California water politics in the twentieth century

The Marshall Plan (as it was generally known) envisioned a vast system of reservoirs and canals that would bring Sacramento River water south to the arid parts of the Central Valley (see Marshall, 1920). The scheme was to be centered at what is now Shasta Dam, which would water the northern part of the San Joaquin Valley and it would have dammed and diverted the big north coastal rivers into the Sacramento basin to flow south. The Eel, the Mad, the Smith, and the Klamath rivers are each bigger and have more regular flows than the Feather which remain undeveloped. Instead, a smaller Dam on the lower San Joaquin would direct irrigation water to the southern reaches of the CV. The creation of large reservoirs and the diversion of north coast water into the Sacramento created what came to be called “surplus” or “project” water, which was water available for use that would otherwise have flowed to the Pacific.

Getting northern California water to Los Angeles, however, would have required that massive pumps and tunnels be built in order to elevate water more than 2000 feet to cross over the mountain passes to the Southland. This was bigger than any pumping operation ever attempted. He suggested that southern California could rely instead on the Kern River, the southernmost big river that flowed out of the Sierras: The Kern “[…] which will be diverted through a long tunnel for use in southern California […] which at a reasonable cost would provide all the water southern California can reasonably get and perhaps would need for 150 years.” He warned that “If southern California does not join the large scheme at the beginning […] Southern California cannot get the Kern River water in the future.”

I am not sure what happened to those ideas. A key feature (or bug) of the Kern plan was that central valley irrigators would be cut out of the action altogether. Those in southern part of the valley would not only lose access to Kern River water, there would also be no need to divert Feather River water south where it would flow by their farms. In any case, state decision-makers doubted they could sell the whole project to the legislature or the electorate. Maybe, to prevail in the malapportioned state senate, they needed a bigger coalition that would include agricultural interests from the Central Valley.

Marshall’s plan promised to solve two chronic problems that had limited agriculture: controlling the big rivers to prevent floods and delivering water to farms for irrigation. The Plan could not be built without funds and political support. The economic and political challenges were interlinked because the project would have to generate enough revenues to finance the massive bond issue that would be needed. Marshall’s plan did not lack for support. Legislation authorizing its construction passed the State Senate in 1921, and the scheme was offered to the voters three times, in 1922, 1924, and 1926. Its rejection had much to do with its expense, which Marshall estimated at $750 million, equivalent to over $10 billion today — in a California economy a fraction the size of today’s (Hundley, 1992). This implied that the dams must be big enough to generate hydroelectric power as well as water for municipal and agricultural use. Predictably, the big power companies opposed government funded electricity generation and as did farmers in the Sacramento Valley who stood to lose their water to the South. Despite all these problems, within a few years the plan was at least partly “adopted” by the state legislature. There was no path, however, to get the money to actually move it forward ^[5].

The onset of Depression forced California to turn to Congress for help. Here things got complicated. FDR was eager to push the project forward as a shovel-ready emergency stimulus measure under the NRA. There was, however, another problem. If the federal government funded the project for the reclamation purposes laid out in the Marshall Plan, it would probably have to be built by the Bureau of Reclamation. The 1902 Reclamation Act might then require that delivery of any project water for irrigation be restricted to small farms. The 1902 Act, like most preemption statutes and other federal land laws, placed tight acreage limits on the distribution of land and water from federal projects. Many state statutes had similar limits. That these limits were ineffective and often unenforced in the nineteenth century was partly attributable to the fact that governments lacked the administrative capacity to make the laws stick. The growth of administrative and regulatory agencies in the new century promised to extend governmental powers in ways that might change that situation.

In fact, in 1933 the Bureau signed on to California’s proposal. The Rivers and Harbors Act of 1935 authorized the construction of Shasta dam for purposes of flood control and navigation, subject to a finding of feasibility by the Secretary of the Interior and approval by the President. Its initial features were to be constructed by the Corps of Engineers. The Supreme Court, however, blocked this move, insisting that the Project required explicit congressional authorization. In effect the Court wanted clarification of the purposes or justification of the project and indication of which agency would build and which would operate the project. Things could not go forward without new authorizing legislation.

In 1937 Congress reauthorized the project in the 1937 Rivers and Harbors Act, which specified that the project was to be managed by the Bureau of Reclamation but, crucially, the Army Corps of Engineers was to do the construction ^[6]. The 1937 Rivers and Harbors Act provided that “[…] the entire Central Valley project, California […] is hereby reauthorized and declared to be for the purposes of improving navigation, regulating the flow of the San Joaquin River and the Sacramento River, controlling floods, providing for storage and for the delivery of the stored waters thereof, for the reclamation of arid and semi-arid lands and lands of Indian reservations, and other beneficial uses, and for the generation and sale of electric energy as a means of financially aiding and assisting such undertakings and in order to permit the full utilization of the works constructed to accomplish the aforesaid purposes […]” (Graham, 1950, p. 592). Crucially, by attributing the primary purpose of the Shasta dam to flood control and navigation, rather than to irrigation, the legislation gifted favorable financial prospects to the big farmers ^[7]. Reclamation and power generation were relegated to secondary or incidental aims. Because the Corps built the project, farmers could circumvent the dreaded 160-acre limit that attached to projects built by the Bureau. At least that was the hope.

The seeds of interagency conflict were already embedded by the 1937 Act and its history. The battle lines were clear: on one side, favoring large farmers, the California Chamber of Commerce, Farm Bureau, and the Irrigation Districts lined up against acreage limits; they favored using the Corps of Engineers to build and manage the project. On the other, the California Grange, AFL-CIO, VFW, the American Legion, The National Famer’s Union, and various religious groups, which lined up with Bureau of Reclamation. While this lineup cut across party lines to some extent, it mostly aligned small farmers against big agribusiness. It soon became evident that Republicans were more hostile to acreage limits than Democrats ^[8]. This conflict played out in various settings — congressional, bureaucratic, and judicial — for decades, with each side winning battles occasionally but, as we shall see, the Bureau became more and more reluctant to enforce acreage restrictions. The success and survival of the agency depended on this.

Long before the Civil War, southern states sought federal help to drain swamps, initially in Florida, Louisiana, and Arkansas. The 1849 and 1850 Swamplands Acts transferred federal lands to the states which could then sell off properties to finance these projects. A few years later the provisions of the Act were extended to California and other states. Later in the century, Southern representatives led efforts to push the Corps of engineers to widen its portfolio to include flood control on the Mississippi. Powerful new interest groups were formed for this purpose: the New Orleans based National Rivers and Harbors Congress is a leading example. Western Senators also began pushing for new federal money for water projects. Per Pisani (1992, p. 274): “Western politicians quickly learned that they could strengthen their political muscle by allying with the South […] In 1891 Nevada’s William Morris Stewart, aided by other western senators, prevented the consideration of a new force bill […] [which would have] authorized the president to use federal election supervisors and troops to protect the voting rights of black citizens. In return, southern Democrats supported opening the debate on silver coinage legislation.”

Southerners also supported the western efforts to cripple the US Geological Survey in the hope that the West would join in their campaign against high protective tariffs. In 1896 Wyoming’s Senator Frances Warren introduced an amendment to the Rivers and Harbors Bill to authorize surveys of potential dam sites on Missouri River tributaries in Wyoming and Colorado: “it is no more than fair and just […] that these arid-land states shall participate hereafter in the deliberations, emoluments, and perquisites of river and harbor bills. If money is to be distributed with some little regard for local benefits, then give us our share” (Pisani, 1992, p. 275). Warren threatened to vote against future Rivers and Harbors bills if the Senate rejected his amendment. He recognized that dams on the Missouri would do little to protect the lower Mississippi from flooding as floods were mostly due to runoff from the Ohio River basin. The dams were squarely aimed to supply water for irrigation with the hope that navigation benefits would accrue as well. Warren’s surveys were only a part of a sustained campaign for federal funds for his state. The surveys supported a recommendation from the Corps of Engineers for three dams in Wyoming and Colorado.

Warren saw his campaign as a matter of principle and not simply a boondoggle for his own state. He was under no illusions on this point. He believed that river and harbor bills were “[…] a method to share the wealth […] simply a dividend declared by the nation and distributed over it for the benefit of trade and commerce” (Pisani, 1992, p. 280). And he believed that increasing commerce was at the heart of the Constitution’s commerce clause and that the nation as a whole would benefit. In 1899 Warren and Senator Thomas Carter of Montana asked for $2 million to build reservoirs and canals in all the arid states. But Warren’s amendment, while approved unanimously by the Senate, was dropped in conference committee. He took the floor to filibuster the measure, claiming that the one member of the House had defied the will of the Senate. While the Senate agreed to send the bill back to conference, the House did not budge, and Warren had to give in or face the wrath of all the other Senators who had interests in the bill.

The same sequence recurred in 1901, when the Senate refused to approve a rider proposed by Senator Carter to fund reservoirs at the headwaters of the Missouri River. The bill was then scuttled by a filibuster. In 12 hours of nonstop lecture, Carter depicted the bill as a massive logroll among eastern congressmen that was nothing other than a raid on the treasury. In the end Senator Warren announced that “[…] before another rivers and harbor bill passes […] there will be reservoirs built and provided for by this nation, either in the River and Harbor bill or by some other appropriations bill, or in an independent measure” (Pisani, 1992, p. 285).

Failing repeatedly to get their projects into river and harbor bills, western representatives introduced a number of free-standing reclamation bills in 1900 and 1901. Some promised each state and territory an irrigation project, while others required the Secretary of the Interior to choose the best sites. The bills differed in how projects would be funded: some proposed general revenues and others envisioned funding by sales of public lands. Most limited project water to farms no larger than 40 or 80 acres. In early 1901 Nevada representative Frances Newlands drew on the expertise of Frederick H. Newell at the USGS to put together a bill that combined features of previous proposals. The Newlands/Newell bill retained acreage limits, required farmers to repay the cost of irrigation over 10 or 20 years, and authorized the Interior Secretary to cut off water to those in arrears of their payments. The bill would also create a revolving fund from the collected payments which would be used to fund future projects. Newlands thought that this would keep the legislation out of the annual appropriations process where Joseph Cannon might throttle western projects. Newlands also hoped to alleviate the fears of Eastern congressmen about a western raid on the river and harbors bills.

As it happened the Newlands bill was not taken up in the Senate in 1901 because Senator Carter’s filibuster had clogged up the end of session agenda. But it was ready for consideration in the next session. There was plenty of opposition. Eastern and Southern Congressmen — especially those from districts near the Mississippi and Ohio Rivers or with significant harbors — worried that western projects would come of out the annual river and harbor bill: their “private” pork barrel. Eastern farmers also worried that increasing government subsidized farms would drive commodity prices down. And, some western Senators preferred the federal government to cede public domain lands to the States which could use land sales for fund state reclamation programs. In addition to these obstacles, there was a continuing fight between the USGS (located in the Interior Department) and the Department of Agriculture, which regarded irrigation as its bailiwick.

Elwood Mead, the respected Wyoming State engineer, accepted a position in the Agriculture Department and soon placed his agency squarely in opposition to Frederick Newell at the USGS. Mead launched a number of initiatives that undercut the USGS and recruited engineers from Newell’s staff. Mead thought The Newlands bill was deficient in many ways. From his time in Wyoming, he had little respect for the USGS’s capabilities in irrigation and thought much of its work was useless for the design of irrigation projects. That is why he wanted to build up the Department of Agriculture’s survey capabilities. He also argued that Newland’s scheme would confiscate vested water rights in the western states and that it was actually “[…] designed in large part to reassert federal authority over water in the arid West […] a massive and tyrannical new bureau would be required to maintain national control. The arid states would virtually cease to exist as independent entities” (Pisani, 1992, p. 310).

