Wealth and Want
... because democracy alone is not enough to produce widely shared prosperity.
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Mason Gaffney: 18 Fallacies
1. "Water rights are real property"

Wrong! To begin, the word 'right' is wrong. A right is something like free speech, possessed by everyone. The only water rights, properly speaking, are common, which present water permits certainly are not.

Private water interests are claims, licenses, permits, holdings, reservations, privileges, or possessions. I do not say 'property,' except in reference to the state, water is the property of the states.

Most private water claims are licenses, at least in the 17 western states. Most state constitutions read that the water of a state belongs to the state (in trust for the people of the state).

If economists have two hands, (on the other hand!) a lawyer has more than a squid has arms, and as much ink to darken the waters. Murky ideas make for clouded titles and blinded citizens. Now and again, however, one finds a pure ray of light like this from Oregon Chief Justice McBride: -- "It does not seem to me that a license to appropriate water in this State ever rose above the dignity of a mere privilege over which The legislature has complete control."

A water license has about the same standing as

  • the privilege some airlines had (before deregulation) to occupy certain airport gates and time slots;
  • the privilege of a cab to work the streets of New York after securing a medallion;
  • a license from the FCC to use a specified frequency; or
  • a grazing permit on Federal lands.
It is like the old Oregon and California Railroad land grant which was revested when the grantee failed to perform. It is subject to conditions and to forfeiture for failure to meet same.

The evidence is, you do not find water licenses recorded like title deeds to real property. More important, you do not find them on the real estate tax rolls. Never have I heard a licensee demand to be taxed because he holds real property.

Lawyers habitually intone 'property' when describing water permits, especially their clients'. This is ceremonial and tendentious, to bolster the particular case.

It is also a group shibboleth, to bolster all clients' cases against all the outside, unlicensed public. Call it a class bias. After all, most lawyers get in this field to represent licensees, individually and collectively.

The upshot is that The Legislature has more latent power than most of us imagine. As electors and citizens our hands are not fled, but rather our minds. That's part of a lawyer's job, and they are good at it.... Read the whole article

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Wealth and Want
... because democracy alone hasn't yet led to a society in which all can prosper