WaterClaim

Nebraska Department of Natural Resources Director Brian Dunnigan said this morning he couldn't discuss details of any proposals still under consideration, but he told the Hub that plans were being made for a Sept. 17 public meeting somewhere in the Republican Basin to discuss possible compact compliance options.

In a statement this morning, Heineman said he met last week with officials of the Lower, Middle and Upper Republican NRDs.

"They told me that they are working with the Department of Natural Resources to develop integrated management plans that would be in compliance with the three-state compact during water-short years," Heineman said. "The general managers of the NRDs, Mike Clements, Dan Smith and Jasper Fanning, indicated they thought they would have mutually agreeable plans by Dec. 1."

http://tinyurl.com/kueplt

Note that Government officials no longer even attempt to hide that many policy discussions have been happening in secret. It should not surprise them when many of those plans are challenged in Court because they have ignored the people they are attempting to impose the plans on object. Failure to involve people in the development of the solution is good formula to lose their support.

Posted by Steve Smith at 09:16 PM | Permalink | Comments (0)

As a society, we use a representative form of government. That means that we choose one individual to take the time to study the issue and to attend the meetings so that hundreds or thousands of others don’t have to do so. We trust that person to speak for us, to defend our interests, to keep us informed, to involve those who are interested in the issues, and to make the best decision for the community.

However, it is human nature to dislike being asked to explain one’s self, to justify controversial decisions, to answer questions, and to express ideas that we know some of the neighbors will not like. It is so much easier to exclude the people that one represents from the process and to just make the decisions. It takes less time; you don’t have to repeat yourself; and you don’t have to think of all those exceptions and competing ideas. It is just less stressful to shut out everyone.

It is because of this human tendency that the Open Meetings and Open Records laws exist. These laws are the counterweight to the natural desire to be liked and for representatives to feel that they own the information to which their position gives them privileged access. The Nebraska laws permit exceptions to the openness requirements specifically for when the government deals with employee discipline, negotiations regarding wages and purchases, and strategy sessions where the government entity is a party to a lawsuit. The law also permits other undefined things which only a judge can decide if they are justified on a case-by-case basis. One thing the law specifically requires to be open to the public is policy discussions. It requires open meetings and records not only on just the vote regarding policy but also on the discussions that help the representatives make a decision as to what policy is best.

The public has a right to know what the representative hears, what ideas factor into their decision making process, who is pushing for what, and the concerns of the representative. How does the elected person make their decision? This one individual usually represents hundreds or thousands and, sometimes, millions of people. The people they represent have a right to influence them and to know who else is influencing them.

The primary law enforcement office of the State is the Attorney General. It is this elected individual’s job to make sure the laws of the State are enforced. This includes the open meeting and open records laws. It is not this individual’s job or the job of his office to make policy but rather to enforce the policy that others make.

However, individuals in the Nebraska Attorney General’s office have taken a personal interest in water policy, and have done so for several years. They have helped craft the language of interstate water agreements and, then, lobbied the legislature and NRDs to adopt policy that will conform to these agreements. Where the Attorney General’s office has crossed the line is where it has cloaked these discussions in secrecy and exempted themselves and those with whom they talk policy from the Open Meetings and Open Records laws, saying that the lawsuit strategy session clauses of the Open Meeting laws trump the requirement that policy discussions be public.

Human nature prefers to exclude the stress of having to listen to critics and to answer questions. Many elected board members welcome it when the chief law enforcement office of the State says they can talk policy in secret, sub-committee meetings and closed door board meetings. Who will challenge the powerful executive office when it threatens the policy branch of government with exclusion from the policy meetings, especially when it is so much easier and desirable to close the doors anyway?

One of the reasons the judicial branch of government exists is to keep the other two branches honest. When the executive and/or legislative branches decide to collude against the people they represent, then it is the job of the judicial branch to bring these offending parties back into alignment with the laws and Constitution.

The biggest hurdle is the cost and time it takes to cause the judicial branch to become involved. It takes a persistent and well-funded individual or group of individuals to cause the judicial branch to hold all of the parties accountable, especially when members of both the policy and executive branches can use tax money and are still determined to find ways around the Court’s directives. If that individual or group of individuals doesn’t exist or cannot afford to invoke the system, then the representative form of government fails.

