservative politics. According to the Arizona State University Morrison Institute and the Pew Research Center, if Latino voter turnout continues to rise at its current rate, Arizona would become a battleground state by 2030. This November, more than 433,000 Latinos are expected to cast ballots—an 8 percent increase from 2012, according to projections by the NALEO.
In Nevada, Hispanic groups are becoming more vocal on the immigration debate and about their opposition to Trump, whose campaign has taken an anti-immigration stance. But their influence is complicated by the fact that the state has the largest percentage of undocumented immigrants in the country (nearly 8 percent; California comes second with just more than 6 percent), according to the Pew Research Center. Organizations including NALEO and United We Dream, a group that represents immigrant youth, have begun to urge their peers to register and vote. Perhaps the most vocal group is the “dreamers,” a growing coalition of young, undocumented Latinos who’ve lived most of their lives in the U.S. While they can’t vote because they are not recognized as legal citizens, a group of them have started to go door-to-door to urge Hispanics across the West to register. “There is a force to gather the troops, so if Trump is the GOP nominee come November, they will be ready to vote against him,” Garcia says. In Nevada, more than 194,000 Latinos are expected to cast ballots in November, a more than 7 percent increase in turnout.
Until results from November’s presidential election are in, it’s hard to know for sure when the potential political clout of the Hispanic demographic could be realized. “Every election cycle, there is a new wave of Latino voters that mature into voting age, and everyone is watching that group more and more closely,” Garcia says. “But the monumental political shifts haven’t quite played out.”
Paige Blankenbuehler is an editorial fellow at High Country News, where this story originally appeared.
As the 2016 edition of the BNP Paribas Open got under way last week at the Indian Wells Tennis Garden, two topics dominated the conversations of players, the media and fans alike: Maria Sharapova’s recent alleged doping infraction (leading to her absence) and the return of Venus Williams after a 15 year boycott of the tournament where she enjoyed some of her earliest career triumphs.
Two-time defending men’s champion Novak Djokovic told the media he was sympathetic regarding Sharapova’s situation. “I know that she has always been very responsible and aware toward herself, toward the sport—very disciplined, very … hard working, hard-working ethics, and (she) loves what she does.
“I thought she was very courageous, and it was very human, brave of her, to go out and take the responsibility and say what has happened. She did admit that she made a mistake with her team. But certainly if there was a mistake, and if she was caught to be positive on doping for a certain substance, then there should be certain kind of consequences for that.”
Consequences seemed to be on Venus Williams’ mind as she stepped back into the Tennis Garden surroundings.
“I think when (Serena) came back, it wasn't an easy decision. You never know what was going to happen,” Venus said regarding her sister’s return to Indian Wells last year. “But she had so much courage to do so. It made it so easy for me. I felt like when I came out here, I was able to focus on the tennis and not on, ‘Oh, my gosh, what’s gonna happen?’”
What did happen when she finally set foot on the Stadium 1 show court for her Friday, March 11, match? A standing ovation that lasted several minutes.
“Yeah, I did get emotional,” Venus Williams said. “When we were doing the coin toss, I got a little watery eyed. Your opponent—you don't want to give them any more encouragement. It was wonderful. I think I smiled the whole warm-up. I had to get my game face on. It was tough to do.”
Shortly after the start of her first match, against 89th-ranked Kurumi Nara of Japan, the wind kicked up, and a burst of rain rolled across the Tennis Gardens grounds, blowing objects around. The storm chased players off all the courts—and it’s possible the disruption contributed to Venus’ early exit from this year’s tournament: She would go on to be upset, 6-4, 6-3.
“The crowd rooted me on because it was a tough day and tough conditions and brutal out there,” a positive Venus Williams remarked in her post-match media conference. “It was wonderful to feel the love. You know, I would love to come on back.”
As the winds dissipate and the second week of play gets under way, all five of the top-seeded men are still alive (including No. 1 Djokovic, No. 2 Andy Murray, No. 3 Stan Wawrinka, No. 4 Rafael Nadal and No. 5 Kei Nishikori), while just three of the top 5 women (No. 1 Serena Williams, No. 3 Agnieszka Radwanska and No. 5/defending champ Simona Halep) are moving ahead.
