Water, water, everywhere, and not a drop to think: Gary Harrington, Oregon water rights, and Freedom

Note: This post may – or may not – be part of our League Symposium on Democracy. I can’t quite tell. [Moderator: Looks like it fits in to me. – BL] In any case, you can read the introductory post for the Symposium here. To see a list of all posts in the Symposium so far, click here.

Last night and this morning, I found that single lines in two separate posts stood out and refused to let my brain go on its merry and lazy Sunday way.

The first was a line from Jason’s post on democracy:

“If the laws destroy liberty, then they deserve to be broken.” 

The second, referencing the story of Eagle Point, Oregon resident Gary Harrington, was from a guest post by wardsmith:

“In Oregon you can’t even own the raindrops that fall on your property.”

It was fitting that I read each of these lines so close together, because it was together that they were both exposed to be overly black and white for my tastes.  Both Jason and ward speak disparagingly of democracy, each in his different way claiming that it leads to some kind of soft despotism.  I suspect, however, that in each case they find what they seek precisely because they seek it so hard.  For me, it is the Oregon story that tips the hand.

I was surprised to see ward reference the story of Gary Harrington, which I assumed was relatively unknown; however, a quick google revealed that this story is well on its way to being a meme.  In fact, if you google “Gary Harrington Eagle Point Oregon” you get no less than 191,000 links, and at least the first ten pages seem to be various blogs that all tell the same story – which if you’ll allow me to paraphrase goes something like this:

Did you know that in Oregon the rain that falls on your property belongs to the government?  Gary Harrington didn’t know that, and he collected some rainwater to put out a fire – and the government put him in jail for it!  What’s happened to this great country we used to live in?

By odd happenstance, I have a client that is involved in this story in a minor way along the fringes.  Because of this involvement, I actually have some peripheral professional knowledge of Mr. Harrington’s persecution, which – surprise! – is a wee bit more complicated than the intertubes are making it out to be.

However, a review of the real and more complicated story of Gary Harrington is a fine microcosm – both of how the question of “freedom vs. tyranny” is so often a pretty ruse we fall for, and how deciding in advance that the government is “the enemy” (to quote ward) allows us to replace difficult, complex decisions with overly simple ones, to our own detriment.

So who is this Gary Harrington, and how come the jackbooted thugs from Oregon’s government class are coming onto our yards and seizing our precious water?  Let’s take a look:

Oregon has a reputation for being a place where it rains all the time.  However, this state of constant “liquid sunshine” (as we call it here) is actually primarily restricted to the Coastal Mountains and the Willamette Valley, where Oregon’s three largest cities are located.  Much of the rest of the state is desert or dry tundra, and citizens in those areas are dependent upon wintertime precipitation for their year-long water needs.  This is especially true of the part of Southern Oregon where Harrington resides.  Though water is plentiful in the fall and winter, its supply wanes throughout the summer.  If there has been a relatively warm and dry winter, water rationing is sometimes required in July, August or September.  In addition to the day-to-day needs of the citizenry, the lack of precipitation in the region during the summer often leads to large forest fires, the fighting of which creates additional water needs.

This part of Oregon is part of the Big Butte area, a natural formation which is the result of ancient volcanic activity.  The landscape acts as a complex watershed system; above ground tributaries and underground open spaces in the volcanic rock create a natural sieve that pools into Big Butte Springs, the area’s reservoir.  The runoff from each winter’s rain and snow supplies the citizens of Medford, Ashland, Phoenix, Eagle Point and several other smaller rural towns.  Because of this property owners on higher ground that have tributaries running through their property are only allowed to divert a certain amount of runoff water.  (Contrary to the new internet meme, there is no limit in Oregon to the amount that one can collect in artificial capturing systems, such as rain barrels.)  Someone who has a home and a business on their property, for example, can divert up to 20,000 gallons of water moving through his property each day for his personal and commercial use in addition to whatever water he can capture in an artificial capturing system without having to get permission.  Many large commercial ranchers and orchards in the area divert far more than 20,000 gallons by way of permits.

It should be noted that, despite claims that this law is an example of Obama-style statism running amok in the 21^st century, the law designating runoff water over a certain amount to be public property was passed in 1925 and has been in constant effect ever since.

Harrington’s property contains such tributaries, and over ten years ago Harrington constructed three artificial reservoirs designed to capture what – based upon the size of the reservoirs – would be several million gallons of runoff water a year.  These reservoirs were built, and have been used, to stock and breed fish for on-site recreational fishing.  Now, it is true that some of this water did indeed fall from the sky onto his property.  But the vast majority of it fell on higher ground, and was on its way from someone else’s property to the public reservoir before Harrington diverted it for his own sports-fishing usage.  In 2002 the Oregon water master became aware of Harrington’s illegal collection and ordered the reservoirs drained.