Instead of building a new federal agency, Mead urged the federal government to cede 5 million acres of grazing lands to the states in order to fund the states to set up their own irrigation departments. Mead also launched a large survey of California water rights, allowing him to form alliances with California’s irrigation proponents, which (unlike in most farmers in the other western states) were often big industrial farmers. By 1902 Mead had also assembled a large and highly competent staff of engineers that positioned it well to oppose, amend or emasculate any congressional undertaking in the irrigation area. Newell was justified in feeling paranoid.

Mead’s opposition and that of other prominent reclamation advocates provided impetus for amending Newlands’ bill prior to its submission to Congress. The new proposal, which was introduced in January 1902, increased the acreage limit to 160 acres, required that most land sales revenues be spent in the state of origin, and required that state laws governing water and land, be considered paramount in the administration of the act. While the revised Newlands bill managed to get most westerners on board, it did not meet Elwood Mead’s objections and there remained substantial eastern opposition to the bill. Eastern congressmen continued to worry that expanding western agriculture (at public expense) would worsen crop surpluses and drive down prices. There were also constitutional objections that irrigation necessarily involved using federal power to support private interests. They also objected to the self-funding aspect of Newlands’ bill which, opponents argued, amounted to surrendering Congress’s power of the purse, as well as enhancing the “dictatorial” prerogatives of the Secretary of the Interior.

Things began to change when, after President McKinley’s was assassinated, Theodore Roosevelt took over. Roosevelt was both an advocate of reclamation and of a strong federal role in the West. In March of 1902, he interceded in the congressional squabbles, brandishing veto threats to force changes in the bill. Most of these changes strengthened the federal role in various ways. Not surprisingly, Mead remained skeptical of the legislation and doubted that it could be enacted in anything like its current form. The bill passed easily in the Senate but, as was clear from the outset, the critical test would be in the House and that the opposition would be led by Illinois congressman Joseph Cannon, chairman House Appropriations Committee. Roosevelt wrote to Joseph Cannon, hinting that if Cannon blocked Newlands’ bill, the president might veto the Rivers and Harbors bill which was very important to Illinois. With his characteristic delicacy Roosevelt wrote: “I am just about to sign the River and Harbor bill […] this is a measure for the material benefit of your state and mine and of the other states with harbors and navigable rivers. Surely it is but simple justice for us to give to the arid regions a measure of relief […]” (quoted in Pisani, 1992, p. 318). The bill passed with strong Democratic support but with almost a third of the House refusing to vote at all. All regions of the country produced majorities for the bill but support was unanimous in the West and was very strong in the South.

The Newlands Act set out the foundations of federal irrigation policy and established (what eventually became) the Bureau of Reclamation, as its lead agency. It is fair to say, that at least in its early years, the Act was not successful in reclaiming much land. Its passage had been marked by numerous last-minute compromises over foundational aspects. The first is that the Bureau would not be funded out of general appropriations but by a revolving fund that would be replenished as projects were completed by repayments by beneficiaries. The core idea — no doubt essential to its enactment — that the irrigation would be promptly repaid by project beneficiaries — was founded on long-standing Republican principles. While the public had a general interest in reclamation, the interests of the individual beneficiaries were private and not a proper object for government. Those who received benefits should pay  — and pay promptly. The revolving fund was also the price to be paid for escaping appropriations process and convincing non-western congressmen that the reclamation would not raid the treasury or diminish their access to pork barrel bills. The revolving fund, however, was to prove completely unrealistic given the short time frame for repayment. Predictably the revolving fund would not actually be replenished and the Bureau, therefore, would be starved for funds for new projects. Equally problematic were provisions aimed at keeping revenues — from land sales and repayments — within the state of origin. Early administrators probably read this requirement as a congressional preference for spreading irrigation projects around. When combined with meager revenues from repayments, this meant that, whatever policies the early administrators adopted, projects would be built very slowly and that the Bureau would have few successes to show in its early years.

By 1920 the program was widely regarded as ineffective, and the Bureau entered the 1930s in terrible shape. It had no money and little remaining congressional support. The hard times of the Depression, however, changed everything. While the Bureau itself was destitute, Congress suddenly had huge Democratic majorities and its members arrived with a mandate to borrow and spend money to address the misery of the Depression. Midwestern districts remained mostly Republican but they were politically irrelevant after 1932, and the new administration was eager to find ways to deal with the massive numbers of unemployed as well as the struggling small farmers. California’s nascent Central Valley Project (CVP) seemed a perfect fit for the Bureau’s core mission ^[9] if a way could be found to reinvigorate its core mission. God had given the Bureau a chance to re-invent itself.

The incoming Interior Secretary (Harold Ickes), however, was not much interested in reclamation and, indeed, early in his tenure, he sought to have the Bureau transferred to Agriculture. It was not until he realized the potential of power generation (at Hoover Dam, and the Grand Coulee in Washington, etc.) that Ickes became a convert to large multi-use water schemes ^[10]. Not only would power generation lower the cost of running the project’s pumps, selling federally generated power would also provide a robust source of financing. New and cheap power would allow the agency to push rural electrification, a favorite idea of both Secretary Ickes and FDR. In addition, the money from power generation would make it possible to stretch out the (unrealistically short) repayment period for irrigation benefits. Once Ickes got on board, the California CVP looked to be tailor made for the Bureau ^[11]. The state had already passed an initiative in 1933 authorizing a central valley project but had been unable to raise the money for it. The combination of massive unemployment and a fortuitous statewide drought powerfully altered the national as well as state political landscape. California congressmen, allied with the state engineer successfully urged a newly receptive federal government to take over the shovel ready state water project.

The Bureau first needed to acquire rights to the necessary waters — which brought it into contact with California’s complex water law — and it needed to find a way to finance the Project. There were two issues involving water rights: acquiring existing rights from private rights holders and acquiring previously unappropriated rights. As to privately held rights the Bureau made bargains — often offering to swap rights in one watershed for others that the government held elsewhere. “In 1939, after extended negotiations, a transaction was concluded between the United States and Miller & Lux and its affiliated companies through the execution of the purchase and exchange contracts and deed […] They, in effect, expressed the consent of Miller & Lux and its affiliated companies to the operation of Friant Reservoir in accordance with prescribed standards and conveyed certain defined rights. In return, the United States paid a cash consideration of $2,450,000 and contracted to furnish, for certain croplands, water of a stipulated quantity and quality in substitution for a portion of the San Joaquin water which would be available but for the operation of Friant Reservoir” ^[12].

With respect to new water rights, various state and federal precedents seemed to imply that state water doctrine would generally remain in force and, specifically, that the Bureau would have to go through California administrative procedures to claim new water rights. This raised some interesting federalism issues insofar as a federal agency was purported to be regulated by a state agency under state law. The Federal government never regarded California law as imposing binding legal requirements but instead considered federal compliance with California law a matter of comity. The Bureau was supposed to act consistently with state laws but there was no legal requirement that it actually do so. The Bureau and its congressional sponsors were willing to go along with the pretense that state “authority” controlled as long as the courts did not upset the deal ^[13].

Financing was made easier by building the Shasta, Trinity, and Friant Dams as power generating facilities ^[14]. As mentioned above, however, power generating dams generated political opposition as well as electrical power. Moreover, the Bureau was permitted to stretch out the period over which end users had to pay for construction (to a slightly more realistic 40 years) and get access to general revenues. Crucially the Bureau was able to continue to use power generation and other benefits (navigation, flood control, recreation and, eventually, conservation) to justify its projects. And these benefits were considered incidental to reclamation and did not need to be paid for by end users. The Bureau also needed find the authority to distribute the waters it was able to produce. This turned out to be, well, complicated.

Here was the problem: when it came to distributing actual water, the 1902 Reclamation Act (Section 5) seemed (on its face) to prohibit distribution to non-residents or to land parcels exceeding 160 acres. The Reclamation Act had been aimed at opening farming lands to settlers who would not only farm the land but would also populate the area and build towns and communities. Nevada Representative Frances Newlands, the acknowledged father of the Act, said that its purpose was “not only to prevent the creation of monopoly in the lands now belonging to the Government, but to break up existing land monopoly in the West.” Like everyone else, Newlands knew that large farms dominated the California’s Central Valley. The immense Miller-Lux company had been joined by the Boswell and Salyer cotton plantations (Taylor, 1949). Haggin’s mining/agribusiness empire was another example, as were the huge areas controlled by the Southern Pacific. Smaller farms persisted in the eastern and northern parts of the Valley, where water was more easily accessible. Newlands realized that if water were to become available for irrigation, there would be a speculative boom in the arid parts of the Valley. That accounts for the acreage and residency restrictions he put into the Act. The idea of reclamation with Section 5 was popular and was supported by FDR and his progressive administrators. The idea that the arid west could be made safe for the family farm resonated widely.

In fact the language of Section 5 had long discouraged the big farmers from supporting federal efforts to develop the Central Valley. But the political climate changed after the depression set in. The Bureau, in congressional testimony, began to suggest that the limit would be removed before the project was completed (Taylor, 1949), or in any case “was not to be taken seriously” ^[15]. Director Page wrote Secretary Harold Ickes in 1940: “My present idea is that the Secretary should be given authority to establish farm units without the 160-acre limitation [where only] a supplemental water supply [is furnished]. We are convinced that in some areas the reduction of holdings to 160 acres would be impractical and would adversely affect the economy of the area.” So, while the Bureau hinted that it willing to drop or at least soften the limitation it was not clear how this could be accomplished legally. And, besides, such efforts soon ran afoul of the progressives inside the Bureau and elsewhere in the administration.

This was the state of affairs after the Central Valley Project was authorized. The big farms pushed to have California buy out the federal government after the project was constructed. State law had no acreage limitation and so there would be no problem distributing irrigation water to the large farms. This idea, however, proved too expensive for state taxpayers and, in any case, the federal government was unenthusiastic about giving up regulatory authority. As a result, the acreage limit problem lingered in Congress in water politics for half a century. The other option was simply to have the Corps of Engineers (which did not see itself as bound by the Reclamation Act) build the Project instead of the Bureau ^[16]. The Corps had already been included in the original authorizing legislation and so there was evidence of congressional assent to expanding its role (Davis, 1966). The big farms eagerly seized this opportunity to try play one agency off against the other. They found the Corps to be a more than willing partner. The Corps was already building on the Kern River in the Southern Valley, and was eager to extend its portfolio further north. By the early 1940s large southern CV farmers had succeeded in getting the state Engineer on their side on the choice of federal agency.

The Corps promised to be much more responsive to local interests — especially big farmers and the water districts they controlled — than the Bureau had been (which, under Interior Secretary Ickes, retained its Progressive tilt). The Bureau’s traditional mission had been to reclaim land for agriculture in order to settle the empty western lands. This led the Bureau to favor projects that would permit the establishment of large populations of small farms (as it was directed to do in the 1902 Reclamation Act). Both Ickes and Roosevelt believed in this mission and supported it as did the agency’s civil servants for the most part. By contrast the Corps’ traditional mission was navigation, to which flood control was added following the 1927 Mississippi flood. These were understood to be public goods with benefits extending throughout the flood plain and were not considered to require much in the way of local contributions. Corps projects could therefore be funded out of general revenues without the need to charge end users. The Corps also did not need to add hydroelectric power generation in order to finance its projects and considered itself free to provide irrigation benefits as incidental to flood control and navigation. For these reasons, the Corps could easily avoid the controversies over acreage limits that the Bureau could not escape. And, because it was able to treat irrigation benefits as merely incidental to navigation and flood control, it was much freer than the Bureau to seek support from small famers by limiting their repayment obligations.

