This article is a continuation and the third in a series of three. To read Part 1, click here, and Part II, click here.
BOGUE, Kan. - I had hoped the opinion we sought from Stovall would also deal with the problem of irrigation lobby dominance of water politics. I sought a one-person, one vote representational scheme but unfortunately the Kansas State Attorney General disagreed. "The definition of an eligible voter found in K.S.A. 82a-1021 does not violate the one man, one vote rule of the United States Constitution." Unfortunately, only a tiny fraction of the people living in the area directly affected by GMD policies, the thousands who have stake in the future and an opinion about what should be done and when, have any vote in GMD decisions. That ought to change.
As to takings, the AG essentially ducked the question: "Whether a reduction of a water right constitutes a compensable taking depends upon the purpose for which the reduction is made. Without consideration of the purpose for which the reduction is made, no balancing test can be applied to determine whether the taking is compensable."
In other words, a critical issue -- whether private disputes over water appropriation rights takes precedence over the Chief Engineer acting in the broader long term stewardship of the resource -- was not, and hasn't been, addressed, either by the Attorney General or by the courts. It must.
When and if it happens (and it is overdue), the irrigation lobby and allies will make the predictable "first in time, first in right" argument against state imposed, uncompensated (or what they see as inadequately compensated) taking. In other words, they will argue a non-starter: "It's our water, pay us."
First in time law is expressed in K.S.A 82a-707c. However, I am confident the court--after the appeal process had run its course--would ultimately interpret first in time as applying only to cases involving private parties. Regulatory action by the State of Kansas in the larger long term public interest, under the purview of the statutes and administrative regulations I've cited, is another ball game.
In 1994, the Public Law Research Institute in California was asked to "determine whether the entitlement rights of a water district rose to the level of property interests within the meaning of the Fifth Amendment."
The opinion was that "The District's contractual rights do not rise to the level of property within the meaning of the Fifth Amendment" because of "the inherent right of state and local governments to enact legislation protecting the health, safety, morals or general welfare of the people within their jurisdictions." Under existing Kansas law, in which the principle of a public resource is much clearer, I predict the same result.
So, am I saying the Chief Engineers over the past five decades have flunked the test of responsibility. YES! And the legislature has tolerated or ignored their failures.
A reliable source told me that Guy Gibson, Chief Engineer during some of the most intense appropriation (1972-1983 told him privately that water was being seriously over-appropriated--but predicted nothing would happen until somebody hollered. David Pope, his successor who held the position for 24 years, knew it as well.
David Barfield, the current Chief Engineer, appointed in 2007 has so far done little to brag about other than what his bio calls an "Ongoing dialogue with groundwater management districts and others regarding options to address past over-appropriation of some water resources." Like the others, he's passing the buck.
So here's where we are. One of a few honest people I met in my years of advocacy for responsible stewardship of the resource, Stephen Hurst in 1999 concluded the issue was "too politically volatile to deal with" and they, meaning the GMDs, the Kansas Water Office, the Kansas Water Authority, the Legislature -- and ultimately, the Chief Engineer of the Division of Water Resources] "chose not to."
As for most of the good people of Kansas. They'd rather not be bothered, it seems. Me, I just got worn out trying.