by Martin Doyle
On Friday night, four and a half days after the first levee breach, Louisiana Governor Blanco received a fax from the White House. With her signature, that document would federalize the National Guard troops under her command. Early the next morning, as Bush was preparing a Rose Garden announcement of his decision to federalize the Louisiana National Guard and other rescue functions, Governor Blanco refused to sign. Though his stance was less publicized, Mississippi Governor Haley Barbour—a staunch Republican ally of the president—also refused a request from the White House to turn over his National Guard troops to the federal government. Rather than call in the federal troops, both Louisiana and Mississippi stuck to their own local resources as well as relying on the 20,000 National Guard troops sent in from other states in the region.33
It seems strange to manage a government function as critical as flood control through a system as complicated, redundant, and seemingly undisciplined as federalism. It’s unlikely that anyone designing a system from scratch would have had Kent Parrish and Peter Nimrod overseeing many of the same levees from completely different levels of government. The inefficient and complicated effect of federalism for flood control, and almost all other government functions, seems to be something that the framers of the Constitution fully expected in their design of government itself.
We can better understand that element of the design by viewing the American government as something intended to be an ongoing experiment rather than an optimized system. That is, the framers constructed government with a willingness to try something, test the results, keep what worked, and reject what did not. By rejecting the Articles of Confederation and reconstituting the entire government in 1787 under the Constitution, they set the most extreme example; but even as they were designing this new government, they embraced experimentation as a core part of their vision. The Federalist Papers, which argued the case for the states to ratify the new Constitution, use the word experiment more than forty times, but democracy less than a dozen. Most of the early presidents described the government frequently as an ongoing experiment. The purpose of such an approach was captured well by Andrew Jackson’s 1829 State of the Union address: “Our system of government was by its framers deemed an experiment, and they therefore consistently provided a mode of remedying its defects.”34
If we accept that government is an ongoing experiment in which we propose and test different methods of accomplishing different functions, then the seemingly chaotic structure of federalism starts to emerge as something far more useful. Changing agencies or entire governments at the national level is extremely disruptive; adapting smaller, more local governments or agencies is far more realistic. That is, federalism provides the opportunity to conduct a series of smaller, simultaneously occurring experiments. Failure or success from each experiment can be used to inform those in other states or local governments, and failure of one of these smaller experiments does not jeopardize the entire organization.
The trial-and-error method of Mississippi and Louisiana’s earliest locally managed levee districts led to the creation of similar but slightly different districts in Arkansas. The idea eventually was used in Illinois and across the continent in California. Each state and each levee district could adopt what it liked from others and adjust it for their own peculiarities, whether those peculiarities were hydrologic or economic. This rapid adaptability is what led Supreme Court Justice Louis Brandeis to refer to states as “laboratories” of policy where ideas could be tried at a limited scale, and their merits weighed based on performance, before potentially being implemented nationally. Such adaptation is far more difficult when policies or approaches are nationalized. The building of mammoth flood control infrastructure was largely unstoppable through much of the twentieth century, just as curbing federal spending on flood insurance is proving almost impossible. Momentum at the national scale precludes making changes; too much is invested in the status quo by too many people.35
Besides its adaptability, federalism also appealed to the founders’ aversion to vesting too much authority in a small number of people in just one agency. When flood control was centralized in the Corps of Engineers during the Great Depression, the scale of work done was staggering in comparison to what had been done until then. Just as important, the function was controlled and operated by a small set of people in the Corps of Engineers; this arrangement contrasts markedly with the highly diffuse approaches of local or state efforts such as the dozens of levee districts along any major river. Making flood control a federal responsibility led to centralized control of entire river systems. The Corps of Engineers, with congressional authorization, decides how much water will be released from Missouri River dams or when to activate bypass channels on the Mississippi River. Farmers and local entities must adjust their practices and respond each year to changes in management decisions by the Corps in much the same way that they must adjust to changes in the weather.
And this is the crux of federalism: our view of how active local versus federal government should be in controlling or responding to floods reflects our view of human nature itself. Underlying the call for a strong federal role in flood control is the vision that river managers and engineers have the foresight, expertise, understanding, and public interest to make holistic and integrative decisions to alleviate the threat of floods across the nation; that the best and the brightest people working in flood control are consolidated in a singular federal agency. The alternative vision is that rivers and floods should be managed among disparate personnel, institutions, agencies, states, and local districts. Resistance to nationalized flood control is based on an ideological vision that singular centers of decision making are apt to become victims of bureaucracy, or perhaps simply implementers of decades of previous decisions.
If we accept that there is a cadre of visionary and superior river engineers and managers whose abilities can be harnessed to alleviate floods or enable navigation on rivers, then we should ensure that those river masters have the resources and authority for developing and implementing massive projects and policies. If instead we are inherently skeptical of any river managers, regardless of their capabilities or purity of motives, then it is better to constrain them by diffusing authority: give certain functions to a federal agency, but retain others for the states and even local, function-specific districts like the Mississippi Levee Board.
