Friday, December 16, 2011

Siskiyou County declares jurisdiction over Scott River water

It was buried deep below the lead, but on December 7th, 2011 the Yreka-based Siskiyou Daily News broke what could become a big story.

The front page news item by John Bowman reported on the Siskiyou County Board of Supervisor’s decision not to participate in a California Department of Fish & Games Scot River flow study. But several paragraphs in, Bowman reported Supervisor Marcia Armstrong declaring that Siskiyou County – not the State – has jurisdiction over Scott River Basin water.  Here’s what Armstrong said:

           “as the County Flood Control and Water Conservation District, we have jurisdiction over flows, not [the DFG].”

 In recent decades Scott River has been dewatered as a result of illegal, year-around irrigation and unlimited groundwater pumping for irrigation. The Forest Service right to flows for fish in Scott River is now not met every year

Now we all know that talk is cheap. In spite of the fact that the Siskiyou County Supervisors have diverted money from services to citizens in order to beef up the county counsel’s office - and in spite of the considerable sound and fury they unleash on federal and state officials whenever they have the opportunity - so far the majority faction we call “the Four Stuporvisors of the Imaginary Kingdom of Siskiyou” have yet to file even one lawsuit backing up their claims of jurisdiction.

Will they put their lawyers where their mouth is?

So which is it: are the Four Stuporvisors just blowing hot air or are they willing to put that new stable of lawyers to work? KlamBlog offers each of them – Jim Cook, Grace Bennett, Michael Kobseff and Marcia Armstrong - all the space on KlamBlog they desire in order to explain themselves to the people. 

KlamBlog will offer a prediction:  Should the Four Stuporvisors actually believe what they are spouting and should they have sufficient courage to pursue those beliefs in court (which we doubt), their case claiming jurisdiction over Scott River water would be thrown out at the first hearing. It would also be the occasion for uproars of laughter in every law firm specializing in water law from here to Alaska and back down to Southern Arizona.

Here’s why we can predict with absolute confidence that such a case would quickly land in the court’s dustbin:

Counties are a subservient jurisdiction of the state and county supervisors depend on the state for the  authority they have. Ownership of water and jurisdiction over how it is managed rest with the people and the state respectively. That authority has not been devolved from the legislature to the counties.

The relevant sections of the California Constitution pertaining to ownership of water are reprinted at the end of this blog entry.  There are also several guides to California Water Law available on line. Here's a link to one of those guides. 

One would have thought the Four Stuporvisors would have gained a basic understanding of these things during their orientation and training…or at least that one of those lawyers they have hired would have told them.  But maybe they were asleep or looking out the window during that briefing.

So, to paraphrase a famous poet, the Four Stupervisors’ bluster amounts to a shrill and odiferous passing of air signifying nothing other than the character of those sounding off….and maybe what they ate for lunch.

There has been one very real effect of all that wind, however. Now state and federal agencies send mid-level bureaucrats when the Four Stuporvisors call. KlamBlog suspects that this is the way state and federal government officials punish underlings who mess up.

There actually is a real water grab going on in California – one about which the Four Stuporvisors appear to be totally ignorant. The real California Water grab is explained very well in a 2010 article from the Redding Record Searchlight titled “Who Owns California Water”.   

Costales Rebuffed

In the case of the DFG flow study, the Four Stuporvisors rejected the recommendation of their own natural resource specialist – Ric Costales. An ex back-to-the-land homesteader and timber faller, Costales is one of the originators of the Bucket Brigade and a fellow who can not only organize but also verbally lambast a federal or state official in the best right-wing tradition. These days, however, the Four Stuporvisors are making Ric look downright mellow.  I guess the lesson here is to beware of reason when dealing with these four. The fifth supervisor – Ed Valensuela - tries in vain to interject a modicum of reason into the deliberations. We sympathize with Mr. Valenzuela; what a frustrating job it must be trying to talk reason to that bunch!

