Kesterson: a Microcosm of Government Corruption [3] by D.A. Tuma

Usurpation of property right: "National Wildlife Refuge"

Usurpation of authorized purpose is a usurpation of property right, no matter who the owner may be. In the early part of my federal government career, I was led to believe that if government property were to be used for something other than its authorized purpose, the responsible party could be prosecuted for "misuse of government property", essentially "theft". In the latter part of my federal government career, I witnessed federal officials present unsuccessful waterfowl reproduction at Kesterson as a violation of the sanctity of a "National Wildlife Refuge". Who named it a "National Wildlife Refuge"? Not Congress.

Congress did not authorize the purchase of Kesterson for anything other than operation of the CVP, which included drainage disposal by the San Luis Drain and its operating reservoir at Kesterson, an artificial tank formed into twelve ponds by internal and peripheral levees scraped from the upland soil within its boundary. To the extent that wildlife habitat could be sustained by San Luis Drain water in this tank, the Service was permitted by contract to have access to Kesterson to manage such habitat.

Every time a federal official referred to Kesterson as a "National Wildlife Refuge" as if refuge purposes were superior to the primary purpose of San Luis Drain operation-the purpose for which the Kesterson property was purchased-any listener or reader who was not otherwise informed of the limits and conditions on habitat management specified by contract (U.S. Contract No. 14-06-200-4674A) for Service access to Kesterson was misled into believing "National Wildlife Refuge" purposes had ultimate priority. By misrepresenting the authorized primary purpose of Kesterson, federal officials misused government property. They stole it.

If listeners or readers of equivocating federal officials bemoaning hatchling casualties in a "National Wildlife Refuge" subsequently took action to remedy a presumed violation of purpose-as the California State Water Resources Control Board (WRCB) did when it ordered a cleanup of Kesterson-without knowledge of the true primary purpose of Kesterson, then they were defrauded. They were defrauded by federal officials who excluded the natural context of human morality. Our morality that holds trust in the promises of others, especially contracts, and restraint from taking other people's property, including dedicated purpose, as what is good about being human.

Bad faith in government socialism and communism

Why would federal officials exclude human morality? I find the bad faith that communism and socialism holds for private property ownership decision-making has subverted the culture of our government management. A government culture conditioned to be mendacious in its protection of a military-industrial complex for the sake of national security in a decades long battle against international communism is now mendacious in its protection of a wilderness-recreational complex for the sake of environmental security at the expense of private property rights.

This government mendacity is a corruption of power that serves winners in democracy at the expense of losers in stupid service to mob rule. And in our tragic situation, a mob of voters who have not yet overcome their fear of deformed bird embryos to see a communist assault on private property rights and individual liberty. How ironic to carry the tax burden to serve the national debt incurred to wage the cold war while being buried by communist environmental socialists! Former Soviet Union Communist Party Chairman Krushchev's prophecy "We will bury you!" is being fulfilled by our own government!

Farmers depend on us to honor our contracts

Farmers, now less than three percent of the voting population, have lost the political influence they had when they were a much larger percentage of the population. They are at the mercy of the rest of us to honor past contracts that secured resources for agricultural purposes-to honor the long train of past ownership of property by not taking property from those who bought it from prior owners. That applies to real estate, like Kesterson, and to water rights, like those bought by the CVP for diversion of the San Joaquin River for the purpose of farm irrigation on the east side of the upper San Joaquin Valley.

The purpose of CVP water is dedicated by virtue of project and funding authorization by congress. Before construction of diversion features, like Friant Dam, the CVP applied to the State for new diversion rights and bought the rights to divert water from owners of prior water rights. In other words, a market of water rights existed before CVP. A market that appears to have begun spontaneously, without government, by the Forty-niners who settled disputes of ownership of water diversion rights in a manner established for the ownership of mining rights. The right of prior possession established a right to property. That right was passed to any subsequent buyer. Decisions over water use could henceforth be peacefully determined by honoring the management authority of private property ownership of appropriated water rights.