This, then, is why Americans have developed a complex and somewhat unintuitive approach to flood control, and river management in general: because of our federalist government. And this federalist approach to government is based on our ever-evolving, pendulum-swinging perspective on how much power and influence should be vested in a few people—or in many people. In the end, how we as a nation have approached managing rivers and floods is a manifestation of our ideology; or as James Madison stated in Federalist No. 51, “But what is government itself, but the greatest of all reflections on human nature.”
PART TWO
SOVEREIGNTY
AND PROPERTY
CHAPTER 5
Water Wars
The Klamath River starts in the high desert of central Oregon and cuts through scrubby rangelands, dusty canyons, and the redwood-lined mountain ranges of Northern California, flowing eventually into the Pacific Ocean just north of Arcata. The river links Oregon to California and ranchers to salmon. It is also contested territory in an ongoing water war.
Water wars could often more accurately be called hydro-political skirmishes, but they can feel as serious as a war for those living in the affected regions. Most of these water wars have been waged in the West, where surrounding aridity and recurrent droughts regularly ignite hydrological conflict. Battle lines have perhaps most frequently been drawn along the Sacramento and San Joaquin Rivers of California’s Central Valley and the Colorado River, deep in the dry Southwest. But at the start of the twenty-first century, tensions over water have been rising almost everywhere—between Texas and Oklahoma, between the Great Lakes states, and even betwe
en Georgia, Alabama, and Florida, states that occupy one of the wettest regions of the world. The battle for use of the Klamath epitomizes these skirmishes, for it includes many quintessential elements of water wars: fish, farmers, Native Americans, and the struggle to maintain highly water-dependent lifestyles in the high desert. By 2013, Klamath River water wars had been pitting upper-river farmers and ranchers against their downstream Native American neighbors for decades, and another skirmish was brewing.
The Klamath watershed is shaped like an hourglass tipped on its side; a narrow canyon separates expansive upper and lower basins. A series of high dams sits in the canyon, starkly dividing the two basins. The upper basin is arid, flat, and bordered by a distant ring of forested mountains. The lower basin is steep, with ragged mountains that creep to the edge of the river, and slightly more humid—at least by western standards.
Down in the tribal lands, despite flowing hundreds of miles, the Klamath is no bigger than it is in the upper basin. Rivers should get bigger as they flow downstream: like arteries, they gather the flows of the many tributaries that feed them, swelling along with the area of land and runoff they accumulate. But the Klamath is more like a vein, distributing its water out onto the landscape for irrigation through the ubiquitous water diversions along its course. Most rivers of the West have a hydrological fate similar to that of the Klamath.
In the arid West, it is a constant battle to grow anything. Farmers and ranchers can scratch out a living if, and only if, they can get water. They live and die by building “diversion dams” that transfer water away from a natural channel and out into the landscape through a series of progressively smaller canals and ditches that sprawl into various fields. Irrigation works can be as simple as a piece of plywood carefully wedged to spew water over a field or as complex as a massive concrete dam shifting water into a cross-state canal. Westerners use these diversions to move water around, and moving water around is critical. In fact, farmers here are often simply called irrigators because irrigation is the central activity of farming in the West.
The spokesman for some of these irrigating farmers and ranchers in the Klamath watershed region is Tom Mallams. He was elected commissioner of Klamath County, Oregon, during the rise of the Tea Party movement, which resonated in the independent-minded western lands as strongly as anywhere in the United States. Mallams is an eminently polite farmer-politician, soft-spoken but clear-headed and razor sharp. When I meet him he is rail thin and deeply tanned from years in the high desert, dressed in a dark suit and red tie. His office is immaculately clean and organized. Mallams knows water, and having lived and farmed through sequences of droughts, he’s all too aware of what the loss of water would mean for farmers—irrigators—like him and the county he represents.
A few hundred miles downstream from Tom’s office, past the canyon that funnels the river into the lower basin and on through the craggy mounts of the Coast Range near the mouth of the Klamath, Leaf Hillman lives on the lands of the Karuk Tribe. At first glance, he and Mallams don’t seem to have much in common. Hillman is Native American. He’s short and stocky, and he has a long ponytail of black hair; the day I meet him, he has worn shorts and a tank top to work. Whereas Mallams’s county office was in a renovated building with well-manicured bushes along its steps and stairs, the Karuk Tribe Natural Resources office where Hillman works is drab and undersized. The tribal health care center is in the same building, which is perched in a narrow canyon next to a highway. Despite their many differences, Hillman and Mallams are bound together by the Klamath River.