- Andy Murray Andy Murray
- Agnieszka Radwańska Agnieszka Radwańska
- Christina McHale Christina McHale
- Maria Sharapova Maria Sharapova
- Novak Djokovic Novak Djokovic
- Serena Williams Serena Williams
- Serena Williams Yells Serena Williams Yells
- Venus Williams Venus Williams
- Venus Williams Venus Williams
- Stormy Weather Stormy Weather
On a hot summer afternoon, California farmer Chris Hurd barrels down a country road through the Central Valley city of Firebaugh, his dog Frank riding in the truck bed. He lurches to a stop in front of Oro Loma Elementary School, which was built in the 1950s to accommodate an influx of farmers’ and farmworkers’ children.
“All three of my sons went here,” Hurd says, as we walk through overgrown weeds toward the building, shuttered in 2010. “I was on the school board; the grass was green; kids were running around. Now it’s a pile of rubble.”
Agricultural land stretches out in every direction. Most of the town’s 8,300 residents are involved in growing or packing produce. The city is on the west side of the San Joaquin River, an area hit particularly hard by a historic drought, now in its fifth year. Wells have run dry, and farm-related jobs are running out.
Many other places in the eight counties comprising the San Joaquin Valley have suffered similar fates. These areas were disadvantaged to begin with, rural and isolated, lacking infrastructure, public transportation and safe housing. Persistent drought has compounded the struggles of some of the poorest communities in the nation. As of late January, 64 percent of the state was experiencing extreme drought—down from 78 percent that time last year. But even a stellar El Niño year won’t undo all the damage.
Hurd, 65, who earned a degree in mechanized agriculture from California Polytechnic San Luis Obispo in 1972, has farmed for the past 33 years. These days, he tends 1,500 acres and serves on the board of a local water district. Right now, he’s debating whether to rip out 80 acres of 20-year-old almond trees whose yields don’t justify the cost of the water. Three years ago, his annual water bill was $500,000. Now, he says, it’s $2.5 million; the price per acre-foot has increased sharply since the drought. Farmers like Hurd, who have junior water rights, are the first to see their allocations from the state’s two major water projects curtailed during shortages, forcing them to invest in new wells to pump groundwater or buy water on the market. In 2014, farmers with junior water rights faced an unprecedented zero allocation from the U.S. Bureau of Reclamation’s Central Valley Project. That happened again last year. In late February, the federal project will announce its water supply outlook for 2016. The State Water Project has also dramatically reduced its deliveries over the last two years.
In John Steinbeck’s classic novel,The Grapes of Wrath, farmers escape Oklahoma’s Dust Bowl by heading west to California in search of jobs and fertile land. Hurd says his friends have begun joking, grimly, about the reverse scenario—California isn’t working out, so why not pick up and move back to Oklahoma?
“Some are leaving; some are staying to fight; a lot of them are in flux,” he says.
Yet while grit has something to do with who stays and who goes, it ultimately comes down to two main factors: water and money. The survivors will likely need senior water rights and money to spend on planting high-value orchards or implementing expensive technology.
Economically, California remains the largest agricultural producer in the United States. But El Niño’s precipitation not withstanding, the prolonged drought is putting some farmers under heavy duress, and no one is sure how far California’s Eden will sink.
California, like much of the United States, was losing farmers long before the current drought began. The number of principal operators shrank 4 percent from about 81,000 in 2007 to 78,000 in 2012, according to the most recent U.S. Census of Agriculture. The average age of California farmers skews slightly older than the rest of the nation, at 60 years old, and the state has experienced a decline in the number of farms, reflecting a national trend.
Yet the market value of its output has grown to roughly $54 billion annually. While a mere drop in the bucket of California’s $2.2 trillion economy, this sector remains among the most productive in the world, thanks to the state’s Mediterranean climate and fertile soil. And the Central Valley—a 450-mile-long stretch of flat land through the middle of the state that encompasses parts of 19 counties and multiple watersheds—produces nearly half of the nation’s vegetables, fruit and nuts. California has accomplished this even though most of its precipitation happens in the north, while most of its agriculture occurs in the south.