But even so, California history of water development has not been completely peaceful. It has been marred by those who were not party to willing trades of water rights, and thus lost their investments made in unfounded expectations that farming or ranching in a place, like Owens Valley, would continue unabated by out-of-valley diversions. It has been marred by those who claim "public trust" environmental standards-like a specific elevation for Mono Lake's water surface to protect a sea gull rookery-must take priority over private ownership of water rights, even those owned by a city government, like Los Angeles.

Environmental socialist assault on private property: CVPIA

Because courts have pushed private ownership to the back of the priority line of water rights to make way for "public trust" government ownership, the assault by environmental socialists on private property continues to escalate. Robbing federal water rights dedicated for the San Luis Unit of CVP is but one front of the environmental socialist assault on private property. This assault includes demands for mitigation of alleged environmental damage, including deformed embryos at Kesterson.

Mitigation of alleged CVP environmental damage was one of several arguments cited in a U.S. General Accounting Office (GAO) report, GAO/RCED-91-175 Water Service Contracts Need Changes, 1991, to Senator Bill Bradley, NJ, for taking federal water rights dedicated for CVP farms. By packaging a 20 percent raid on CVP water with water resource development projects in other states in a common bill, Bradley and co-sponsor Rep. George Miller maneuvered the 1992 passage of CVPIA through congress.

I find CVPIA as mitigation to be based on false and unverifiable claims of environmental damage resulting from CVP. Why did congress pass CVPIA? Among the many faulty reasons was the allegation that San Joaquin Valley drainage poisoned Kesterson. Accordingly, I am ethically bound as a former professional engineer in federal civil service, assigned to technical oversight of Kesterson mitigation projects from 1989 to 1994, to publicly expose this fraud. Submission of this response to Porgans' petition is but one action I have taken to accomplish this objective.

CVPIA restoration fund: new tax

The CVPIA surcharge on CVP water and power was not identified as a "new tax" in the language of the bill signed and enacted by a President who asked us to read his lips when he said "No new taxes." It's called a "restoration fund". And much of it is funding CalFed environmental restoration projects, like the proposed removal of dams on Battle Creek, a Sacramento River tributary north of Red Bluff on the northern boundary of Tehama County, the northern-most county in congressional district 3. According to Nancy Vogel's article in The Sacramento Bee, May 4, 1999, page B1, this restoration is estimated to cost $50.7 million, with CalFed paying more than half. But this is trivial compared to the rest of CalFed's plan.

CalFed's ultimate river restoration plans could take 30 years and cost $2 billion. So far, money to fund hundreds of projects, from buying wetlands to installing fish screens, has been flowing out of the downtown Sacramento headquarters faster than progress can be made on the ground. That's why federal and state officials are anxious to showcase Battle Creek. Here they think they can get relatively quick, dramatic results.

One result of the proposed Battle Creek restoration, according to Vogel, is the loss of hydro-electric power generation, enough for 160,000 people a year. What are the environmental impacts of the replacement power for these people? Increased air pollution from fuel-fired power plants? Depletion of fuel reserves? Who decides if short term benefits from a marginal increase of 42 miles more salmon habitat outweighs the long term cost of replacement power generation? A cost that constrains consumer capacity to pay the marginal increase in their groceries due to "restoration fund" taxes.

Who decides? Not consumers. A communist central-planning government king, like Dick Daniel, "restoration chief for CalFed" who was quoted by Vogel "It's a laboratory as well as a restoration project." If this Battle Creek restoration laboratory experiment fails, do we trust Daniel to tell us? I don't.

I have yet to find any attempt to estimate the impacts of commercial fishing that can't discriminate between different runs of salmon considered for listing as threatened or endangered. I have yet to find any attempt to estimate the impacts of exotic predator species, like the stripped bass introduced to the Delta several decades ago, and the impacts of native predator species, like marine mammals protected by federal law for the past couple decades.

In the context of total salmon mortality factors that continue to change, it is anybody's guess how another 42 miles of salmon habitat will impact salmon survival. Battle Creek restoration is an experiment with unverifiable salmon benefits and obvious human cost.

CVPIA restoration fund: eternal drain on prosperity

Environmental socialists are adverse to patronizing corporate agribusiness so maybe they don't buy San Joaquin Valley cotton or cantaloupes. Maybe I don't either. But somebody does. And higher expenses for them is going to come around to higher expenses for the rest of us sooner or later. My guess is sooner. I know this is a scam.