Leaf Hillman knows Tom Mallams, like he knows many of the farmers and ranchers in the upper basin. For his part, Mallams knows Hillman and the tribal members throughout the basin. Of course they know each other. As Hillman says remorsefully of the upstream farmers, “They were set to be my enemies before either of us was born.” And of the things that make them “predetermined enemies,” water is central.
Both Hillman and Mallams have spent their lives facing the realities of water scarcity. Mallams knows firsthand how hard it is to scratch out a living on these dusty landscapes without sufficient water. But farming is not just a job to him—“it’s a lifestyle; a culture.”
Hillman and the tribes are all too aware of what is at stake for the farmers: “If they don’t have certainty in water, then they have no stability in agriculture, and then they have social instability in their people and their place. The irrigators need social stability.” Hillman can see a failed hydrologic future of atrophying farm towns, shuttered businesses, decaying schoolhouses, weedy fields, and kids leaving home to live somewhere, anywhere, else—a farming version of the desolate tribal lands that still pepper the West. “If they are going to have stability in their communities, they need to have stability in their water.”
Hillman empathizes with the farmers the way only a fellow water-starved Westerner could, largely because he has watched as tribal water was winnowed away through decades of water diversions by upstream farmers. As the diversions reduced the flow in the Klamath, the number of salmon in the downstream river plummeted. As the salmon declined, so did a revenue source for the lower basin tribes, making their livelihoods—their lifestyle and their culture—ever harder to sustain.
Yet despite this intense history, the ranchers and tribes don’t wish each other ill. They have a common respect for each other—as Hillman described the upstream farmers and Mallams, “They are hard-working sons-a-bitches. They just want to live their life and be left alone to work and be with their families. We have a lot more in common than we think.” Mallams, likewise, counts many tribal members throughout the basin as friends. But water in the West is a zero-sum game. The tribes can’t keep enough water in the river to sustain the salmon if the farmers upstream divert all the water they need for crops and cattle. Someone has to lose. Furthermore, someone has to choose the winners and losers.
As I left Mallams’s office, I passed an enormous steel bucket standing almost 15 feet high, emblazoned with the name Oregon, along with the names of several other western states: Utah, Idaho, and Nevada. The bucket is a tribute to the “bucket brigade,” an event that occurred in 2001 during the last major drought to hit the Klamath basin. In that earlier drought, the federal government had not allowed water to be diverted into irrigation canals. Instead, water was left in the streams to protect the endangered species living in the lakes and rivers of the basin: two species of suckers in the upper basin, and coho salmon in the lower. In response, farmers and ranchers from other western states, who resented what they saw as federal overreach, formed a line through the town of Klamath Falls and passed buckets of water by hand from the river into the irrigation canals.1
The 2001 bucket brigade was a twenty-first-century sagebrush rebellion, a natural extension of the western tradition of rebelling against perceived federal government overreach of authority over land, water, and other natural resources. The original sagebrush rebellion erupted in 1979, when rebels in Utah bulldozed a barrier on federal land and claimed the land rightfully belonged to the county and state of Utah. In Nevada, where the federal government controls 87 percent of the state, the legislature passed an act requiring all federal lands in the state to be reevaluated and potentially made state lands instead. In 1980, when then presidential candidate Ronald Reagan was asked about the sagebrush rebellion, he declared, “Count me in.”2
Sagebrush rebellions did not arise from the western farmers’ quest to eradicate government, but rather from their quest to ensure that the states and not the federal government would have final say in deciding how to use natural resources like land, timber, and water. The sagebrush rebellions were all about sovereignty.
Tom Mallams and the farmers of the Klamath pointed to the State of Oregon as the sovereign entity over water—and as sovereign, the state had granted these farmers water as their property. And they are right. Leaf Hillman, his Karuk Tribe, and other tribes in the Klamath had a different perspective on who makes decisions about wate
r: their view derived from over a century and a half of being on the losing end of decision making. Hillman noted that, at least in theory, the United States recognizes the sovereignty of the tribes; and as sovereign nations, the tribes have as much right or even more than the state of Oregon to the water from the Klamath River that their reservations have historically received. He and the tribes are also right. Both groups are right, depending on who is in charge. Who is sovereign?
Think of how we divide land: we draw lines on maps. Some lines follow nature, tracing the wiggling (meandering) path of a river or a mountain range. Others follow politics, tracing the subjective precision of latitude and longitude. Once those lines are drawn, we revere them. We bound territory with these arbitrary lines on a map, and we recognize the authority of a person, or a group of people, within that territory. This is sovereignty—a geographically bounded territory with some ultimate authority ruling over that territory. On a smaller scale, lines on maps can also designate property: on one side of the line is my property, and on the other side of the line is your property. The historian Bill Cronon simplifies the concept like this: Property is you vs. me; sovereignty is us vs. them.3