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and power agencies which obstruct and control
its waters to favor hydropower production over
managing the rivers as a national park. The
federal government provides oceans of money
to corporate agribusiness to raise wasteful waterdependent
crops like rice and alfalfa in the desert.
Meanwhile, local and state governments encourage
sprawling and water-hungry commercial and
residential developments by offering tax breaks
and subsidizing harmful infrastructure such
as roads, sewer lines, and electricity. With such
inducements, developers are building golf courses
and swimming pools in the Arizona desert. They
have drained the Colorado River dry and are now
depleting the 112-million-acre, ten-million-yearold
Ogallala Aquifer under the Great Plains states,
which has dropped several hundred feet since
modern irrigation practices surged following
World War II.
It’s not too late to implement rational water
policy in the West that would serve America’s
citizens rather than the greedy, powerful
few and that would create an example for
the democratic use of public-trust resources
worldwide. If the grotesque handouts ceased,
we could easily meet today’s needs, while
protecting the rights of our children. In order
to succeed we must adopt healthy legal and
economic rules that reward the efficient use of
resources and punish their inefficient use. Our
legal system must confront polluters with the
social costs of their activities.
But first, Americans need to be aware of their
rights and the jeopardy those rights face before
the juggernaut of corporate power. Democracy
affirms individual rights to our natural resources.
But those rights cannot survive without a
courageous
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citizenry that insists that their
government not merely cater to commerce
and industry but that it aggressively protects its
citizenry’s right to good health; safe air, water,
and food; and the enrichment of America’s
national heritage and God’s creation.
The struggle for control of water is intertwined
with the fight to preserve democracy from the
corrosive impacts of expanding corporate power.
The best measure of how a democracy functions
is how it distributes the goods of the land; the air,
waters, wandering animals, fisheri es, and public
lands, otherwise known as the “public trust,” or
the “commons.” By their nature these resources
cannot be reduced to private property but are
the shared assets of all the people held in trust for
future generations.
Since ancient times, the laws of all just and
equitable nations have protected these public
trust assets as the property of all citizens, be they
humble or noble, rich or poor. Roman law,
our most ancient legal heritage, held that the
most fundamental “natural,” or God-given, law
required that the “air, running water, the sea,
and consequently the sea shore” could not be
owned as private property but were “common
to all” Roman citizens. The Romans vigorously
protected the waterways and the resources of the
sea, seashores, estuaries, wetlands, and fisherie from
control by private individuals. Everyone has the
right to use the commons, but only in a way that
does not diminish its use by others.
The first acts of a tyranny invariably include
efforts of privatize the commons. Despotic
governments typically allows favored persons
or powerful entities to capture and consolidate
the public trust and steal
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the commonwealth from its citizens.
Following Rome’s collapse, Europe’s kings
and feudal lords appropriated public trust assets,
including rivers and streams, and dispensed them
without regard to public rights. In the early years
of the thirteenth century, Britain’s King John
fenced in England’s forests and streams, erected
navigational tolls, and placed weirs in the rivers in
order to sell private monopolies to the fisheries.
The exclusion of the public from the rivers and
waterways, and the stifling of commerce that
ensued, helped prompt a citizen’s revolt. In 1215
angry, armed citizens confronted King John at
Runnymede, forcing him to sign the Magna
Carta, which laid the foundation for constitutional
democracy by guaranteeing the personal liberties
of the people of England. Centuries later it served
as the blueprint for the Bill of Rights in the U.S.
Constitution. Among the rights reaffirmed by
the Magna Carta were “liberty of navigation”
and a “free fishery” so that, according to Britain’s
seminal legal authority, Sir William Blackstone,
“the rivers that were fenced [by the King] were
directed to be laid open.” Subsequent court
decisions interpreted the document to mean that
“the King was trustee” holding public waters “as
protector of public and common rights” and that
“he could not appropriate them to his own use.”
Eleventh-century French law provided that “the
running water and springs … are not to be held
by lords … nor are they to be maintained … in
any other way than that their people may always
be able to use them.” Thirteenth-century Spanish
law likewise ensured the public inalienable rights
to rivers, springs, and shores.
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