However, the state’s major reservoirs remain below normal for February, although their levels have dramatically improved since last December. Historically, a strong El Niño means most precipitation occurs in January, February and March. Too much rain at once won’t help farmers and could cause flooding, and it will do little to replenish the state’s drained aquifers. There is a positive note, however: The California Department of Water Resources’ semi-annual snow survey this winter, on Feb. 2, measured snowpack at 130 percent of normal in one location. Statewide, the snowpack is at 114 percent of average, which is the highest it’s been since 2011. That snow will eventually melt into streams and reservoirs, providing water for farms and cities. In normal years, the snowpack supplies about 30 percent of the state’s water needs.
In July 2014, a report by researchers at the University of California at Davis made headlines with alarming news about the drought’s impacts. Researchers projected it would cause $1.5 billion in economic losses to agriculture—factoring in crop revenue, dairy and livestock value, and the cost of additional groundwater pumping—and the loss of 7,500 jobs directly related to farm production by the year’s end. In their latest report, the Davis researchers estimate $1.84 billion in economic losses to agriculture and 10,100 fewer agriculture jobs in 2015.
Yet for all that, California agriculture has demonstrated impressive resilience. Researchers at the Pacific Institute, in Oakland, analyzed drought’s impacts on the three major crop categories of field crops, vegetables and melons, and fruits and nuts, and found that California agriculture not only survived; it flourished overall, achieving both record-high crop revenue and record-high employment.
Crop revenue has increased steadily over the past 15 years, and 2013 was the highest ever at $34 billion; 2014 was the second highest (although it dipped slightly). Revenue has increased even as land was fallowed at high rates. A follow-up report, incorporating livestock, dairy and nursery data, found the same patterns of high levels of productivity and profitability through this drought.
Meanwhile, agricultural employment has grown every year since 2010, employing a record-setting 417,000 people in 2014. But employment in the San Joaquin Valley waned.
“It is important to note that statewide and even regional estimates can hide local variability,” the report’s authors wrote. “State agricultural revenue and employment remain high, but there are undoubtedly winners and losers.”
Excessive groundwater pumping is a major issue.
“In my mind, there is an intergenerational equity issue here,” says Heather Cooley of the Pacific Institute. Future generations’ ability to meet their farming needs has been compromised—groundwater will sink to greater depths; water quality will deteriorate; and wells could run dry. Infrastructure such as conveyance canals, roads, bridges and buildings will suffer.
“Our overdependence on groundwater is tenuous and not sustainable by any stretch of the imagination. (Farmers) recognize that,” says Scott Stoddard, a row-crop farm adviser in the Central Valley for the University of California Cooperative Extension. Underground aquifers took thousands of years to fill up and can’t be replenished at the current rates of withdrawal.
Another resiliency factor relates to improved water efficiency and crop-shifting. “Together, these two are enabling farmers to get the most out of the water that they have,” Cooley says. Farmers aren’t flooding fields as much and are using scientific data and technology to better pinpoint when, where and how much to irrigate. They are shifting away from growing cotton and corn, concentrating water instead on higher-value crops, including almonds, pistachios, wine grapes, tomatoes and fruit. But permanent crops such as trees and orchards can’t be easily fallowed, and that reduces the flexibility to respond to future water shortages. Short-term water transfers between willing sellers and buyers provide a third major reason for resiliency. But regulators lack a complete understanding of how much water is actually changing hands, because informal farmer-to-farmer sales—the kind that happen over coffee at the local diner—aren’t tracked.
When considering how California agriculture has withstood the drought—increased groundwater pumping, water transfers, a shift from field crops to higher-value nuts and fruits, better irrigation techniques, fallowing land—many of the same strategies used in previous, albeit more modest, water shortages emerge. But, Stoddard wonders: “What happens if what we’re seeing is not a drought, but the norm?”
Nonstop pressures threaten California agriculture: encroaching development; the high cost of farm and ranchland, which prices out new farmers and ranchers; onerous regulations; declining interest in the profession; water shortages; and climate change. Greater climate variability may be the state’s new reality, but that doesn’t mean the end is near.