The Corps had already attempted to take the construction of the Pine Flat Dam on the Kings River away from the Bureau, even to the extent of ignoring repeated presidential directives to the contrary. In 1944 an amendment was offered to the Rivers and Harbors Bill in the House exempting the Project from the acreage limit altogether. The bill failed in the Senate, but the idea did not die. Another attempt to exclude the Project from acreage limits came in the “do nothing” 80th Congress; but it did not get out of Senate committee. These maneuvers reflected jurisdictional conflicts inside Congress itself: Corps projects were considered by the public works committees (Rivers and Harbors and Flood Control) whereas the Bureau’s business was in the jurisdiction of the Interior committees. The Corps argued that Pine Flat was justified solely by its flood control benefits and that any irrigation benefits from the use of impounded water were incidental (and therefore did not need to be reimbursed) ^[17]. At the end of the day a compromise was reached: the Corps built Pine Flats dam but the Bureau took over its management.

The Pine Flat compromise, however, left the acreage limitation in limbo: it was not clear that the Bureau could legally refuse to enforce it. The big landowners got very nervous about this situation. They offered to buy out the government altogether and build the dam privately (Arax and Wartzman, 2003). The Commissioner of the Bureau of Reclamation, Michael Straus “could not abandon the excess land law openly […] the 160 acre law was indispensable to reclamation appropriations, particularly among liberals who were most receptive to federal spending” (Koppes, 1978, p. 624) ^[18]. A turning point was reached in 1947 when Commissioner Straus “[…] eased tensions over enforcement of the excess land law by announcing what was called a […] technical compliance formula. The public at large understood that the family farm law was still intact while [at the same time] the large growers were assured that it would not be strictly enforced.” (Lee, 1980, p. 404). Liberals were not pleased and at this point the political coalitions shifted. The Grange, for example, which had historically supported the (Progressive) Bureau, now saw the agency as having been coopted or corrupted by agents of agribusiness.

Despite Straus’s “technical compliance” formula, the 160-acre limitation was not yet dead. Not even in Pine Flat. The issue arose once again in the mid-1960s, this time concerning Kings River water and specifically, the waters impounded behind the Pine Flat Dam which, one might recall, had been constructed by the Corps of Engineers. In 1967 an appellate court ruled that the acreage limitation contained in the Reclamation Act applied to Pine Flat water. “No one saw it coming. A federal appeals court in San Francisco was now saying that the giant farms of Tulare Lake had to abide by the old reclamation law. They could be no bigger than 160 acres […]” (Arax and Wartzman, 2003, ch. 15). Until then the big growers had been on a winning streak: “In 1963, after much dithering, the government had agreed to store water at Pine Flat and, meanwhile, leave it to the courts to decide the knotty question of whether all the farms served by the project should be capped at a quarter square mile. Then, nine long years after that case was first filed, a ruling finally came down. From his chambers at the federal courthouse in Fresno, Judge Myron Crocker decreed that “[…] ‘reclamation law has no application to lands within the Kings River’ area.”’ The Colonel couldn’t have said it any better himself. The Bureau of Reclamation’s thirty-year attempt to break up Boswell and Salyer and the other agri-giants of Tulare Lake had been soundly rebuffed. It looked like the issue had finally been put to bed.

Four years later, the appeals court upset everything again, requiring that if irrigators wanted water from Pine Flat Dam, they would have to sell massive amounts of their lands ^[19]. Until the appellate court ruling it seemed that these and other assurances from the Bureau were sufficient to keep the 160-acre limitation in its grave. The growers had long argued that they “[…] had already reimbursed the U.S. Treasury for that minor portion of the dam allocated to storage and irrigation benefits. And that payment, in and of itself, should have removed the manacles of reclamation law […]” (Arax and Wartzman, 2003, ch. 15). The issue, however, had hardly been addressed or settled: “That the farmers could buy their way out of acreage limits-in the case of Pine Flat, for an interest-free total of $14.25 million-had long been a contentious proposition […] Through the Truman, Eisenhower and Kennedy administrations, officials at the highest levels had debated whether or not the policy was sound, flitting back and forth between blessing and denunciation.” The lawyers for the big farms however argued that Commissioner Straus (he of the technical compliance formula) had said in a 1952 that the payout principle was “established departmental policy.” Furthermore, “[…] in July 1957, Interior Secretary Fred Seaton assured those on the Kings that ‘the Department continues to recognize and support the basic concept of reclamation law that full and final payment […] ends the applicability of the acreage limitation.”’ (Arax and Wartzman, 2003, ch. 15).

Other deals were cut too. PG and E was bought off by a “wheeling” agreement with the Bureau (permitting it to buy public power to resell to its clients). In 1949 President Truman, in simultaneous letters to the Secretary of the Interior and the Secretary of the Army announced what was called the Folsom Formula, which proclaimed that the Bureau would be responsible for building big multipurpose dams, while the Corps was restricted to building dams for flood control ^[20]. But the Bureau would manage Corps constructed dams without the restrictions of the 1902 Act. “The Bureau and the Army Corps of Engineers became reconciled under the terms of the Folsom Formula in building and management of the New Melones and other Corps-constructed dams in the 1960s. The joint agreement for building, ownership, and use of the San Luis facilities by the state Department of Water Resources and the Bureau of Reclamation signalized the new partnership relations between the state and the CVP forged during the 1960s” (Lee, 1980, p. 405). At this point bureaucratic peace was secured on grounds favorable to the large landowners. The Corps could build projects but the Bureau would manage them (without enforcing the acreage limits). Southern CV farmers, who which had previously relied on damaging groundwater extraction, could now look forward to the prospect of two federal agencies competing to supply them with cheap surface water in most years, without any annoying acreage restrictions. And they could use the surplus, when there was one, to recharge groundwaters as a bank against intermittent droughts.

A few flies remained in the ointment. In 1958, the Supreme Court ruled in Ivanhoe Irrig. Dist. v. McCracken that the acreage limitation was not dead ^[21]. The Ivanhoe ruling concerned limitations on water delivery contracts for the Friant canal in the Southern CV: the Court overturned the California Supreme Court’s interpretation of the 1902 Reclamation Act. Section 8 of that Act “requires” the federal government to respect state laws in acquiring water rights. The California Court read Section 8 as overriding Section 5 of the 1902 Act, which is the 160-acre limitation, thus permitting the state to deliver water to farms in excess of the 160-acre limit. Justice Clark wrote for the Court that Section 8 only requires the Federal government to respect laws when acquiring rights, not with respect to deliveries. “We read nothing in §8 that compels the United States to deliver water on conditions imposed by the State. To read §8 to the contrary would require the Secretary to violate §5, the provisions of which […] have been national policy for over half a century. Without passing generally on the coverage of §8 in the delicate area of federal-state relations in the irrigation field, we do not believe that the Congress intended §8 to override the repeatedly reaffirmed national policy of §5” ^[22].

The Bureau reacted by requiring those holding “excess lands” (in excess of statutory requirements) enter contracts to sell the excess within 10 years, and also to be resident on any land that received federal water. Other rules and proposals, however, permitted modest relaxation of the acreage limit but, still, big farms would have to be broken up under the Department’s new policies ^[23]. Or, so it seemed. The new rules were, as it happened, easily and commonly evaded. The sales of excess lands were frequently made to absentees who then leased back to management to the previous owner (usually a large corporation) often employing large numbers of migrant farm workers. The result has been that landholdings in the southern CV to this day have remained very large and waters are still supplied at very low prices by the CPV. A textbook example is supplied by the immense Westlands district, which began receiving federal water in 1963. Its “[…] parcels technically met acreage limitations; existing landowners selected friends, relatives, or absentee investors to be the recipients of excess lands. Control is assured to the selling parties because original sellers lease back lands sold, allowing the farm to continue virtually unchanged […] The three largest landowners — Southern Pacific Railroad (106,000 acres, 42,898 hectares), J. G. Boswell (26,485 acres, 10,718 hectares), and Standard Oil (10,474 acres, 4,239 hectares) — hardly qualified as small farmers” (Mitchell, 1984).

As it became clear the CVP had been so expensive to build that it was not feasible for the state to raise the needed funds to buy out the Federal Government, attention turned to the prospect of building a state water project. After World War II it fell to the State Engineer, A. D. (Bob) Edmonston, to develop a project that would have a chance to deliver at least some significant water to Southern California. He developed a feasibility report for a scaled back project which, eventually, persuaded the state legislature to authorize the Feather River or State Water Project (SWP) in 1951 but that authorization did not provide the needed funding. Edmonston’s efforts to get the money took the better part of decade to begin to pay off and, by the time they did, he was largely out of the picture. Governor Pat Brown, who Edmonston had converted into a water enthusiast, essentially shoved him aside in the final push to get the project approved though, ultimately, Edmonston’s name was put on the massive pumps that lifted the water over the Tehachapis.

The key ideas were already contained in Marshall’s original Plan and had been the object of state water planning throughout the 1920s. The new beneficiaries — Southern Californian cities and suburbs — had rapidly growing populations and voting power too. The new project would build a huge dam on the Feather River, a major tributary of the Sacramento River. “Most of the system we know was laid out (in 1951): conservation of wet season flows behind Oroville Dam; an array of new pumps just west of the CVP ones between Tracy and Byron; and a great aqueduct linking the Delta not only with the San Joaquin Valley but also with metropolitan southern California” ^[24]. The “[…] Feather River Project differs from earlier plans. It follows the principle of the Central Valley Project as originally conceived by earlier state engineers, but it was designed to deliver water outside of the Sacramento and San Joaquin valleys, which was never envisioned in the Central Valley Project” ^[25]. (Griffith, 1955, p. 370). Importantly, there would be no restrictions on how the stored “project” water might be used. The big irrigators in the southern CV would therefore stand to gain from massive supplies of new water that would be passing through their territory, without any worry about acreage limitation on federal projects. Ostensibly though, these new supplies would be temporary and would attenuate with population growth in the southland unless new supplies were made available.

An important challenge was centered in the Sacramento-San Joaquin Delta, through which the state’s largest rivers flowed, and which would be heavily affected by any new scheme. The Delta had been a vast wetland when the gold rush began. As cities sprouted nearby its swamps were diked and drained, creating an archipelago of fertile “islands.” By the end of the gold rush, settlers on the rich Delta soils had established about 60 highly profitable islands among the various channels of the Sacramento and San Joaquin rivers. The newly drained farmland, however, immediately began to sink and compactify. Soon the island surfaces sank below the level of the rivers ^[26]. In dry periods (April to November and during droughts) reduced pressure from river water allows saltwater to move into the Delta, turning the water brackish and impacting Delta farms. In wet years severe floods could rip the dikes apart. For this reason the levees had to be continually reinforced and raised and this steadily increased the cost of farming ^[27]. Water projects of the kind first proposed by Marshall would divert much of the river flow downstate, and put additional stress on the levees to keep sea water out of the Delta farms.

One way to fix this was to build a physical sea barrier keep saltwater from moving up the rivers. This would not really help to protect from floods however and it would be very costly to build the massive wall that would be needed. State Engineers settled on a cheaper option. They would build large upstream impoundments in order to stabilize flows on the rivers to keep saltwater out of the Delta during dry periods (April through November and during droughts), a prevent flooding in wet years. The same technique has been used by Southern California engineers: engineering water pressure to prevent saltwater incursion into freshwater wells. The reservoirs were to be large enough to absorb floodwater and to maintain flows even during prolonged droughts ^[28]. In 1930, the California state water plan adopted the freshwater barrier solution. “[…] the state water plan called for construction of a 420 foot dam at Kennett [Shasta] to maintain a regular flow to Antioch, keeping salt water out of Suisun Bay. The California Legislature authorized the future Central Valley Project as a state project in 1933. The act authorized the sale of ‘revenue’ bonds not to exceed $170 million” ^[29]. It was a win-win situation: Southern CV farmers would get their irrigation water and the Delta would be saved.