What happened next is in dispute.  According to Harrington, the state told him privately that if he pleaded guilty to illegal collection they would grant him a permit that would allow him to keep the reservoirs.  He did so, and then claims to have spent $11,000 in reservoir upkeep. He was awarded the permits – which were almost immediately rescinded.  Harrington claims that permission was taken away because government officials had gone crazy with power.  According to the state, there was never a “back room” deal, and the permits that were initially granted were approved in error by a lower-level bureaucrat due to misinformation on the permit application.  In either case, the state government does not come off looking particularly great.

Though he claimed in court that he had drained and discontinued the reservoirs, in fact he continued collecting water for the next decade.  When he was found out, he was sentenced to 30 days in jail and $1,500 in fines.

It bears noting that although it was indeed the state that acted against Harrington, it was doing so on behalf of the city of Medford and its citizens.  Conservatives in California might well think of Harrington as a modern folk hero, but in Southern Oregon liberals and conservatives alike consider him a thief.  From their point of view, Gary Harrington is just a small-scale version of the old-West rancher that dammed the creek up-stream so that he didn’t have to share the water with you.  To add an additional wrinkle of grey, now that he has been caught Harrington has been offering part of his collected runoff to the Oregon Department of Forestry to fight fires.  While there is little doubt that this offer is an 11^th hour PR attempt, it cannot be denied that it does indeed add to the region’s public good.

My question for commenters here, and for ward and Jason in particular, is what exactly is the correct framing of freedom and liberty in regards to this story?  Is the government truly evil for not allowing Harrington the freedom to claim water going through his property?  If so, what do we make of an entire community of over a quarter million people that might not have ever come into being without a government declaring water public property?  If we are to agree that only natural rights should be allowed in a liberal democracy, which party has the natural rights in this instance – Harrington or his neighbors?

One of the reasons I cling to principled pragmatism is that I cannot think of an absolutist position in a case like this – a case so human and non-academic – that does not eventually end in a way that stinks of immorality.

Taking the position that the community’s desires always take precedence over the individual’s can too easily lead to a place of evil.  In this particular case I confess I have a great deal of sympathy for the people of Southern Oregon, who sometimes have to let their yards die and forgo showering regularly because there simply isn’t enough water.  On the other hand, what if these same people decided that they wanted to build the world’s biggest swim park on Harrington’s land, but didn’t really feel like paying him for it?  (If you don’t believe such a scenario is possible, feel free to drop by whatever piece-of-shit, worthless, rock-infested dust bowl to which your state’s tribal nations have been relegated.)

Still, I balk at having too much sympathy for Harrington.  The laws and rules that allowed a prosperous, year-round community to develop were around long before Gary Harrington came around.  He was well aware of these rules, and he was well aware of why they were in existence.  He simply didn’t care, and had no desire to buy property in the region that had existing fishing holes – which do in fact exist and are often for sale, but at a higher price tag than his own property was worth.

We can all agree on who owns the car that you paid for in full.  But who owns the community’s water supply, when nature won’t extend enough common courtesy to rain exclusively over community-owned reservoirs?  Should we allow Harrington and others the right to claim any water passing through their property, and perhaps sell it to the highest bidder?  If so, should we do the same with our nation’s rivers?

Look here, right here: here where real people live together in their complex lives, independently of the words of Marx and Hayek and Rand and Hobbes. This is where absolutist answers fall apart.

The truth of the matter is that, for me at least, these events in Southern Oregon have taken the exactly correct course.  A hundred years ago people came together and found a way to make a natural watershed work in a way that worked to the benefit of everyone.  More recently, someone who knew he was stealing community property did so because he felt entitled.  The community meted out a small amount of punishment at first, and then a larger one when that punishment did not deter.  For myself, I’m not sure I understand the 30 days in jail rather than a larger fine, but hey – it’s not my community.

In real day-to-day life in our liberal democracy, it’s rarely a question of freedom vs. tyranny.  More often it’s simply a question of one freedom vs. another.  My freedom to collect water upstream vs. your freedom to get water downstream.  My freedom of speech vs. your freedom not be slandered. My freedom to open any business I want wherever I want vs. your freedom not to have your children go to school next door to a strip club. It’s all people muddling through life, and there is nothing so despised by true believers of any stripe as muddling.  But the older I get, the more I believe that muddling is where the best and greatest freedom comes from.

Thoughts?

Follow Tod on Twitter, view his archive, or email him.