Archives and legal precedents

Within the Currents offerings in the April 26th edition Matt Jenkins provide readers with a description (for subscribers only) of one of the West’s most important archives -  The Water Resources Center Archive at the University of California in Berkeley.  Matt tells us that historian Donald Worster was among those who did research at the archive. The resulting volume – Worster’s "Rivers of Empire" – is de rigueur for those who hope to understand Western water politics.

Jenkin’s piece invites us to consider one among the likely thousands of unintended consequences that are resulting from the current round of state budget crises. It also caused me to consider more broadly which sources end up in archives and which sources are not typically preserved for future generations. I’m betting, for example, that the papers of academics, politicians and bureaucrats make it into archives much more frequently than the papers of everyday people and grassroots organizations.

How does this unnatural selection impact how history is written?  Or maybe I should say which history is written. It seems to me that those wishing to write peoples’ histories are at a disadvantage because of the values and prejudices of those who build archives and collections.

Jenkin’s report also contained the following statement: “Not only was Mono Lake saved, but today, under the “public trust doctrine,” water can no longer be mindlessly funneled off for use on farms and in taps without consideration for the environment.”

This conclusion, however, does not comport with reality on the ground. While the Mono Lake decision to which he refers had the potential to accomplish what Jenkins claims, it has not fulfilled that potential. Everyone – from state agencies to environmental organizations and fishing groups - has shied away from using the decision to change how water is managed in most river basins and watersheds in California. For example, it was reported not long ago in the San Francisco Chronicle that the highest officials at California’s Department of Fish and Game had ordered underlings not to enforce the Fish & Game Code that implements the public trust doctrine in two of California's key salmon watersheds. That Code – F&G Code 5937 – was the key to the Mono Lake Decision. If it were being faithfully implemented today streams across California would not be going completely dry in summer and California salmon would not be on the brink of extinction.

The reality of dewatered streams and unenforced laws is why citizen groups in California are now banding together and campaigning to restore the public trust doctrine in the state. Here’s a link to one of those efforts – the North Coast Stream Flow Campaign.  According to its website, the campaign has been undertaken “ to break the political log jam preventing protection and restoration of adequate flow in North Coast California rivers and streams.”

There is a broader lesson in this - like most environmental professionals, most environmental journalists assume that when the lawsuit is won and the precedent is set reality on the ground also changes. But in the real world that is rarely the case. Putting laws and legal opinions to work requires additional, sustained effort. That effort must come either from public officials or from citizens. Given how public officials have been implementing the Mono Lake decision in California, I’d say that the citizens have their work cut out for them.