By the late 1950s the population-based State Assembly could be counted on to support the project. The chief obstacle to the plan was in the northern counties, which stood to lose water. Until the reapportionment decisions in the early sixties, the state senate was apportioned by country which advantaged the (relatively unpopulated) northern and rural parts of the state. It was not going to be easy to find a compromise that the Senate could accept. Not surprisingly among the (State Water) project’s most ardent supporters were Southern California developers, who were eager to get a share of water to fuel postwar growth ^[30]. Supporters also included representatives from the Southern part of the central valley, which stood to receive the early water deliveries until the massive pumps and tunnels could be built and southern California demand filled out (Nie, 1998). Prior to the project, much of the western parts of the valley lay fallow for lack of water. The federally funded Central Valley Project watered land to the north and east, but not much reached the southwestern portion of the San Joaquín. As a result, groundwater was being overdrafted and poor-quality recycled irrigation water was poisoning large stretches of the southwest CV. Any expansion of farming and land development would require importing water for irrigation. Anyone owning a large tract of land without a steady water source stood to receive a windfall if a reliable source of water was provided ^[31]. One reason the State Water Project was supported by the state’s large landowners was it allowed them to circumvent the Bureau of Reclamation’s 160-acre limitation. SWP water would eventually produce increased growth and development in southern California.

When Governor (Pat) Brown took office after the Democratic landslide in 1958, there had already been several failed attempts by previous governors (Earl Warren and Goodwin Knight), to get the project started. Despite favorable reports by State Engineers, there remained a great deal of resistance from northern California “counties of origin,” which stood to lose water. They allied with senators from the Bay Area as well as from the Delta. More opposition came from environmentalists worried about the negative impact on water quality and wildlife. The power companies (PG and E and SoCal Edison) were also opposed to the public power aspects of the plans, which threatened to undercut their business if the state were to market cheap power directly. Support for the plan was very strong in Southern California. The split between the north and south was already clear. It was not obvious, however, where the boundary line was between supporters and opponents. Which side would central valley farmers take?

The critical showdown took place in the state Senate. Brown enlisted Fresno Senator Burns to sponsor the legislation. Burns’s job was to help broker details important to CV farmers (especially by refusing to allow an acreage limitation in the legislation) to keep the big farmers inside the coalition. “Brown could count as certain the eight southern California votes. In addition, he had [senator] Burns and several senators from northern and Valley counties which stood to gain directly from the FRP, especially the Oroville Dam Project and the San Luis Reservoir Project” (Grody, 1978, p. 299). He also reassured the power companies that they could buy publicly produced power directly for resale and offered other reassurances to county of origin interests.

Brown refused, however, to give southern Californians the constitutional guarantee of water rights that some had demanded. Brown argued that the subversion of traditional water rights was a sticking point to northerners but it was really meaningless. He pointed out to southern Californians that the population weight of the state had already shifted decisively southwards, and (with more water to permit real estate development) would continue to do so. Southern Californians, he argued, did not need the constitution to protect their rights to water; political muscle would be enough. The important thing, he argued, was to get the project off the ground and especially get it through the malapportioned State Senate. After that, southern California could protect itself.

The governor’s assurances did not, however, appease the northerners. “Definitely against the measure Brown probably could count the fourteen senators from northern mountain counties of origin and the Delta. Everyone else was ‘fair game’ and Brown has indicated that, with some of these remaining senators, he ‘begged, pleaded, urged, and cajoled’ to get votes and divided the opposition sufficiently to start the big projects” (Grody, 1978, p. 298). In the end, Brown succeeded in dividing the opposition, not by breaking the North–South cleavage that had threatened the Project from its earliest days, but by moving the critical line dividing supporters and opponents, northwards into the Central Valley where Fresno Senator Burns was the pivotal player. The crucial next step remained: to convince the public to agree to a massive bond issue to finance the Project.

The (State Water) project was placed on November 8, 1960, ballot as a proposition in the general election. “[…] the governor made public statements which were heavily laced with detailed explanations of how much money was going to be spent in different parts of the state as a result of the water development program. The implication, of course, was that the economy of various parts of the state would be materially benefited by passage of the bond measure. In his appeal for public support, the governor was not relying alone on the public’s acceptance of some general abstract concept of ‘public benefit’ in the long-term, but rather he was attempting to gain public support for his program by detailing specific practical economic benefits” (Nie, 1998, p. 76).

It is not clear that Governor Brown’s “distributional” campaign persuaded anyone. In the end, “Northern California counties almost unanimously rejected the bond act, while support in the south was very strong. In fact, the farther south one went, the stronger was the bond’s support. But Brown’s strategy was not a total failure. Indeed, the only northern county that supported the act was Butte, the proposed future site of the Oroville Dam” (Nie, 1998, p. 76). Butte county looked forward, no doubt, to generations of construction jobs. Perhaps as telling in regards to the project’s enactment were the significant campaign contributions given for the passage of the Burns-Porter Act referendum. Receipts obtained show that those that did make large contributions (over $1,000 in 1960 dollars) had much to gain from the bill’s passage, either in the form of direct land development or southern California growth as a whole. Thus, it was not only large landowners that gave generous sums, but so too did construction interests that were tied into the further growth and development of southern California. In the end the referendum narrowly passed and it is hard to say whether appeals to public or private interests were most important. Clearly appeals to either did not persuade Delta farmers or county of origin voters to support the project. But, for all they may have trimmed the negative margins sufficiently for statewide passage.

The Feather River Project, while it was a great political success for Pat Brown, had a pyric aspect. Its passage amounted to only the first component of the projected State Water project and provided for only about 60% of the planned water for the Southland. Moreover, about a quarter of that water was “given” (sold at very low rates) to Southern CV farmers on a temporary basis. The expectation was that the farms would use the water to produce field crops that would not require long term water commitments. This, of course, is not what happened. Whether it was planned or not, many farmers in the area planted orchards. Possibly they thought (probably correctly) that they would have the water for long enough to make the trees pay off. They did not stop planting trees and they have not stopped yet: instead of peaches and apricots, now they plant almonds, pistachios, and walnuts. The bet that farmers made is that that the state will recognize at some point that they have a permanent claim on SWP water no matter who made promises in the past. It is not so clear that is a winning bet.

By the 1950s it would have been evident to everyone that both federal and state projects would have to run through local water districts. These governmental units had come a long way from their populist roots in the late nineteenth century. The creation of water districts had been a political response to the outcome of the Miller–Lux Litigation that upheld riparian rights in California. Despite the fact that both litigants controlled vast agricultural businesses the result was popularly understood to favor rich land monopolists. The political reaction was fierce (mostly financed by some of the same landed interests) and resulted in the creation of irrigation districts. The Wright Districts began life as state chartered cooperative units which were to allow small farmers to band together into legal entities — water districts — in order to compete against the massive agricultural empires. These districts were given powers to tax and to use eminent domain. And, crucially, they were governed by majority rule among the residents of the district.

Large landowners, like Henry Miller, worried that the powers given to the Wright Act commissions would allow local majorities to impose unwanted projects and assessments on them. In other words, extort and expropriate. A resident of the Sacramento Valley asked cogently “[…] is it right for the many men of small holdings who generally hang around those little villages and the men with no holdings at all, except a cigarette holder, to waltz up to the polls on election day, and cast their vote, and thereby become dictator to the man with his thousands of acres of land?” ^[32]. Suits were soon brought in state and federal courts arguing that Wright districts were “taking” property without compensation. The flaw in the Wright scheme was that “The districts’ encountered problems in selling their bonds, filling their reservoirs, and fairly allocating water.” Most of the Wright districts failed very quickly: “49 districts were organized of which 26 went beyond the point of organization and seriously attempted to function […] only 8 of these have survived […] 6 of the 8 having […] financial reorganizations” (Hutchins, 1931, p. 72). Of the 2,000,000 acres of irrigable land in the original districts, no more than 200,000 acres were put under the ditch by Wright Act districts.

That might have been the end of the water district in California. But political climate changed and “Under pressure from large landowners, California amended the Wright Act in 1897, stopping the establishment of irrigation districts until the formation of the Irrigation Districts Bond Certification Commission” ^[33]. The new Commission was given certification authority over bond issues, requiring that project benefits and assessments be allocated in proportion to acreage and requiring that project benefits exceed costs. The amendment made districts investable as landowners could no longer be threatened with expropriation. Within a few years, a flood of new districts was organized and many of them evolved to permit industrial farming at very large scale.

The Bureau instituted the process of contracting with districts instead of individuals in 1926. Half a century later the state project adopted the same policy for distributing project water. By the 1970s Democratic congressmen and presidents had become skeptical or even hostile to the interests of large-scale agribusiness. The shifting winds in Washington, after Watergate, were no longer favorable for big farms. They had to spend lots of money and effort to defend against political assaults on their traditional practices and to keep hold of benefits they had long enjoyed. Big farms, therefore, increasingly sought to get the state of California, which had been more responsive to farm interests, to take over the lead role in irrigation policy. A state program would be managed by local water districts which were usually controlled or at least strongly influenced by big local landholders ^[34]. The Westlands Water District became the poster child for agribusiness.

Westlands was such an egregious case that it has been repeatedly revisited by journalists and academic commentators. In her study of the long struggle over the Reclamation Reform Act, which was finally enacted in 1982, Anna Hackenbracht notes that “The debate about the acreage limitation provisions surfaced again when Congress considered legislation to build the San Luis Unit of the CVP in 1959. The San Luis Unit was the portion of the CVP that would deliver water to the Westlands Water District” (Hackenbracht, 1992). The San Luis project was a joint project of the Federal (CVP) and state water projects that would impound waters from both sources and permit distribution to Valley farms, the largest of which were on the West side, including Westlands. The devices employed to evade Bureau rules were notorious by that time. Once San Luis unit was approved the Bureau of Reclamation drew up a contract with Westlands, which specified who could receive project water.

Senate Hearings were held in 1964 to review the contract. “At the hearing, several issues were raised. The primary one was voiced by critics who charged that ineligible lands were receiving project benefits ^[35]. When reclamation water was delivered to eligible land, some of the water would percolate through the soil into the groundwater table. This action increased the supply and level of the groundwater which produced a benefit in the form of reduced pumping costs for anyone (eligible or ineligible) who wanted to pump the groundwater. As long as some landowners signed contracts and received water, the benefit from the groundwater recharge was a disincentive for others to sign contracts” (Hackenbracht, 1992, p. 59). Not surprisingly, most Westlands owners were not signing the new contracts. “[…] in 1965, only 2,800 acres out of 403,900 acres of excess land had been placed under recordable contracts while the 240 landowners who owned the 401,100 acres balance had not negotiated reclamation contracts” (Hackenbracht, 1992, p. 62). The Bureau’s initial response was to ignore the fact that contracts were not being agreed to, saying that use of percolated water was “unavoidable” and so there was nothing that could be done about it. Later it backed off that position and proposed to pump a groundwater amount equivalent to the (estimated) percolated amount (at government expense). No one was really convinced by these maneuvers.