“I think California will remain a great place to grow food and other agricultural products,” Cooley says. “One of the reasons we’ve seen high levels of agriculture development in the state is because we tend to have a dry summer, (and) when water is available, it allows farmers to manipulate the water and use it with precision.”
Another reason is that for decades, the Central Valley’s Westlands Water District has managed to pull a lot of water for farmers near Fresno. But even the powerful water utility has struggled under the current drought and state water restrictions. It remains to be seen whether it can politically pull more water as the drought continues. In the meantime, farmers are handling the crisis the way they always have: through resiliency.
Daniel Sumner, an agricultural economist at UC Davis and co-author of the economic-projection reports, says this isn’t the first time farmers have switched up crops, nor will it be the last. California used to be among the biggest wheat-producing states in the United States, and that’s no longer the case.
“California agriculture adapts continuously to markets and other shifts,” Sumner says. “The gradual move from field crops to more tree and vine crops and vegetables has been ongoing for decades. This drought has caused some temporary shifts, such as leaving rice land idle, and perhaps accelerated the long-term trends.”
Adaptation is nothing new to agriculture, but that offers little consolation to the individual farmers tasked with growing much of the nation’s food. Sure, the sector may be doing all right, but that doesn’t mean some farmers, farmworkers and their families aren’t suffering. This is especially true of farmers with junior water rights, who have had to shell out lots of money to access water, and in areas of extensive fallowing, which means fewer jobs for farmworkers. Sixty-five percent of California’s farms earn less than $50,000 annually. These farms are small, and likely more vulnerable to threats such as drought. Only 8 percent of farms fall into the highest economic class, making more than $1 million.
Increasingly, adult children find the prospect of an air-conditioned office job in a city more appealing than taking over such a harsh family business. Drought’s indirect impacts will compound agriculture’s other pressures, but won’t be realized for several years, if not decades. “It’s a very strong possibility in the future that we’re looking at an exodus of more and more people, if this lack-of-water situation continues,” Stoddard says. “We are using more water than the system allows, and something has to give.”
What will “give,” as Stoddard says, are farmers with exorbitant water bills, or those who just can’t make their operations work anymore.
If California’s agriculture is going to thrive, policymakers need to ensure better management of groundwater resources and stop underpricing water. A comprehensive statewide agriculture plan could help. So will continued improvements in agricultural practices: conservation; transitioning to drip irrigation; using cover crops and no-tillage for better soil health and reduced water usage; employing GPS and possibly drones to pinpoint inefficiencies in irrigation; and funding plant science where genetic engineering could help crops withstand drought.
Farmers with the most resources will have the best chance of surviving. Cannon Michael is a sixth-generation farmer whose ancestor Henry Miller, of Miller and Lux Co., once owned the area that’s now the town of Firebaugh. Michael inherited senior water rights, which gives him a safety net in this current drought. His business, Bowles Farming Co., brings in an average of $25 million in annual gross revenue, but he still worries about the future.
“Our good years are never going to be as good, and our bad years have the potential to be catastrophic,” he says.
His response has been to adapt. Historically, Bowles has grown almonds, pistachios, wheat, corn, alfalfa, cotton, tomatoes, onions and melons on 10,500 irrigated acres—but the drought pushed Michael to fallow one-fourth of his ground and stop irrigating alfalfa. He reduced labor needs, installed drip irrigation and transitioned to reduced-tillage to save money on gasoline. This summer, he made a multimillion dollar investment in the installation of two solar arrays that will generate 1 megawatt of power, enough to supply electricity for nearly the whole operation, including the office, shop, houses (his and the workers) and all drip-irrigation systems. Michael is also diversifying with a new 5,000-acre farm in Uruguay, where he will grow wheat, sorghum, soybeans and corn and raise 1,000 cattle.
South America may beckon as a new agrarian frontier, but Michael, like many of his peers, refuses to give up on California yet. A few years ago, he bought a struggling young almond orchard, excited by its status as a high-value crop. He says there’s not much to be excited about with farming nowadays, but raising the almonds was something that brought him hope.
