Response to the letters to the editor by the URNRD executive members

Tom Terryberry, Greg Pelster, and Terry Martin accuse me in an Imperial Republican letter to the editor of deliberately misleading the public.  That is a nice way of accusing me of lying for the purpose of hurting the NRD.  They, then, go on to say that between 1998 and 2003. the URNRD caused 44% of the depletions to the Republican River. They also insisted that no public policy was decided in closed sessions.  Tom Terryberry, in a separate letter, says that I have accused the URNRD and the State of conspiring to hurt the farmers of the region.

My response is this:

1. Conspiracy - I do not believe that the URNRD and the State have conspired to hurt the farmers of the area.  I do believe the URNRD and the State have conspired to hide the facts from the public and to make policy without meaningful input from the public.   I believe that most of the URNRD board has the best interest of the District in mind; however, I also think the URNRD has accepted numbers, provided by the State in private sessions, that are incorrect.  The executive committee of the URNRD has trusted the DNR numbers and statements and has agreed to keep these reports from the public.  I do not think it is the intent of the negotiating committee to hurt the District; but, I think that may be the unwitting result of a reliance on bad numbers.  By agreeing to keep these numbers from the public, the URNRD is at the mercy of the State.  
2. Policy vs. Negotiations - The URNRD has decided to call much of what it does in the creation of the Integrated Management Plans (IMPs), “negotiations.”  The language of each paragraph, the percentages for which the District is responsible, the rules on how to deal with carryover, and the methods of assuring compliance are some of the things that make up the IMP.  The IMP contains the policies of the URNRD that is reviewed and approved by the DNR.  The IMP controls how much water each acre is permitted, who can use the water, and what will happen under a variety of circumstances.  I would call the IMP “policy.”  The IMP was formed by the negotiating committee consisting of Tom Terryberry, Kenny Owens, Greg Pelster, Dean Large, and Terry Martin while working closely with Jasper Fanning and attorneys Joel Burke and Tom Davidson.  I believe the decisions of what was and was not in the IMP were made by these individuals and then shown to the full NRD board in closed sessions.  After the private drafting and review of the document, then the board takes a public vote.

This is one of the primary areas of disagreement between WaterClaim and the URNRD.  We believe the formation of the IMP was the formation of policy.  The URNRD insists, with great passion, that no policy formation and no decisions were made by the Negotiating Committee or the Board until the group was in public.  They rely on the idea that a decision has not happened until there is a vote of the Board.  Anything prior to the vote is a “negotiation” rather than policy formation.

In practice, this means the IMP comes into existence at the moment of the vote and anything prior to that were just ideas.

WaterClaim and a large number of people disagree with this idea, as advocated by the URNRD.   Because we were unable to persuade the Board through polite requests, we decided the best way to resolve the question was by asking a Judge to determine which interpretation was correct.  That request continually provokes an angry response from the URNRD.

3. Lawsuit - Not only does the URNRD Board believe that most of the discussions must be made in private, they are also very unhappy that we asked a judge to open up the process.   The way the lawsuit works is this: 
   1. We filed a complaint with the district court. 
   2. The URNRD responded to the compliant and asked that the judge tell us to go away.
   3. The judge said that the question is worth reviewing, so asked for the discovery process to begin.  Discovery is where the people who brought the compliant are allowed to collect information and ask the defendants questions that will help put all of the facts on the table so the judge can make an informed decision.  The plaintiffs may formally ask the defendants, under oath, a set of questions.  The questions can be about anything relevant to the complaint. 
   4. One of the first questions was, Who from the negotiating committee reported back to the full Board in closed session?  The URNRD Board members didn’t like the question, refused to answer it, and walked out.
   5. The URNRD Board filed a series of motions with the judge, attempting to block the questions.  The judge ruled against the URNRD Board and said that they must answer -- it is how the process works.
   6. The URNRD disliked that ruling and refused to show up for the questions.  We again went to the judge.  This time, the court fined the URNRD Board for their refusal to participate. The judge also set a deadline of May 1, 2006 for the URNRD Board to submit to the questions. 
   7. To date, the URNRD Board has refused to schedule a time for these questions to be taken and recorded.

The complaint was originally filed by WaterClaim and a number of individuals.  There was a question as to whether an organization could file the complaint because an organization is not a citizen and only citizens can file such complaints.  The judge decided not to rule on this question but did grant one of the URNRD Board’s requests.  The URNRD Board had demanded that WaterClaim turn over the names on its membership list and the amount each had given to WaterClaim.   WaterClaim discussed whether this was relevant to the question of whether URNRD policy is made in closed session or not.  We did not feel that it was, but the judge ruled that the names of the citizens should be given, if we were to remain a part of the complaint.  So, WaterClaim decided that the complaint could proceed and an answer obtained without revealing our membership list and the amount each gave if it just pulled out.  So, WaterClaim removed its name from the list of plaintiffs, but the original individuals still listed on the complaint continued with it.  The remaining plaintiffs are Gregg Smith, Scot German, Mark and Julie Ferguson, and John and Wilma Ferguson.  Each is a member of WaterClaim.