In 1966 Senate hearings, Senator Gaylord Nelson complained that “In the intervening years since the inception of the Westlands Project, there have been some significant indications, it seems to me, of a lack of intent to divest excess lands.” (U.S. Congress, Joint 1975, 631). Nelson’s complaints went largely unaddressed until new Senate hearings were convened in 1975 which he chaired with Senator Floyd Haskell. By that time, “The Senate had data from the Bureau of Reclamation about the excess land sales that had been approved in Westlands as of June 1975. The information showed that nearly 100,000 acres of excess land had been sold to about 800 purchasers. Eighty-six farming operations from the land were formed, indicating that the purchasers were not farming separate, 160-acre parcels, but combining their individual portions to form a large unit” (Hackenbracht, 1992, p. 64). In other words, the size of an operational farm was far larger than the size of legally owned farms. It was plain enough to Senators and anyone else who paid attention that Westlands owners had no intention to comply with the acreage restrictions but that they still fully intended to continue taking water nevertheless.

The farmers argued that the restrictions in the Act were completely unrealistic and needed to be changed. This belief had been encouraged by leaders of the Bureau for years. In 1933, for example, Interior Secretary Ray Lyman Wilbur ruled (at end of his term) that the 160-acre limit did not apply to the Imperial Valley. Bureau practices elsewhere at that time conveyed the same message: officials would not enforce the acreage limit on its projects. Wilbur was a conservative Republican, appointed by Herbert Hoover, and he served at a time when the Bureau of Reclamation was enjoying a renaissance while building a massive project on the Colorado River. Part of the rebirth had been founded on the realization that the Bureau could pursue its core irrigation mission if its dams included hydropower generation. It was already clear that irrigation schemes could never pay for themselves. The Bureau, if it was to survive and grow, needed to build multipurpose dams. Hydropower soon financed irrigation completely ^[36]. Wilbur’s successors as Interior Secretaries or Commissioners of the Bureau, of both parties, accepted his commitment to multipurpose projects. The Roosevelt administration immediately authorized huge multipurpose projects on the Columbia, Sacramento, San Joaquin, and Tennessee Rivers. The Bureau had become, in effect, a power generation agency. Maybe the Bureau should have changed its name.

Still, irrigation remained nominally the Bureau’s core mission, as well as its foundational ideological commitment. The Act’s acreage and residency limits could not be abandoned even if they would not be enforced. Even Harold Ickes, Roosevelt’s first Interior Secretary — a man who harbored little love for giant agribusinesses — did not rock this boat. But Ickes was overstretched and he chose to leave irrigation matters to his bureau chiefs. These were usually very able men: chief among them were Michael Straus and Floyd Dominy. As we have seen, from the 1930s, the Bureau faced competition from the Army Corps of Engineers. This was so for two reasons. First, Corps projects were not subject to the restrictions of the 1902 Act. Second, the Bureau was required to bill its users for water it provided for irrigation. The Corps could build projects for flood control or navigation and could regard any irrigation water as incidental those benefits so that recipients need not be charged anything. Of course, the Corps might not be able to justify building canals to transport that water, while the Bureau’s irrigation mission permitted irrigation canals and associated works. Recipients would probably need to be billed for these constructions. But then, if a private user were to build his own aqueduct, it might freely transport Corps water to its own property and might even be able to exclude others from access.

We have already met Michael Straus and seen his practical side in devising the technical compliance formula, which effectively excused the Bureau from enforcing the acreage limitation. It is not clear how far his formula was supposed to extend. “[…] the State Grange, organized labor, veterans organizations, consumer cooperatives, and church groups […] view ‘technical compliance’ as little more than a cover for the Bureau of Reclamation’s surrender on this issue […] The Bureau of Reclamations actions increasingly identified it with the interests of commercial agriculture, not the family farm […]” (Gahan and Rowley, 2012, p. 658). It would certainly cover the case where a wife and dependent children each acquired 160 acres parcels to add to that of the head of household, so that holdings of more than a thousand acres might qualify as non-excess lands. But what about leaseback arrangements which, if allowed, would permit far larger farms or farm operations? This would seem a matter of interpretation that might be pushed down to regional administrators deciding individual cases. Like Ickes, Straus had been a newspaper man with strong populist leanings. Probably he regarded technical compliance as a pragmatic accommodation and may have recognized its hypocrisy when applied to agribusiness.

Floyd Dominy came from a very different background. He was born on a 160-acre homestead in Nebraska with no indoor plumbing. The farm failed while he was still a boy and he grew up in Hastings Nebraska. He had personal experience as a farmer and earned college degrees in agriculture and economics. He started in government service as a county agricultural agent in Wyoming during the New Deal, joining the Bureau after the War. Dominy rose quickly from the ranks to head the Bureau under four presidents (1959–1969). His ascent was not always smooth. He had strong views and sharp elbows and he pushed his way to promotions and increasing authority. One thing stands out; his belief in the Bureau’s mission to use the power of the federal government to advance the interests of the small farmer — people like his father and grandfather who had homesteaded dryland Nebraska and struggled with weather and water. When he shoved someone aside it was because he saw them as incompetent, lazy, or duplicitous. He became legendary at the Bureau for his ruthless energy, and especially for his ability to manage congressmen. He had no hesitation in using his congressional allies to sidestep his bosses, other federal or state agencies, and even other congressmen and senators who stood in the way of his policies.

Reisner (1986, pp. 247-248) claims that when he first joined the Bureau, Dominy had been scandalized to learn that big agribusinesses were getting water reserved for small farmers: “In the early days, Floyd Dominy had been something of a crusader […] Bureau water was by far the cheapest in the West […] if you could manage to irrigate enough land with it […] you could get rich […]” Maybe, however, Dominy went on to say, legally “[…] you could irrigate 160 acres no more ‘We didn’t even want them to irrigate that much […] the law was created to pack as many farmers in as possible in a region with limited water […]”’ Reiser may have been right to say that this was Dominy’s view before he became Commissioner (in 1959). But by the time he became the Commissioner, Dominy showed little interest either in the family farm or in maintaining the 160-acre limitation on cheap water. Maybe he recognized pragmatically that the Bureau was not going to enforce the acreage limit and it was futile to insist on it. Or Dominy perhaps in his early days at the bureau was simply regurgitating official policy. He may have had no principled attachment to the acreage limit at all: it was the law and ought to be enforced or changed. After he retired, Dominy insisted that “I made it plain […] that it was the Bureau of Reclamation’s responsibility to either (a) energetically enforce the law or (b) ask Congress to repeal it” (Reisner, 1986, p. 249).

I think Dominy probably changed his mind about acreage limits. It is not clear why. Here is his story. When federal reclamation began in 1902, Dominy recognized that it was basically a subsistence program. By the 1960s, the rural standard of living had changed dramatically. “[In 1902] Those guys didn’t think a farmer should have indoor plumbing or electric lights, for heavens sakes. They didn’t think their kids should go to college or to the dentist. They were subsistence farmers. That’s all a farmer was supposed to do in 1902 was live, exist. Not prosper, but exist. That’s the origin of the 160-acre limit and all that crap.” (quoted in Pisani, 2002) ^[37]. While the term “crap” can be interpreted in various ways, it seems likely that, by the time they became leaders of the Bureau, neither Straus nor Dominy retained a deep ideological or principled attachment to the specific acreage limits in the 1902 law. Each may have thought that they should be enforced as long as they remained in the law — Dominy, more emphatically than Straus. But each thought the law needed changing.

Dominy’s recollections seem too ornate. His epiphany seems more like a result of what is called Miles Law (named for a legendary Agriculture Department administrator, Rufus Miles): “where you stand depends on where you sit.” Dominy’s authority as a leader of the Bureau depended on his going along with Straus’ views. Indeed, in Dominy’s Oral History, he expanded on his views: “[…] here’s the administrators at Reclamation supposedly enforcing a 160-acre limit that has no applicability to the circumstances under which they’re now existing. So, Mike Straus came up with the commingling-of-water theory. Here’s a guy irrigating 10,000 acres out there, and we come along and give him some more water. Well, we can give him 160 acres worth of additional water under the law. We can give his wife 160 acres of additional water under the law. We can give each of his kids, because it’s 160 acres per individual. So this is the kind of nonsense that we began to live with, and it was nonsense, complete nonsense” ^[38]. It remains unclear, from this passage, that Straus (or Dominy) intended the “formula” to exempt businesses from acreage limit or, more likely, to let the small farmer get cheap federal water for 1000 rather than 160 acres.

Things began to change in the 1960s under the Kennedy and Johnson administrations. The public had become increasingly aware of ecological issues and Democrats had begun to tap into that sensibility. In 1966, Secretary Stuart Udall reversed Wilbur’s opinion, and signaled a willingness to start enforcing the acreage limit (as well as the residency requirement). There was a new sheriff in town and he intended to enforce the laws. Udall asked the Justice Department to bring a suit to clarify the issue. The district court, however, ruled against the administration and the Solicitor General declined to appeal the ruling. That was not, however, the end of the matter. In his oral history, Floyd Dominy put a different spin on this episode: “I remember when Stewart Udall became Secretary, coming from Arizona, it was going to delight him if he could suddenly stick the Imperial Irrigation District in California with a 160-acre limit. And he had a solicitor from Arizona. (laughter) Now, of course, there was no question in my mind but what the Imperial Valley of California should have lived under the 160 acre limit just like everybody else, but they had a Secretary of Interior from California [Ray Wilbur] at the time that Hoover Dam was built and the All-American Canal was built, who said it doesn’t apply because these guys are already here and they’ve already been developing water. Of course, the Hoover Dam and the All-American Canal is what made it possible to exist and expand” ^[39].

As it happened, over the next few years, a series of appellate courts ruled that the 1902 acreage limit was good law and that it applied to Bureau projects generally ^[40]. It was revealed in 1975 Senate hearings, that the Bureau actually had no published rules or regulations concerning the sale of excess lands. In testimony before the committee, agency leaders defended the practice of deciding cases concerning acreage limit, excess lands, and residency case-by-case without publishing guiding rules. A suit was filed to force the agency to undertake rulemaking in this area. When the plaintiffs prevailed in that suit the Bureau began rulemaking proceedings. Two things had become clear by the mid-1970s. First, whether or not the acreage requirement was economically realistic, it was the law and there was a real chance that it would be enforced. Second, the issue had become partisan. Though the Interior Department Bureaus might still be occupied by pragmatic westerners, the Secretary and the Bureau chiefs were now partisans and were beholden to their president and his party line.

With the arrival of a new Democratic administration in 1977, serious attempts got underway to revisit the text of the 1902 Act and to revise its rules in a way that they might actually be complied with. Reform efforts were to be guided partly by Jimmy Carter’s Interior Secretary, Cecil Andrus, former governor of Idaho, who combined political skills, experience with farm issues, and the confidence of the President. In August 1977, the Bureau published preliminary rules that were clearly aimed to break up the cozy arrangements in Westlands (among other places). The rules required that purchasers of excess lands live on the land or nearby; multiple ownerships and trusts were not permitted; the Department of Interior would retain continuing supervision over excess lands after sale; limitations were imposed on leasing; private sales were prohibited and a lottery would be used to match buyers to sellers ^[41]. If these rules to become final (and actually be enforced), they would have forced substantial changes on Westlands and throughout the West.

Not surprisingly, western farm interests exploded in opposition. “The opponents (water districts, agricultural organizations, and local governments in the West) organized to block the regulations. Several court suits were filed against the Department of the Interior to enjoin the government from continuing with the rulemaking process until it had completed an environmental impact statement (EIS) on the effect of the rules […] Several western Senators had introduced legislation to delay the implementation date for the new rules. Senate Joint Resolution 96 would suspend the regulations for one year. Senate Joint Resolution 93 went further and required that for one year the Bureau could not withhold water from reclamation projects or administer excess land sales” (Hackenbracht, 1992, p. 88). As congressional elections approached in 1978, the Carter administration recognized that it had a problem in rural areas and especially in the West. Administration officials began to try to find a more conciliatory line to try to limit the damage in the midterm elections ^[42]. It was a bit late for that.