On a summer afternoon in 2015, before the orchard’s inaugural harvest, Michael plucks an almond off the branch, picks out the seed and takes a bite. Fresh from a tree, almonds taste different: wetter with a hint of vanilla. “Can you be proud of trees?” he asks, closely admiring one of the leaves. “I’m proud of these trees.”
Reporting for this story was supported by an award from the Institute for Journalism and Natural Resources. This piece originally appeared in High Country News.
Join us for Impromptu Sky Watches, or Neighborhood Mini-Star Parties, to be held in a neighborhood, park or at a school by one or more members of the Astronomical Society of the Desert!
The purpose is to observe a fairly unusual but eye-pleasing astronomical event we’d like to share with others. The event might be a very thin crescent moon in morning or evening twilight, or it could be a rare gathering of celestial bodies. A close pair of planets, or a planet and a star, or the moon and a planet or bright star, may trigger our desire to share the experience of viewing the event. Sometimes, a sky watch might be arranged to see a very favorable pass of the International Space Station across our local skies, or just to enjoy a moonrise over our scenic mountain horizon.
If you’d like to join us for one or more of these Impromptu Sky Watches, or if you want to observe the event on your own, visit astrorx.org for more information. Of course, the Sky Watch would be cancelled if clouds interfere. We’ll often wait until just a few days before the event to make an announcement, to obtain a more accurate forecast of whether the sky is likely to be clear.
The locations of Sky Watches will be:
1: In Palm Springs, on the sidewalk along the east side of Farrell Drive, within 300 feet north of the golf-cart crossing just north of Mesquite Avenue. We’ll be overlooking the golf course on both sides of Farrell Drive.
2: In Palm Springs, on the pedestrian bridge crossing over Tahquitz Creek, at Camino Real between north and south Riverside drives, three blocks north of Cahuilla Elementary School.
3: In Desert Hot Springs. The exact location has not yet determined, and will be announced at astrorx.org. Desert Hot Springs, and other places far east in the Coachella Valley where high mountains don’t obstruct the view of the western horizon, are better places for viewing phenomena low in the west, such as a young crescent moon or evening appearances of the planet Mercury.
Moonrise Watches: Join us, if the sky is clear, by arriving at location No. 2 in time for moonrise at the following dates and times:
Monday, Feb. 22 at 5:51 p.m. (just past full)
Tuesday, Feb. 23 at 6:46 p.m.
Wednesday, Feb. 24 at 7:40 p.m.
Old moon watch, on the last two mornings to see the thin old crescent moon in this lunar cycle: On Sunday, March 6, and Monday March 7, during 5:10-5:40 a.m., we’ll be at site No. 2 to watch for the rising of Venus and the crescent moon. On Saturday, Venus will be 10-11 degrees to the lower left of the moon. On Sunday, look for Venus 4 degrees to the right of the old moon, just over 1.5 days before new. This is the last easy chance to view the moon and Venus close together during Venus’ current morning appearance, which began late in August 2015.
Young moon watch, on the first evening to see the thin young moon of the new lunar cycle: On Wednesday, March 9, arrive to site No. 3 at 6:10 p.m. to catch the young crescent moon only 8 degrees up, just south of due west, while Jupiter, almost in the opposite direction in the sky from the sun, is 7 degrees up in east. The moon will be just more than 24 hours old.
Moon near two star clusters in Taurus: On Sunday, March 13, join us at site No. 2 at 7:45 p.m. to enjoy views of the Pleiades and Hyades star clusters, and the star Aldebaran, eye of Taurus, the Bull, near the fat crescent moon.
Moon near Jupiter: On Monday, March 21, sunset occurs at 6:59 p.m. On your own, using binoculars, can you spot Jupiter to the moon’s upper left before then? You’re welcome to join us at site No. 2 at 8 p.m. for views of this pairing of Moon and our solar system’s largest planet, and of stars of winter and early spring.