My life is not going to get better from projects that are funded by people who don't have a clue about when to quit funding them. As long as the tax dollars roll in, and CVPIA taxes have no time limit, they will be spent, whether benefits are realized or not.

Government environmental protection doesn't have a clue about how much to spend on any project, because like government health care, the person paying is not the person getting the benefits. If you're not paying, why not get all the benefits you can get? You wouldn't be a good opportunist if you didn't. If there is one thing that is true for all life forms, it is that we are opportunists until we die. Opportunism is not necessarily a problem. If an opportunity rises to scare some people into forking over some money to save their kids from looking like those malformed birds at Kesterson, the problem is not the opportunity. It's the deception. It's the equivocation. It's the hoax.

Low voter turnout: helpless

Some people know in their hearts that what they hear from politicians so often sounds only half true. If people can't get a straight honest explanation from politicians, including at least some acknowledgment that past mistakes were made and some promise that government is going to be changed to keep from making those mistakes again, then why should people vote for more of the same? Low voter turnout isn't just due to ignorant or uneducated apathy. With as much government control of our lives as we're suffering, some of our low voter turnout must be from a sense of being helpless.

What can be done? If opportunities to expose a hoax and stop a government scam look remote and obscure, a victim like you or me-a slave to government command and control of our market-might feel frustrated. But if we don't slouch, if we learn the details of the battlefields of political wars, evaluate the reasons for competing policies, and providence is kind enough to let us find opportunities, we need not be frustrated. We can vote Libertarian. We can persuade our friends to vote Libertarian. It's easy.

Government rules: subsidized speech frustrated

Unfortunately, not many have yet discovered the potential for unimagined freedom by filling government offices with Libertarians. Some seem frustrated with a political system unresponsive to what they want, and we occasionally hear them begging to be heard in government controlled public hearings, as if their written persuasion might be ineffective for those who read. So their message is really for those who might be persuaded by emotional acting.

Maybe during the time they are heard, others will hear them and join their cause. If enough people join, who knows? It could grow into a powerful political lobby like the Sierra Club, Earth First!, Environmental Defense Fund, or the Natural Resources Defense Council. With new funding and leadership opportunities.

Maybe expression of frustration over being denied a publicly funded forum for live performance is less about limited opportunity to persuade government decision-makers (presumably capable of reading written arguments) and more about being denied a government subsidy for budding lobbies, trying to organize public involvement into support for their particular agendas.

Porgans' Petition

The day after I protested federal taxes before a long line of last minute filers, I received the petition, dated August 22, 1998, to the WRCB, for which this response has been prepared. It was apparently written in frustration over being marginalized in the hearing procedure of the Central Valley Regional Water Quality Control Board (CVRWQCB) on July 24, 1998, to consider issuance of waste discharge requirements for about 80,000 acres of farm land in the Grasslands area of the San Joaquin Valley. An area of uniform flatness on the gentle slope of the distal reach of the Panoche Creek alluvial fan, upgradient from much of the 160,000 acres of federal, State, and private wetland, riparian, and grassland habitat on both sides of the San Joaquin River that the Service has identified as the "Grasslands Ecological Area" in Merced County.

The petition's author, Mr. Patrick Porgans, referring to himself and possible but unidentified others as Porgans & Associates (P&A), requested the WRCB to rescind the CVRWQCB's decision to approve Waste Discharge Requirement No. 98-171 and schedule a formal hearing on this matter.

On page 1 of the petition, Porgans claimed the CVRWQCB denied interested parties their right to due process.

The Regional Board's decision/action to conduct an "informal hearing" on a matter as complex as agricultural drainage is inconsistent with the public's interest, and its three (3) minute time limitation was unwarranted, and was paramount to a "gag order," which effectively denied informed citizens and interested parties their right to due process. The Regional Board's "informal hearing" preempted meaningful public involvement in the process. (Refer to Exhibit 3, P&A Written Testimony to the Regional Board.)