Efforts began both in Congress and the Administration to do as Dominy had advised and revise the 1902 Act. Over 30 bills were introduced in 1977 which represented two distinct blocs. In 1978 the Senate Committee on Public Lands convened hearings to try to sort things out. “Those testifying agreed that the reclamation program should be modified. They also agreed that the program should benefit family farmers, not corporations, investors, or speculators. But there was substantial disagreement about the degree of change necessary, what changes should be made, and why. [Senator Gaylord] Nelson (D — NH) urged that while the acreage limitation should be large enough to provide an adequate living, it was critical that it be small enough so the subsidies would be widely distributed (U.S. Congress, Senate 1978, 227). Senator Hayakawa (R-California) argued that the subsidy should be removed and recipients should pay a price that more closely reflected the actual cost of providing the water, also called ‘full price”’ (Hackenbracht, 1992, pp. 90-91).

A compromise seemed possible. Congress could enlarge the acreage restrictions to a more reasonable level and remove some restrictions on serving excess lands, but require that big landowners — agribusinesses like Boswell and Salyer pay the full price of the water they received. Neither side would get everything it wanted. Small farmers would continue to receive subsidized water. Reformers would accept that western farms might have to be bigger than contemplated in 1902, but excessively big farms, those over whatever acreage limit remained in the reformed Act, would have to pay more — a lot more — for water than they were currently paying and much more than farms in compliance with acreage limits. The new statute would also seek to close the various loopholes in the law that permitted lease-back arrangements which allowed big farms to sidestep any acreage limit altogether. Whatever final Act was agreed to in Congress, however, it would still need to be implemented in rulemakings conducted by the Bureau of Reclamation. And the Bureau had never enforced acreage or residency provisions and often seemed to seek out ways to accommodate the big farms. Still, with Carter and Andrus in place and Democratic Congress, there was hope that the Bureau might be willing to get on board with the new legislation and write tough rules. And, enforce them.

Agribusiness lawyers were well aware that some Bureau officials were sympathetic with acreage limitations even if they were unsure whether they could be enforced. Since Stuart Udall served as Interior Secretary, Democrats had generally been inclined to find ways to enforce the limits. Jimmy Carter and Cecil Andrus, as Interior Secretary, seemed to favor enforcement as well. But Congress was less single minded than the President and there were many who favored continuing lax enforcement policies. Moreover, some people favored enshrining current practices in legislation, just to put the issue to rest. In fact, Boswell–Salyer lawyers had actually tried, early in Carter’s term, to sneak a bland seeming rider exempting Pine Flat from the limit, into another bill. This maneuver not only failed but it bought them new opponents, including California Republican Senator Alan Cranston, and a local congressman (John Hans Krebs, D. Fresno), both of whom resented Boswell–Salyer’s underhanded methods. Boswell–Salyer representatives then tried, belatedly, to convert Secretary Andrus to their cause: an effort that seemed likely to fail as Andrus by that time had publically committed himself to acreage restrictions. Agribusiness lawyers knew, of course, that the Democrats would not be in office forever and that a future Republican administration might take a more favorable position. But this was in the early years of Carter’s administration and probably too early to try to run out the clock. Something had to be done soon to slow the momentum for reform and enforcement.

Salyer and Boswell disagreed tactically on their next move. While Salyer urged a political campaign to mobilize congressional intervention, Boswell’s lawyers were confident that the Supreme Court would reverse administration efforts to enforce the acreage limits. They were shocked when “In February 1977 […] The Supreme Court declined to hear the Tulare Lake case, letting stand the appeals court ruling that the 160-acre limit should be placed on the lands fed by Pine Flat Dam.” At this point the only possible tactic was congressional; to get Congress to revise reclamation law to remove the limitation at least as applied to the Pine Flat Dam. After the 1978 midterms, the course they settled on was to ally with other water interests across the nation and attempt to enact an omnibus bill to amend the Reclamation Act. Boswell and Salyer immediately set up and funded new interest groups, established a PAC, and fielded a team of lobbyists. They supported proposals discussed in the Senate and the House which placed some limits on how much acreage could be owned  — usually 960 acres but with some flexibility depending on the bill. The crucial issue however was leasing which was widely recognized as a way to sidestep acreage limits altogether.

In the House Bill (HR 6250), “The leasing limitation was the most controversial part of the bill. The Interior Committee first voted for unlimited leasing. But the Administration strongly opposed the provision, ‘[…] claiming that the 960-acre limit on ownership was rendered meaningless by the unlimited leasing provision […] Many legislators outside the Committee also opposed the provision and they warned that without a leasing limit, ‘the bill would have little chance of passage on the House floor […]’ (Congressional Quarterly Almanac 1980, 598).” The House bill emerged with a limit on leasing — 2400 acres — and it pleased no one. Phil Burton (D. CA) said at the time that the bill stinks. No doubt he saw it as a plain giveaway to agribusiness. Both House and Senate bills mostly exempted Imperial Valley farms from the acreage limits and most also abolished residency requirements. Agribusiness thought the leasing limit remained much too tight. The Interior Committee Chair, Morris Udall hoped for improvement on the floor. With such divisions, however, the prospects of successful passage were slight.

The proposed legislative vehicles had many moving parts and the congressional strategy was risky for the Boswell and Salyer. By tying their “little” exemption to an ambitiously broad reform package the fate of Pine Flat water would be linked to allies that Boswell and Salyer could not really trust. There was always the risk that their exemption would be cut out of the package in last minute bargaining. By that point there was really no other option to the omnibus strategy. Boswell-Salyer lobbyists managed to neutralize Senator Cranston: he decided not oppose their exemption in the Senate. In the end, however, despite the best efforts of the Boswell–Salyer team, the omnibus package finally died of its own weight in 1980 as the last Carter Congress petered out. Maybe that is what Boswell and Salyer had secretly hoped for all along.

However, the outgoing Carter Administration left a parting gift to agribusiness. Cecil Andrus, who had long been strongly opposed to the Pine Flat exemption, reversed his position after a visit to the Tulare Lake farm. No one saw that coming. In fact, however, Andrus had already signaled his weakening support for existing acreage limits in 1978 congressional testimony: “Appearing before a Senate subcommittee, Cecil D. Andrus, Secretary of the Interior, said that the Administration intended to honor the intent of the 1902 Reclamation Act, that cheap, subsidized irrigation water be available only to family farmers who live on or near their land.” He pointed out however, that “[…] the 1902 act’s restrictions, which for the most part have not been enforced for 50 years, do not in all cases provide enough acreage for a modern farming operation, Mr. Andrus said” ^[43].

It probably should not have surprised supporters of acreage restrictions therefore when suddenly, in 1980, Andrus dropped the bomb: “[…] in a move that caught other Interior Department officials by surprise […] Andrus […] changed his mind after visiting the area in early summer, following a suggestion by House Interior Chairman Morris K. Udall (D-Ariz.), who had visited there previously. Seeing the area, he said, he decided that federal denial of water to large so-called excess landholders would also curtail service to about 46,000 smaller farmers who could not operate without the water. ‘Mo Udall asked for my opinion and I held off answering until last week because I didn’t feel the bill was going to move,’ Andrus said. ‘It was a judgment call and I have no apologies to make. There’s nothing clandestine about it.’ The secretary’s flip-flop, if converted to law or federal policy, would free Kings River from the present law’s 160-acre limitation or any of the variations now being discussed by Congress” ^[44]. Andrus ended by saying that if the big farmers in the lake bottom were to let the Kings River run wild, it would no doubt “impair the productivity of the small farm operations that are upstream of the Tulare Lake basin.” To do anything other than grant an exemption on the Kings therefore “would be irresponsible and would most likely jeopardize the many small operators to get at a few large operators.’ Andrus’s traditional allies were dumbfounded.” (Arax). The ground was cut out under congressional liberals as well as Bureau supporters of the 160-acre limit.

Andrus’s backflip did not save congressional legislation in 1980. But, two years later, with President Reagan in office, and pro-agribusiness appointees leading the Interior Department, it was to prove a godsend for big farms. The Boswell/Salyer lobbyists reported that “Andrus’s acquiescence ‘changed the whole course’ of the debate. It was “major, major, major […]” “For Boswell and Salyer, it was difficult to overstate the importance of Andrus’s turnabout. Most Republicans, including the incoming Reagan administration interior secretary, James Watt, already were on board or soon would be. And now, how many liberal Democrats were going to attack a provision that Cecil Andrus had seen the wisdom of?” President Reagan signed the Reclamation Reform Act (RRA) in 1982 with the Pine Flat exemption. It had taken nearly forty years but finally, it seemed, the limitation was killed. The historic attachment of reclamation with the small family farm was finally severed. RIP! Well, maybe not quite.

The RRA did not completely abolish the acreage restriction: it raised the limit from 160 to 960 acres, a limit that might work for many Westfield owners but one that it would be hard for Boswell–Salyer to squeeze under. Large farmers were also required to pay the full costs of all waters received on lands exceeding the 960-acre limit. Hope for acreage limits was not yet lost. According to Hamilton Candee “[…] there was reason to believe that the Reagan administration would work to uphold the RRA, and that irrigation subsidies at long last would be limited as Congress originally had intended. For example, when he first came into office, Interior Secretary James Watt ordered a cessation of water deliveries to the Westlands Water District by the end of 1981 unless that district agreed to pay a higher price for its water.” (Candee, 1989, p. 664). This view proved naïve.

“Unfortunately, the Reagan administration’s commitment to end water subsidies proved short-lived. The last six and a half years have shown that the Bureau’s approach to enforcing the acreage limits and pricing requirements of the RRA is as recalcitrant and politically controlled as was the traditionally lax enforcement that led to the adoption of the RRA in the first place.” (Candee, 1989, p. 664). Candee goes on to argue that the knife was stuck when the agency was charged with implementing the statute: “In […] rulemaking proceedings a clear pattern emerged. Proposed rules were issued providing for relatively vigorous enforcement of the Act. Then, following extensive pressure by water lawyers and agribusiness lobbyists, the Bureau published a set of final rules, which acceded to the growers’ complaints on virtually every significant issue. In so doing, the Bureau has adopted rules that defy the clear intent of the RRA” (Candee, 1989, p. 669).

Congress intended to continue subsidizing small farmers but expected that all users would have to pay at least the cost of operation and maintenance. Large farmers, whose holdings exceeded 960 acres, were to pay the full cost of the water (including capital and interest). These changes were to be implemented by requiring that the district contracts with the Bureau of Reclamation be amended. The cost gaps were very large. “[…] full cost rates are much greater than full O & M rates. For example, the full cost rate in the Kanawha Water District in the Sacramento Valley was calculated in 1987 to be $52.62 per acre-foot, in contrast to a rate of $11.42 for O & M plus capital costs that excludes interest (also called the ‘cost of service’ rate). Similarly, the full cost rate in the Arvin-Edison Water Storage District in the San Joaquin Valley was calculated at $48.69 per acre-foot, while the cost-of-service rate was only $12.47 per acre-foot” (Candee, 1989, p. 667).