Moonrise watches: Join us, if the sky is clear, by arriving at site No. 2 in time for moonrise at the following dates and times:
Wednesday, March 23, at 7:26 p.m. (just past full)
Thursday, March 24, at 8:19 p.m.
Friday, March 25, at 9:12 p.m.
Young crescent moon and Mercury: Join us on Friday, Apr. 8 at site No. 3 by 7:45 p.m. As the sky darkens, we’ll enjoy a wonderful view of a young crescent moon an easy 39 hours old, with earthshine on its non-sunlit side, and Mercury shining within 9 degrees to its lower right. Jupiter will gleam well up in the east-southeast.
Moon and Aldebaran: For those who’d like to try to witness this daytime event on their own with a telescope, watch Aldebaran get covered by the dark side of the moon on Sunday afternoon, April 10, at 2:24 p.m., and reappear at the moon’s sunlit edge at 3:46 p.m. If you’d like to join us at site No. 2 at 8:15 p.m., we’ll check how far the moon has crept away from the star, and we’ll tour the April evening sky.
Robert C. Victor was a staff astronomer at Abrams Planetarium at Michigan State University. He is now retired and enjoys providing skywatching opportunities for school children in and around Palm Springs.
A Coastal Coup? Environmentalists Worry After the California Coastal Commission Fires Its Executive DirectorWritten by Lyndsey Gilpin
When the California Coastal Commission fired its executive director, Charles Lester, late on Wednesday, Feb. 10, most members of the audience in the community center in Morro Bay were left distraught.
For seven hours, people from across California had taken the podium to declare their support for Lester. There were representatives from indigenous communities and organizations for underserved Hispanic populations in Los Angeles, former commissioners, and at least one resort executive. Almost 1,000 people gathered, nearly all of them in favor of Lester. But in a vote of 7-5, commissioners fired Lester—and they did so without offering any real explanation to the public.
Many fear Lester’s firing could mean increased pressure from developers, closed-off beaches and environmental damage to a quintessential Western landmark—one that runs from the surf breaks of San Diego to the wild cliffs of Big Sur and beyond.
Since the California Coastal Commission was established about 45 years ago, it has fiercely guarded 1,100 miles of pristine shoreline from the Oregon border to San Diego. It sets a high standard for environmental law, ensuring nearly all beaches along Highway 1 remain public and accessible, and that coastal development is shaped to protect endangered species and habitats.
Climate change has made this mission more critical than ever. In the last century, sea levels off California’s coast have risen seven inches, shrinking the coastline. In 2030, the water line will be five inches higher than it was a decade ago, and by 2100, it could rise up to three feet in some regions. These changes could mean less public access to beaches, a vital outdoors resource for California residents. Rising sea levels also mean that about $36.5 billion in property and 145,000 coastal residents are at risk.
In other words, the stakes of the hearing were much higher than one man’s job. Depending on the priorities of the commissioners, Lester said at the hearing, “Many of our public beaches could be lost, squeezed between the rising seas and shoreline development.”
Disagreements between coastal commissioners about development projects are nothing new. Twenty years ago, commissioners tried to oust the politically savvy, ardent environmentalist Peter Douglas, who was executive director for more than two decades. He survived a public hearing in 1996, plus at least one more attempt on his career.
Douglas hand-picked Lester to succeed him, and the commission unanimously approved the new director in 2011. Lester is more reserved and hasn’t appeared publicly often, which, several former commissioners said, may be part of the reason he was targeted. They claimed the commission staff lacked enough diversity, which Lester addressed and committed to improving before and during the hearing. They also complained of his weak managerial skills, such as not communicating well with commissioners. Lester told the Los Angeles Times after the hearing that most of these issues could be resolved through better communication.
Critics of the firing say that the reasons the commissioners provided were just a way to hide their true motivation: Lester wasn’t industry-friendly enough and too slow in approving development permits.
When he was notified in January that the commission was moving to fire him, Lester chose to hold a public hearing to push back, instead of simply stepping down. In the weeks that preceded the hearing, 93 NGOs signed a letter of support; 35 former commissioners spoke out in opposition to a firing; 10 congressional delegates warned Gov. Jerry Brown that losing Lester would threaten the nonpartisan nature of the commission; and 153 commission staff members signed a letter of support. About 14,000 comments, most in support of Lester, were sent to the commission.