All WaterClaim members are very appreciative that these individuals are willing to put their name out in the public.  There are a number of WaterClaim members who prefer their name not to be public.  This is because the URNRD Board has the power to grant and deny permits that deal with water and also because some of the businesses have URNRD Board members as customers.  In other words, there is a concern that the URNRD board will retaliate against those who want the question answered.  And, based on the actions and comments of the Board, we believe this concern is valid.

Several farmers have had permits turned down that they didn’t think should be turned down except that they were members of WaterClaim. 

Several years ago, Gregg Smith was an URNRD Board member, and there were no compliant about his service.  Then, when he moved into town, he had to resign because he moved out of the district he represented.  When Kenny Owens resigned, Gregg (now in Kenny’s district) applied to be on the Board.  However, the URNRD Board made it clear that it did not want Gregg on the Board, even though he was the only applicant for the position for several months.  This was specifically because he is a member of WaterClaim.  Instead, Jasper Fanning went forth to solicit someone for the position.  After several months of leaving the seat open, Jasper found Ron Milner.

Also, the Board was persuaded to create a citizens committee that would take input from the public.  Jerry Kuenning, member of the URNRD Board and chair of the citizens committee, let it be known that he thought the idea was very bad and he had no intention of doing anything more than attend.  Then, when the only people to attend the committee turned out to be WaterClaim members, the Board decided to not call another citizens committee meeting.   

In other words, WaterClaim withdrew its name from the complaint rather than reveal who and how much each person gave to WaterClaim.  We felt there were ample reasons to believe the information would be used against the individuals.  We could have challenged the judge’s decision, but we didn’t feel it was worth the delay.  So, WaterClaim pulled out.  And, the individuals listed on the complaint wanted to proceed.  That is the status of the case up to this point.

4. 44% vs 27% - WaterClaim has asked and continues to ask the URNRD to produce the document that shows the depletions to the stream that are caused by each District.  To our knowledge, this report has never been made public, even though the numbers that it supposedly cites are the basis for the decisions the URNRD has made. 

It is this inability to access public documents that is very frustrating.  On one hand, the URNRD Board says it has asked for the document from the DNR but has been unable to get it.  Yet, at the same time, the URNRD Board asserts with authority that depletions caused by the District is 44%.  Where are the documents that support this statement?  The URNRD Board also says that upland wells cause a substantial amount of depletion to the stream.  We would like to see the documents that show this information for each district. 

Either the URNRD Board has these documents and is withholding them from the public, or the URNRD does not have them and they are relying on the DNR for the information.  Perhaps this is information that is only given to the negotiating committee in secret meetings.

Because the DNR and the URNRD Board refuse to release basic numbers, WaterClaim has sought and found the source data.  We have taken the scraps of information that we have been able to force from the system with open records requests and compared this information to the official reports made by the Republican River Compact Administration.

We have found that there are a number of inconsistencies in what the DNR and the URNRD Board says.  We have found serious problems with the numbers on which policy makers are relying. 

Rather than condemn us for finding that there are problems, it would be in the best interest of the public they serve for the DNR and the URNRD Board to find out if we are correct and, if so, fix the problem.  It would also be nice for the public to be informed.

But, the URNRD Board seems to think that it is better to condemn the messenger than to consider there might be a problem with the secret numbers on which they have been relying.

5. Personal -  The letters by Terryberry, Pelster and Martin imply that all of the problems are caused by me personally.  However, I am just the most visible part of WaterClaim.  WaterClaim represents about 25% of the land in the URNRD.  We have both farmers and businesses that are members.  If this were just me, then I wouldn’t have the money nor the support necessary to continue.  Some days get pretty discouraging, and that is when the members step in and provide the moral support that keeps things going.

No matter how hard I have tried to be polite and to give the benefit of the doubt to the URNRD board, my every question seems to get under the skin of certain URNRD Board members.  Perhaps someone else could do a better job of asking the questions in a better way, but I am the person who has taken the time to be the tip of the WaterClaim iceberg.  For the last two years, I have done this on a volunteer basis.  This is an important issue that affects a lot of people.

Unfortunately, I think the only way this issue gets resolved, both short term and long term, is if we have different people sit on the URNRD Board.  Most of our complaints are with the people who have been on the Board for more than 10 years.  For some reason, it seems that the longer a person sits on a Board, the less responsive they become to the people they represent. 

As a result, WaterClaim has now turned its focus to the elections.  It will be up to the voters to decide how this issue is resolved.  If the voters decide to keep the current URNRD Board, then I think there will be continued secret policy decisions as well as a slow shutdown of irrigation.  I also think there is a much higher risk that a federal judge will step in and order the immediate shut down of all irrigation.  

If the voters decide to try new people, then the decisions will still be difficult; but instead of it being 5 guys, a manager and two lawyers secretly deciding our future, the public would be informed and involved.  This will allow us, as a community, to work together to find solutions that will both protect the aquifer and the economy.