Posted by Steve Smith at 11:11 AM | Permalink | Comments (0)

The State of Nebraska and the Republican River Basin (RRB) NRDs have been holding policy discussions in executive session secret sub-committee meetings again. Shortly after the Arbitrator ruled on June 30th that Nebraska was not doing enough to keep itself in compliance, the RRB NRD managers were summoned to Lincoln to hold discussions with the Governor’s representatives and with the Attorney General’s office. One of the ideas floated was the prospect of shutting off all irrigation wells within a five mile wide swath of every stream and tributary in the RRB. The managers then informed a few members of their boards, usually the executive committees. These few individuals then talked to their personal friends and, anonymously, to some of the people in the press. Then on August 20, the AG’s office met with the full board of each of the NRDs to inform them of the idea and said that they would need to add it into their 2010 Integrated Management Plans. The board members were informed by the AG’s office that if they talked to the public about this idea, they would not be permitted to attend any future executive sessions.

The Attorney General’s office justified this discussion of public policy behind closed doors by saying that this was “just an idea.” And, since it was an idea that Kansas could use against Nebraska in its ongoing case, this permitted the discussion to be held in secret. The fact that this idea was first proposed by Kansas seems to escape the State’s chief law enforcement office. The idea that all wells close to the stream might be forced to be shut off is no secret and how Nebraska responds to this idea is of public interest and, therefore, the discussion should be public.

However, when the office that is responsible for enforcing the law is encouraging people to ignore the law, it makes things difficult for the NRDs and the public. This isn’t the first time the AG’s office has employed such tactics. I believe that the AG’s office has repeatedly encouraged the NRDs to conduct policy discussions in secret and has provided legal advice to the NRDs on how to avoid public discussions of policy.

The AG’s office is heavily involved in making Nebraska water policy. The AG’s office attends nearly all water discussions by the various NRDs and also lobbies Legislators, encouraging them to adopt or reject various language in water-related legislation.

During the executive session held on the 20th, the NRDs were informed that if they did not adopt the new water restrictions on wells close to the stream, that issue would be taken to the Interrelated Water Review Board (which the NRDs fear because all of its members are appointed by the Governor) and that their authority would be taken from them on this matter. In other words, “Shoot your neighbor, or we will do it for you and you will lose your influence on other things you care about as well.”

Why does the State want to hide this? Why do the NRDs cooperate with this abuse? Obviously, a few executive board members decided the Governor and Attorney General were wrong to try and force this without informing the public, so they leaked the information. They did so anonymously for fear of retaliation by the State.

Now that the State’s position is public, it is possible that the State will take a harder line with the NRDs. The State had argued that if the NRDs had offered up something a bit less than a total shut off of wells close to the stream, then the full shut down might not be required. But, since someone on an NRD board is pointing the finger at the State and making the State look like the bad guy, then “the gloves come off.” Will the NRDs and the people of the Republican River Basin suffer for revealing the State’s position?

In my opinion, the best defense the NRDs have is to put everything said on public record. Make public every demand and every threat made by the State. Let the public see what is at stake. Let the public see why some unpopular decisions will be made. Let the public see that the State has been playing one NRD against the other. Let it be known that the information given by the State in public and in private is not always the same. The public needs to know what options the NRDs are considering in response to the demands and threats. The idea that the NRDs need to conspire with the State to make good policy is false, and it has led to the adoption of a flawed computer simulation, among other things. It has caused the NRDs to accept things like the definition of Quick Response, even though there is no legal basis nor authority for the State to impose its definition.

The NRDs need to make a decision. Will they continue to conspire with the State in secret policy meetings to implement a flawed computer simulation, thinking that by cooperating they can gain more than they can by keeping the people they were elected to represent informed?

It is my opinion that the public will rally to the defense of the NRD, if the NRD is honest and open with the public. Helping the State hide its position only alienates the public from the NRD and creates a cynical public that is less likely to accept workable solutions. An ignored and cynical public is more likely to file lawsuits removing the issue from the hands of the politicians and putting it in the hands of the Courts. Peaceful resolutions are more likely when the public is included in the solution.

Posted by Steve Smith at 04:05 PM | Permalink | Comments (0)