Wednesday’s hearing, which lasted 12 hours, provided a unique opportunity for people to voice larger concerns about corporate interests infiltrating the commission and threatening access to public spaces—an issue becoming increasingly pressing in the age of climate change.
“The real concern isn’t whether Charles Lester is or isn’t the executive director,” says Mel Nutter, a pioneering member of the commission who served from 1977 to 1985. “The concern is what this may mean for the continued integrity of the California coastal program.”
After California’s population exploded in the 1960s, a voter initiative established the commission, in 1972, to regulate rampant development along the coast and protect it for future generations. The Coastal Act of 1976 extended the commission’s authority. Twelve commissioners review any major proposed action on the coastline, including development, wetlands restoration, energy projects and wastewater treatment. Four commissioners are appointed by the governor, four by the speaker of the state assembly, and four by the California Senate Rules Committee. All appointments are strictly political, and there are no criteria commissioners have to meet to be chosen, Nutter said.
Since the 1980s, funding for the commission has declined, but the agency has managed to mostly avoid regulatory capture, or lobbying efforts from special interests. Lester described the commission’s work as a “social justice program.” One of its key commitments is ensuring land access for low-income and minority communities by preventing mansions from blocking beach access and keeping affordable lodging along the coast. During his tenure, Lester also laid groundwork for coastal towns to cope with climate change, including securing $5 million for climate adaptation planning and sea level rise guidance for local governments.
Critics of the ousting have said that Commissioner Wendy Mitchell, appointed by former Gov. Arnold Schwarzenegger and retained by Brown, led the push to get Lester fired. They pointed to Mitchell’s close relationship with corporate interests: Her political consulting firm has corporate clients, including PG&E and Cadiz, a renewable-resource-development company.
Ironically, in addition to being an advocate for climate change adaptation, Lester has been more development-friendly than most previous directors; under his leadership, the commission approved 98 percent of permit applications over the last five years.
During the hearing, several commissioners blamed the media and environmental organizations for misleading the public about their motives. “Some of you now are convinced that we are behind a sinister plot to betray everything we’ve sworn to protect,” Commissioner Mark Vargas said at the hearing. “This is not a decision we come to rashly or suddenly, but after years of review with the executive director.”
Senior Deputy Director Jack Ainsworth will lead the commission until it finds an interim executive director and a replacement. Several commissioners contacted for this story were not available for comment or did not respond.
Gov. Brown, who signed the Coastal Act into law, has remained silent throughout the firing process. “This is a personnel matter—initiated without any involvement from our office—for the Coastal Commission to decide,” said Evan Westrup, an office representative.
Under state law, everything lower than the high-tide mark is public property. For 40 years, the commission has made sure that law was honored. The silver lining in Lester’s ousting may be broader a public understanding of the threats to coast, which could help shape environmental regulation in response to climate change.
Every house built is at risk from sea level rise, flooding and landslides, says Susanne Moser, a researcher at the Stanford Woods Institute for the Environment. The coast now faces a battle “of short-term interests and long-term interests,” she says. “There’s more to the coast than being a cash cow.”
This story was originally published by High Country News.
At the heart of age-old disagreements about who should own and manage public lands in Western states—the federal government, states, or local communities—is one key document: the U.S. Constitution.
Supporters of transferring federal lands to state or local control, including the armed occupiers of the Malheur National Wildlife Refuge in Oregon, often cite the Constitution, along with original statehood documents, to justify their cause. Here are three of their main arguments, and what mainstream legal scholars have to say about them.
In a Fox News interview two days after the Malheur occupation began in early January, a reporter asked ringleader Ammon Bundy, “How is what you're doing not lawlessness?” He replied: “I think that we have to go to the supreme law of the land to answer that question. And that is that the federal government does not have authority to come down into the states and to control its land and resources. That is for the people to do, and that is clearly stated in Article 1, (Section) 8, (Clause) 17 of the Constitution.”