And on page 4, Porgans asserted he was cognizant of future events as "fact". Such people in my religious heritage were known as prophets. I have never met a prophet before. But unless the CVRWQCB pleads guilty to his accusation, we will never know. So I would guess that Porgans' "fact" is most likely unverifiable. He is no prophet.

P&A objected to the inappropriateness of the "informal hearing" and the three minute time limitations imposed by the Regional Board, and informed the chairman that P&A was participating in the "hearing" under protest, fully cognizant of the fact that P&A would not receive a fair and/or impartial hearing from the Regional Board, and that the three (3) minute time limitation preempted meaningful public involvement. * (Refer to Exhibit 3, and to the Regional Board's hearing record.)

* Patrick Porgans & Associates oral and written statement to the Regional Board "public hearing." Waste Discharge Requirements for the San Luis & Delta-Mendota Water Authority and United States Department of the Interior, Bureau of Reclamation, Grassland Bypass Project, Fresno and Merced Counties, July 24, 1998.

Porgans' complaint is that without more time to hear "meaningful public involvement", the CVRWQCB would not give him a "fair and/or impartial hearing". Despite his previous written and oral testimony. Despite his commitment to a single final solution that, no doubt, should have been evident in his previous testimony.

In case we hadn't noticed, he included on page 1 the following summary of his commitment to "mitigate and/or eliminate the sources of those problems contributing to the agricultural toxic discharge into the waters of the state." As if protection of the State's water from "agricultural toxic discharge" was his self-proclaimed duty, like the duty of a king to protect his subjects.

Agricultural drainage is a water quality problem that has plagued the state and the public's water and dependent trust resources for decades. It would be an understatement to say that it is a highly complex and politically sensitive issue. P&A has committed more than 20 years of its time and resources to research, to assess and develop cost-effective, socially acceptable, and environmentally sound alternatives to minimize, mitigate and/or eliminate the sources of those problems contributing to the agricultural toxic discharge into the waters of the state. The record will also attest to the fact that P&A has used all available remedies to ensure that the public's waters are being used in a "reasonable" manner consistent with Article X, Section 2, of the Constitution of the State of California. In addition, the record will also attest to the fact that P&A has been very active in the Grassland Bypass Channel Project and opposing the reopening of the San Luis Drain. * (Refer to Exhibit 4.)

* Central Valley Regional Water Quality Control Board's Staff Report on the Compliance Time Schedule to be Used for the Regulation of Agricultural Subsurface Drainage Discharges in the San Joaquin River Basin, [(Appendix II, Comments Received on: Staff Report on the Water Quality Objectives and Implementation Plan to be Used for the Regulation of Agricultural Subsurface Drainage Discharges in the San Joaquin River Basin, August 1995), Patrick Porgans', Government Regulatory Specialist, October 3, 1995 Letter, Re: Comments on the Basin Plan Amendment and the Reopening of the San Luis Drain, AKA Grassland Bypass - 3: Central Valley Regional Water Quality Control Board's September 22, 1995, Workshop on the Water Quality Objectives and Implementation Plan to be Used for the Regulation of Agricultural Subsurface Drainage Discharge in the Grassland Area, Merced County, California,] November 1995.

[Italics are as indicated in the petition.]

The oral record of Porgans in the meetings I've heard him speak includes rants. One them sounded like a broken record "It's my Delta! It's my Delta! It's my Delta!"

Frankly, I've heard Porgans' message loud and clear enough to know I've heard enough. What I hear is his certainty that he knows what is best for the State's water and we could show him a lot more appreciation for his efforts to tell us what we should do by shutting down farms to stop what he has decreed to be unacceptable "agricultural toxic discharge".

Imagine his final solution if he finds municipal discharge "toxic" and unacceptable. Do gas chambers and ovens come to mind? Final solutions are easy for dictators.

Like those with so much divine guidance they are without sin and have no qualms about casting stones at others, am I to suppose his personal drainage is good enough to support breeding habitat for waterfowl and his personal prosperity doesn't benefit from every irrigated acre in the San Joaquin Valley with drainage that doesn't? No.

Porgans is just a man who would be king or communist if we let him. I offered to buy his share of the Delta. He said "It's not for sale."

Part 3