As large as this gap was, it did not fix the price that large growers would actually have to pay. Large farms had sometimes managed to evade acreage restrictions by dividing title among (often distant) family members or by selling parcels with lease agreements in order to permit the large farm to continue managing the property. “For example, a 7,000-acre operation in Westlands previously operated under a lease would simply ‘restructure’ the leased lands into separate 960-acre parcels, each owned by a different business partner or investor, who then [would] collectively ‘manage’ the entire operation via a separate company that is owned or controlled by the same partners or investors” (Candee, 1989, p. 673). Congress sought to put a stop to this practice in the RRA: “[…] following passage of the RRA the lawyers and accountants of large-scale growers were quite busy creating new farm management arrangements. Bureau staff began to discover a disturbing pattern of reorganizations. Landowners began setting up what the Bureau considered questionable farm management arrangements in order to avoid becoming subject to the full cost payments applicable to leased lands” (Candee, 1989, p. 673).

Rules were proposed to put a stop to these practices “[…] by requiring that any such arrangement in which the farm manager or operator had any economic interest, direct or indirect, be treated the same as a lease.” This “[…] would have placed the burden on largescale operators to demonstrate that any operation in excess of 960 acres was not a lease” (Candee, 1989, p. 673). Neither of these provisions survived as final rules. “Perhaps the best explanation of the Bureau’s radical modification of its proposed rules was given by Bureau Commissioner C. Dale Duvall, in a briefing on the final rules to the National Water Resources Association: [W]e used somewhat the purposes of the Act to come up with the November rules […] That set of rules pretty well carried out what the Congressmen and the Senators said they were doing with that Act. Our new set of rules  […] are based upon an entirely different principle, and the different principle came as a result of our putting the November rules out on the street and coming out here in the West and sitting through fifteen agonizing days of workshops and hearings, wherein you people for the most part did that which, thank God, we are allowed to do in this country, you sat back on your heels and you bellyached […]” (Candee, 1989, italics mine) ^[45]. The result was that, despite the enactment of the RRA, and despite the relatively “faithful” efforts represented in the preliminary rulemaking, agribusinesses got everything they wanted in the final rules. They would retain unfettered access to subsidized project water on the same terms as they always had. In other words, as long as large agribusinesses controlled the channels of power through which water flowed, the inequities of the system seemed fixed in place. Because project water was distributed by the water district, remained a critical point of vulnerability in that system. Or at least so it seemed.

Water districts managed reshaped themselves into an instrument that was useful to large as well as small farmers. Equal voting in special districts was replaced with property weighted voting which allowed property owners to control the districts. A dangerous new constitutional question arose in the 1960s when the Warren Court opened a Pandora’s Box. In a series of rulings, the Court held that the one person one vote standard applied to legislative bodies generally (except of course to the US Senate in which apportionment was controlled by the Constitution). The most important holding was Baker vs Carr in which the Court ruled that population inequalities in elections were justiciable in federal courts and that individual voters have standing to bring suits ^[46]. It was not immediately clear at the time how widely that ruling would apply. Two years later, when the Court ruled that states had to apply the one man one vote principle to state senates as well as to state assemblies, it became evident that the Supreme Court was likely to look askance at voting inequality in elections to lawmaking bodies more generally.

The issue of voting rights in special districts had been ducked or ignored since the early part of the century with the demise of the original Wright Act districts, and state courts had not been receptive to claims for voting equality in water districts (Martin, 1975). But the Court’s holdings made it impossible to evade the issue any longer. A number of challenges were soon made to property-based voting rules in special districts ^[47]. The first case to reach federal courts was Thompson et al. v. Board of Directors of the Turlock Irrigation District, which was decided in 1967. The appellate court held that as water and irrigation districts did not exercise general “police” powers, they were not required to satisfy the one person one vote principle. At the same time, however, it held that the Turlock district had failed to make boundary alterations to respond to large shifts in population that had occurred over the previous half century: “The appellate court therefore affirmed, but modified, the [district court] judgment, ordering the Turlock Board to redraw the division boundaries so that they were as nearly equal in area and in population as practicable under pain of having the court do it” ^[48]. This was a small but important victory for the idea that at least some special districts were bound by equality principles.

For the next decade state and federal courts struggled with the question of how far the new one person one vote doctrine would apply. In California the question centered on special districts and especially on various kinds of water districts. The question was whether to regard such districts as special service providers (which could use whatever decision rule they found convenient) or as general purpose governments, in which each resident would be entitled to equal voting rights. The cases went both ways in lower courts until the question was finally decided by the Burger court, putting an end to the string of restrictive lower court decisions challenging the voting systems of storage districts.

Salyer Land Co. et al. v. Tulare Lake Basin Water Storage District, ^[49] centered, as many earlier cases had, on the actions of a large CV farmer — J.G. Boswell, once again — and decided matters in his favor ^[50]. Boswell had used his (property weighted) control over a local water district to block the efforts of his neighbor and nemesis (Clarence Salyer) and redirect Kern River water into Buena Vista Lake (and away from Tulare Lake), in order to protect his own lands from flooding. The question decided by the Court was whether property weighted voting practiced in the Storage District violated the equal protection clause. A three-judge district court declined to overturn the weighted voting system and Sayler’s lawyers appealed to the Supreme Court. The Supreme Court allowed this ruling to stand.

On March 20, 1973, the United States Supreme Court, by a vote of six to three, declined to intervene in the voting arrangements of a water storage district in California in delineating the applicability of the Equal Protection Clause. Per Martin (1975, pp. 26-27): “The six to three majority opinion delivered by Mr. Justice Rehnquist agreed the district provides none of the general public services ordinarily attributed to a governing body, and that its special limited purposes fall so disproportionately upon landowners as a group that restriction of the franchise was the sort of exception to the rule laid down in Reynolds […] Nor does the exclusion of lessees from the franchise violate the Equal Protection Clause since the landowner can assign proxy voting rights to the lessees as part of the contract. Weighing the votes according to assessed valuation of the land is not unconstitutional, the Court concluded, since expenses for massive projects are also levied in proportion to the land’s assessed value […]” The Court noted that a Storage District “[…] by reason of its special limited purpose and of the disproportionate effect of its activities on landowners as a group, is the sort of exception to the rule laid down in Reynolds […]” recognized by the Court in previous cases […] therefore […] the popular election requirements enunciated by Reynolds, supra, and succeeding cases are inapplicable to elections such as the general election of appellee Water Storage District” ^[51]. Justice Douglas, who was certainly no more sympathetic to Salyer than he was to Boswell, wrote a ringing dissent which was joined by Justices Brennan and Marshall: “These four [agro businesses] farm almost 85% of all land in the district. Of these J. G. Boswell Co. commands the greatest number of votes, 37,825, which are enough to give it a majority of the board of directors. As a result, it is permanently in the saddle. Almost all the 77 residents of the district are disenfranchised. The hold of J. G. Boswell Co. is so strong that there has been no election since 1947, making little point of the provision in […] the California Water Code for an election every other year” (Martin, 1975, p. 27).

The effect of the holding in Salyer Land was to ratify the principle that governmental agencies — state created and regulated entities — can be ruled in effect by property holders as long as the agency does not provide the kinds of “general public services ordinarily attributed to a governing body,” as long as “its special limited purposes fall so disproportionately upon landowners as a group.” It is not really clear what counts as “general public services,” in the majority opinion, but I take the expression as amounting to general police powers. It is obvious, however, that water storage and distribution require the provision of security, fire and flood protection, and of course election machinery too; and possibly other services that fall into this category as well. Nevertheless, because the districts do not (primarily?) exercise general police powers and because they deliver their benefits and costs to landholders in proportion to the value of their holdings, it is permissible to apportion decision-making authority to the landowners in the same proportion. Among its other implications, this seems to imply that if property holders are unable to cooperate privately to provide some benefits to themselves, they can create or capture a public agency with coercive powers (powers of taxation and eminent domain) to create the desired cooperative arrangements under the color of law. That agency may levy taxes on themselves of course but on others as well, directly or indirectly, and make other uses of state powers to achieve the common purposes of the property owners. In effect, the district may be regarded a kind of “gated community” located fully within the governmental domain ^[52].

By the early 1990s it was widely recognized that environmental groups were capable of playing in big-league water politics. Their sway was not limited to the courts but extended into Congress and the state legislature, as well as in the politics of initiative and referendum. The addition of environmental claims disrupted water politics, especially in California water. A new set of claimants — who advocated for rivers and habitats — increased the scarcity of an already scarce resource. Existing water usage and water rights were threatened. Traditional interests fought back in courts, legislatures and in the court of public opinion.

The state sought to find ways to get all the conflicting parties to the table and negotiate consensual agreements that might then be ratified in legislation. In 1994 two such efforts were launched. Both centered on the Delta: The Bay-Delta Accord and the Monterrey Agreement. The Delta has been the center of struggles over California water policy for many years. Normally, water impounded by the projects is released from April to November to keep back saltwater from Delta farmlands but a large quantity is kept in reserve in system reservoirs. In drought years, enough project stored water remained to maintain flows at a level sufficient to keep the Bay away from the Delta. Recent developments have put this assumption at risk ^[53]. In dry years “The combined yield of the two projects […] [may no longer be] adequate to meet the contractual obligations of the projects and provide the necessary releases to maintain adequate delta outflows […]” (Anthrop, 1982, p. 116). New (court backed) environmental demands for water to protect species’ habitat make the problem worse. The situation has been further compounded by the shift by CV farmers away from field to orchard crops which cannot economically be fallowed in dry years.

“In June 1994, two years after the historic California drought ended, [the federal government] and California signed an agreement to coordinate activities in the Delta, particularly for water quality standards. State and federal agencies, along with stakeholders, worked for six months to develop a science-based proposal for water quality standards, which then led to the signing of a document titled ‘Principles for Agreement on Bay-Delta Standards between the State of California and the Federal Government.’ This agreement is known as the Bay-Delta Accord, and it initiated a long-term planning process to improve the Delta and increase the reliability of its water supply” ^[54]. The Bay-Delta Accord was agreed to in December of that year by state and various federal agencies. It authorized the creation of a state agency (CALFED) whose mission was to coordinate the actions of various state and federal agencies in the effort to treat chronic water quality issues arising in the Delta ^[55]. These issues largely arose from the Delta being not only a delicate constructed ecology of reclaimed wetlands, but also the critical crossroads for water delivery for both the state and federal water programs. It created a collaborative research and decision-making process which was supposed to create a common vision for improving the Delta” ^[56]. The Accord sought to plan and reallocate “[…] further water supplies from both urban and agricultural users to environmental restoration projects” (Howitt and Lund, 1999, 1268). It was, basically a planning process that aspired to shift water policies.

By the end of the 1980s was already clear that the SWP would no longer be able to fulfil the water demands of its traditional clientele: the water contractors. This was partly because of the demand to leave water in rivers and streams and partly because environmental interests had prevented the build-out of the SWP itself. More demand; less supply. There was a recognition that sooner or later there would have to be a multiparty negotiation over what to do about the chronic water scarcity. “In the early 1990’s, a drought compounded the disparity between SWP supply and demand and disputes arose among the agricultural and urban SWP contractors about how the limited amount of water available should be allocated during shortages, particularly in drought years […]” And, as a result, the “[…] DWR and SWP contractor representatives engaged in mediated negotiations in an attempt to settle allocation disputes arising under the long-term water supply contracts. The negotiations grew into an omnibus revision to the long-term water supply contracts. In December of 1994, a comprehensive agreement was reached in Monterey, California, which came to be known as the “Monterey Agreement” ^[57].