That article, also known as the Enclave Clause, grants the federal government the following power:
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings…”
Scholars I spoke with for this story said it was unclear how Bundy would interpret the Enclave Clause to mean the federal government shouldn’t control public land. Perhaps he interprets the phrase regarding consent of state legislatures to imply that states can decline federal management. But either way, constitutional scholars say Bundy’s interpretation is flat-out wrong. The Supreme Court has consistently interpreted the Enclave Clause not as curtailing federal control of public land, but protecting it. There is a bargaining process between the feds and states to obtain exclusive jurisdiction over an area of public land.
“(The clause) essentially makes (a particular federally owned) land area an enclave, by giving it a different set of rules for jurisdiction,” says Deb Donahue, a professor of public lands law at the University of Wyoming. She says it has been applied beyond the “ten miles square” area it originally set aside for Washington, D.C.’s creation. When it comes to the West, Donahue says the reference to “needful buildings” has been extended to recreation areas and national parks. For instance, Yellowstone National Park acquired enclave status using that clause.
Legal scholars say Ammon Bundy is not only misinterpreting the Enclave Clause, but also overlooking the Constitution’s Property Clause, which further undermines his argument. The Property Clause, outlined in Article 4, Section 3, Clause 2, states the following:
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
Although challenged periodically in court, federal application of the Property Clause has been consistently supported in a chain of legal precedent that extends back to 1840. “In an unbroken line of cases, the Supreme Court has upheld federal management of public federal lands under the Property Clause,” says Michael Blumm, a law professor at Oregon’s Lewis and Clark College who specializes in public lands.
Land transfer advocates have also often used the Tenth Amendment to the Constitution in their arguments. The Amendment reads:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In a recent entry on his blog, Cliven Bundy—Ammon’s father who was embroiled in another high-profile armed standoff with the government in 2014—writes that, “In the 10th Amendment, only a very few powers are given by the people to the federal government. All other powers and rights are reserved to the states respectively or to the people.”
But once again, constitutional scholars say that land-transfer arguments involving the 10th Amendment ignore the Property Clause, which specifically gives the federal government the ability to manage land use.
“We have 175 years of consistent interpretation of the Property Clause and then we have the Bundys. Which is more persuasive?” asks Blumm.
David Hayes, the former deputy secretary at the Department of the Interior in the Clinton and Obama administrations and a current law lecturer at Stanford University, also points to the Property Clause. “The Tenth Amendment doesn’t come into play, because the Constitution explicitly grants power to the Congress to regulate public lands under the Property Clause,” Hayes says.
Bundy supporters and others who believe that federal land should be transferred to state or local control, have also cited agreements called “enabling acts” as evidence of federal overreach. Those acts outlined conditions under which new states were to be admitted to the union, and included agreements concerning public land.
In a 2012 op-ed, the land transfer movement’s most prominent voice, Utah assemblyman Ken Ivory, wrote that the federal government violated an enabling act promise “to ‘extinguish its title’ to the public lands.” In Utah’s enabling act, reference to extinguishing titles appears here:
“The people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof ... and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States...”
Most public-lands scholars say that state enabling acts actually justify federal land management policies, rather than limit them.
According to Blumm, enabling acts were a product of bargaining between the federal government and territories, prior to statehood. “They would agree on the conveyance of various federal lands to the states for various purposes, mostly having to do with schools, or roads, or state office buildings,” says Blumm. “In all those statehood acts, the states promised they’d leave federal lands alone…. They wouldn’t interfere with federal management.”
Overall, legal experts say the Constitutional rhetoric coming out of the Oregon occupation and the land transfer movement is deeply flawed.
“I think it’s fair to say they speak in generalities about very selective parts of the Constitution,” Donahue says of the Oregon occupiers. “They’re just not accurately representing what the Constitution says and how courts, including the Supreme Court, have construed it for over 200 years now.”
Following the arrest of Bundy and other militants, the matter will be addressed in court. “I think that Bundy got what he wanted: He wanted to get before a judge and make an argument,” says Blumm. “Unfortunately (for him), we live in a world of precedent.”
This article originally appeared in High Country News.