It is said that people get the sort of elected representatives whom they deserve. With the Four Stuporvisors Siskiyou County citizens got folks who are willing to sustain an atmosphere of mean spirit strong enough to drive away any modern dynamic business which might be contemplating locating in the county. I guess they are trying to make their crazy idea that wealth only derives from logging, mining, farming and ranching into a local reality.   

Maybe we can get Congress to declare Siskiyou County a national monument. After all, it already is a monument to the spirit of Knownothingism:
                       Don’t bother me with the facts; 
                       just pass the ammunition.


SECTION 1.  The right of eminent domain is hereby declared to exist
in the State to all frontages on the navigable waters of this State.

SEC. 2.  It is hereby declared that because of the conditions
prevailing in this State the general welfare requires that the water
resources of the State be put to beneficial use to the fullest extent
of which they are capable, and that the waste or unreasonable use or
unreasonable method of use of water be prevented, and that the
conservation of such waters is to be exercised with a view to the
reasonable and beneficial use thereof in the interest of the people
and for the public welfare.  The right to water or to the use or flow
of water in or from any natural stream or water course in this State
is and shall be limited to such water as shall be reasonably
required for the beneficial use to be served, and such right does not
and shall not extend to the waste or unreasonable use or
unreasonable method of use or unreasonable method of diversion of
water.  Riparian rights in a stream or water course attach to, but to
no more than so much of the flow thereof as may be required or used
consistently with this section, for the purposes for which such lands
are, or may be made adaptable, in view of such reasonable and
beneficial uses; provided, however, that nothing herein contained
shall be construed as depriving any riparian owner of the reasonable
use of water of the stream to which the owner's land is riparian
under reasonable methods of diversion and use, or as depriving any
appropriator of water to which the appropriator is lawfully entitled.
  This section shall be self-executing, and the Legislature may also
enact laws in the furtherance of the policy in this section

SEC. 3.  All tidelands within two miles of any incorporated city,
city and county, or town in this State, and fronting on the water of
any harbor, estuary, bay, or inlet used for the purposes of
navigation, shall be withheld from grant or sale to private persons,
partnerships, or corporations; provided, however, that any such
tidelands, reserved to the State solely for street purposes, which
the Legislature finds and declares are not used for navigation
purposes and are not necessary for such purposes may be sold to any
town, city, county, city and county, municipal corporations, private
persons, partnerships or corporations subject to such conditions as
the Legislature determines are necessary to be imposed in connection
with any such sales in order to protect the public interest.

SEC. 4.  No individual, partnership, or corporation, claiming or
possessing the frontage or tidal lands of a harbor, bay, inlet,
estuary, or other navigable water in this State, shall be permitted
to exclude the right of way to such water whenever it is required for
any public purpose, nor to destroy or obstruct the free navigation
of such water; and the Legislature shall enact such laws as will give
the most liberal construction to this provision, so that access to
the navigable waters of this State shall be always attainable for the
people thereof.

SEC. 5.  The use of all water now appropriated, or that may
hereafter be appropriated, for sale, rental, or distribution, is
hereby declared to be a public use, and subject to the regulation and
control of the State, in the manner to be prescribed by law.

SEC. 6.  The right to collect rates or compensation for the use of
water supplied to any county, city and county, or town, or the
inhabitants thereof, is a franchise, and cannot be exercised except
by authority of and in the manner prescribed by law.

SEC. 7.  Whenever any agency of government, local, state, or
federal, hereafter acquires any interest in real property in this
State, the acceptance of the interest shall constitute an agreement
by the agency to conform to the laws of California as to the
acquisition, control, use, and distribution of water with respect to
the land so acquired.


T said...

Clearly one for the Board of Supes "Greatest Hits" collection.

Maybe Ms. Armstrong has decided to pour water on the recall effort by moving to the right (as if that was actually possible).

TC/ Trout Underground said...

Definitely one for the Supervisor's Greatest Hits collection.

Maybe Armstrong is moving to the right (as if that was possible) to pour water on the recall effort.