The Bay-Delta and Monterey agreements structured negotiations over the new water situation in the state. While CALFED did manage to create a science program to study Delta problems, it lacked the power to guide political solutions. And, as it essentially required unanimity even to make recommendations, CALFED was usually unable to take positions, especially on important issues. Unlike CALFED, the Monterey Agreement had binding effects on water allocation. For that reason the negotiations over its details were especially intense. As finally agreed, The Monterey Amendment had six principal objectives: (1) resolve conflicts and disputes among SWP contractors regarding water allocations and financial responsibilities for SWP operations; (2) restructure and clarify SWP water allocation procedures and delivery during times of shortage and surplus; (3) reduce financial pressures on agricultural contractors in times of drought and supply reductions; (4) adjust the SWP’s financial rate structure to more closely match revenue needs; (5) facilitate water management practices and water transfers that improve reliability and flexibility of SWP water supplies in conjunction with local supplies […]” ^[58]. The Agreement also (6) authorized the controversial sale or swap of a state water bank program on the Kings’ river to a private party. Specifically, it “[…] required DWR to transfer the ‘Kern Water Bank’ property to Kern County Water Agency in exchange for agricultural contractors’ permanent retirement of 45,000 AF [in annual water rights].” The Water bank had been developed by government and compensation for the transfer consisted of junior water rights that may have had little actual value ^[59].

Fights about water have tended increasingly to turn (or return actually) to the courts. “Litigation has ousted collaboration as the dominant means of solving water issues,” says David Nawi, an attorney with Environmental Mediation in Sacramento, California. (Service, 2007, p. 445). The issues of most of the litigation concerned not CALFED (which was largely toothless) but the Monterey Agreement and its Amendment. In 1995, a suit was filed arguing that the Agreement had not been properly subjected to an environmental impact analysis ^[60]. The proceedings went back and forth and the “[…] conflicts reached crisis levels in 2007 when Judge Oliver Wanger of the U.S. District Court began issuing a series of rulings that operations of the CVP and SWP were jeopardizing Delta smelt and salmonids in violation of the ESA. Judge Wanger ordered the federal resource agencies to develop a new operations schedule for the pumps to reduce or halt water exports during key periods of time when the species are at greatest risk ^[61]. These restrictions, coming in the midst of a three-year drought and a deep economic recession, raised the prospect — perhaps for the first time in California’s history — that the state faced a true water shortage, with not enough to go around for the state’s people, farms, and fish. In the months that followed, a multitude of additional lawsuits were filed on all sides and the courts have increasingly been involved in day-to-day operations of the state and federal projects. California was losing control over its water” (Marsh and Prows, 2010, p. 39).

At the end of the nineteenth century reaction against the destructive pursuit of wealth produced both judicial and political responses ^[62]. Courts had put a stop to hydraulic mining and placed restrictions on water usage. Legislatures tried to limit the powers of agribusiness and to vindicate appropriative over riparian water rights. Progressives like John Wesley Powell, John Muir, Gifford Pinchot, Elwood Mead, and Theodore Roosevelt argued that natural resources needed protection from economic development. Most of these political and bureaucratic leaders urged policies aimed at conserving land, timber, mineral, and water resources so that they could be used more efficiently or kept in trust for future generations ^[63]. It was not clear what was meant by “efficiency” or what future uses there might be. Some recommended multiple use projects where conservationist goals might be harmonized by the managed use of environmental resources, balancing present and future interests. There were plenty of disagreements on issues like reclamation or forest management. Some versions of conservationism may even have positioned it within the boundaries of what might be called Jacksonian ideology, facilitating the (more orderly) settlement of the West by small family farms by preventing the overexploitation of the land and water. Others thought that goal was implausible in much of the west.

As the big water projects came online and water usage for irrigation surged, environmental problems began to surface all over the state. The Central Valley had effectively been managed as an enormous industrial farm system. It used cheap or undervalued resources wastefully and generated a lot of pollution in order to produce agricultural outputs. As the cost of environmental inputs (water, land, etc.) increased firms would be expected to adjust. Water prices were, however, kept (artificially) low for farmers, and there was no charge for air pollution. As a result, farming practices did not need to adjust. Water use and transfers within the state, moreover, impacted powerfully on species habitats — especially causing collapsing runs of salmon through the Delta, as well as the decline of the less glamorous smelt, as well as other fish sucked up by the pumps at Tracy. Farm interests did not bear these costs either. These problems were greatly magnified during drought years but farmers were able to use groundwater to avoid making more profound adjustments. Because economic signals (prices) were not guiding farmers environmental pressures have had to be exercised in courts or politics.

We no longer live in an era of optimistic conservationism. Environmentalists have increasingly favored preservation of ecologies as an end in itself. Leave the water in the rivers and wetlands; restrict urban and suburban sprawl. To the extent that it is possible some favor restoration and recovery of the natural world. Tear down dams to restore natural flows; restore wetlands; eradicate non-native plants and animals. Modern environmentalism has evolved into a political force in opposition to industrialization and, especially, the growth of industrial agriculture. To some extent, of course, the environmental issue emerged nationally and internationally in the 1960s independently from California’s water problems. The country was becoming increasingly skeptical of big government and big business. This was partly connected to the disgust with Vietnam war, no doubt, but partly also because of the tumult of civil rights and its backlash. The Democratic party was about to blow itself up over these issues and a new generation of ambitious political leaders appeared and began looking for new issues. And, at just the right time, Rachel Carson’s powerful Silent Spring focused national attention on pollution issues. It sold millions of copies. A new generation of political leaders began to see environmentalism as an issue that cut across old divisions, among them Gaylord Nelson (the organizer of Earth Day), Frank Church, Edmund Muskie, John Tunney and Republicans like Howard Baker. Encouraged by rising environmental groups and favorable public opinion, many climbed aboard the environmental bandwagon to push through powerful new national laws including the Wilderness Act (1964), the National Wild and Scenic Rivers Act (1968), the National Environmental Policy Act (1969), the Clean Air (1970) and Clean Water (1972) Acts, and the Endangered Species Act (1973), along with other laws concerning toxic substances, fertilizers and pesticides. Each of these statutes aimed at, and had the effect, of changing natural resource policy and, in effect, moderating or abandoning traditional pro-development policies that had been in place for a century or more ^[64]. All these laws were to have especially big effects in California which was the center of industrial agriculture.

It is important to see how profoundly “The emergence of environmental interest groups as a major competitor for California’s water […] radically changed the ‘iron triangle’ of agencies, urban users, and irrigated agriculture.” This alliance “[…] had synergistic goals and was responsible for development of the existing water structure in the West […]” (Howitt and Lund, 1999, p. 1268). But now, a powerful set of new players joined the game, bringing new money, new political leaders, and new voters. With regard to water, much of the significant legislation has come from the federal government. For example, in 1992 Congress passed major amendments to the 1937 Rivers and Harbors Act: “[…] the Central Valley Project Improvement Act, mandates changes in management of the Central Valley Project, particularly for the protection, restoration, and enhancement of fish and wildlife.” The Act elevated habitat restoration and protection to the same level as irrigation, and just behind navigation and flood control. You could almost see the blood on the floor, as the 102nd Congress (just before closing up shop) effectively said to the farmers that they were on their own in fights with environmental interests. In the Wild and Scenic Rivers Act, “Congress sought to ensure full consideration of both the preservation and development values of each proposed wild and scenic river before permanently including it in the system. The WSRA thus requires agencies to prepare a report showing ‘the characteristics which make the area a worthy addition to the system; the current status of landownership and use in the area; the reasonably foreseeable potential uses of the land and water which would be enhanced, foreclosed, or curtailed if the area were included.’ This report must then circulate among the relevant federal agencies (Interior, Agriculture, Army, and FERC) for their comments” (Hiser, 1988, p. 1049).

In some areas California became a national leader in environmental legislation. It imposed higher standards for air pollution from automobiles, factories, and farms. California also led the nation in limiting new development in coastal and other environmentally sensitive areas. Partly this was because of California’s unique political process. For example, the state legislature was initially unreceptive to coastal protection legislation and, as a result The Coastal Zone Conservation Act was enacted as a popular initiative (Proposition 20, 1972), which set up a commission to regulate (and often prohibit) development near the coastline (Finnell, 1978). While the state also began to impose regulatory restrictions in the state water code, progress in water policy making has not been as impressive as in other areas.

Very often, important moves have come from the courts. California courts soon began to play an increasingly important role in responding to environmental concerns. The “reasonable and beneficial use” doctrines, which applied to ground as well as surface water, had long permitted courts to redefine which water uses were permissible and could easily be (and were) retrofitted to apply to environmental claims. More important, perhaps, was the judicial rediscovery of an old Roman and Common Law concept — the public trust doctrine — as a useful doctrinal vehicle for articulating the public’s interest in the conservation and allocation of resources. Traditionally, the notion of a public trust is sometimes considered an attribute of sovereignty in common law jurisprudence. The sovereign was thought to have inherent authority to establish and maintain navigable water ways for example. The revived public trust doctrine however was mostly used to impair the exercise of sovereign authority — as in the crucial early case, Illinois Central^[65]. There the Court held that the state as sovereign had special duties to protect navigation and was therefore required to forgo policies that would interfere with that duty. The modern form of this doctrine was laid out in a seminal article by Joseph Sax, which greatly expanded the reach of the concept to attribute to the state the responsibility to protect the environment including fish and other wildlife and their habitats and public access to it. His suggestions were soon picked up by California courts, ^[66] and to some extent in the federal courts as well. Important in this development is the idea that the content of the public trust could be shaped legislatively as well as by common law. For example, with the enactment of the Clean Air Act in 1970, the public trust has been understood to include air quality. Indeed, as that Act was further amended over the past 45 years, the content of the public trust has continued to evolve both doctrinally and legislatively. This is not to say that the expansive notion of public trust is uncontroversial, either in law or politics.

The public trust is limited in several ways. First, as it has developed into doctrine, it operates to limit actions by state and local government, but does not appear to limit the federal government. Its content can also be regulated by common law, statute (state or federal), as well as by state constitutions. There is also an important distinction between the public trust — a fiduciary duty to protect land and water or other things held in common — and the public interest, which may include other duties. For example, the California Constitution directs the state’s policymakers to develop its water resources to the maximal extent. This may require making use of things that are held in trust, even if that involves destroying or alienating them. Thus, there may be a need for the state to balance or harmonize its constitutional requirements with its duty to protect the public trust. A second limitation has to do with its scope; what things are considered to be part of the public trust? This question has been answered in many different ways in different states. Many state courts have accepted state ownership of rivers up to the high-water mark and required landowners to permit access to the river in that domain. More controversially, some courts have attributed to the state the ownership of wildlife (Frank, 2012). Other limitations are more technical, having to do with justiciability and evidence, which can raise difficult questions concerning complaints about a violation of the public trust. Thus, a court needs to decide who can bring suit (standing), when (mootness and ripeness), and what it takes to succeed in making a claim (rules of evidence, and especially of causation which are often very hard to establish in environmental cases).

Conservation programs required the creation of governmental agencies led by technical experts. Experts were already being trained in recently created land grant universities as well as globally, they could become independent civil servants in conservation-oriented agencies. Civil service status would protect these experts from political interference. This newly insulated bureaucracy was, however, to create a whole set of new problems. First the content of conservationism was still disputed and by late century many (like John Muir and John Wesley Powell) preferred policies favoring preservation rather than conservation. The protections afforded to experts would not only make them hard to monitor and control by legislatures, it might also freeze a certain conception of conservation in place in insulate it from scientific advances. Many civil servants had developed their own conservationist ideologies. How could voters ensure that environmental agencies would be responsive to the people, or to evolving science, and not pursue their own ideological goals or be captured by big business? The best response to this possibility is predicated on the notion that the agencies are not able to monopolize relevant expertise. Experts are found also in universities throughout the world, in businesses and foundations, and in environmentally oriented interest groups. The distribution of expertise promises to keep the policy process somewhat more open to new ideas and to democratic impulses. In any case, late century a complex ecology of environmental groups and ideas had evolved and become a fact of political life.