Pinchot, Property Rights, and Western Water: A Reply to Gregory Hobbs

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At the risk of extending this already prolonged debate, I want to make three brief points in reply to Greg Hobbs' response to my response to his diatribe on the Long's Peak report.(1) First, Hobbs claims that my assertion that Gifford Pinchot's multiple use paradigm "bears little or no resemblance to how water is allocated in the West"(2) is "incredibly unsupported," and that adherence to the recommendations contained in the Long's Peak report "would sacrifice the public interest multi-use paradigm which was the birthright of progressive conservationism."(3) Hobbs is able to set the Long's Peak report against Pinchot's progressive conservation ideal only by mischaracterizing the report's recommendations, which I pointed out earlier.(4) Here, I want to emphasize that Hobbs mischaracterizes not only the Long's Peak recommendations but Pinchot's brand of conservation as well.

Pinchot's call for multiple use was not simply a call for development of water resources, it was a call for centralized, federal regulation of waterways. Hobbs notes that Pinchot was opposed to monopolies.(5) Antimonopoly to a progressive conservationist like Pinchot meant federal control to prevent concentrations of wealth. Pinchot himself equated effective antimonopoly policies with federal control:

[Conservation policy must] see to it that the rights of the people to govern themselves shall not be controlled by great monopolies through their power over natural resources.

Two of the principal ways in which lack of Conservation works out in damage to the general welfare are: (A) by destruction of forests, erosion of soils, injury of waterways, and waste of nonrenewable resources. Here is a strong reason for Government control. (B) by monopoly of natural and human resources, their products and application....

Monopoly on the loose is a source of many of the economic, political, and social evils which afflict the sons of men. Its abolition or regulation is an inseparable part of Conservation policy.(6)

As a result of sentiments like these, Pinchot supported the Inland Waterways Commission's 1908 call for centralized, national water planning, limited-term water power licenses, and "above all" (Pinchot's words) retention of federal title to all power sites.(7) Pinchot's conservation paradigm of basinwide, scientific planning by nonpolitical experts, limited private rights, and public ownership of resources has little in common with Western water law, which is largely a private rights system premised on no scientific government planning. Western water law's ideological ancestor is the law of the mining camps or the law of wild animals, not Pinchot's progressive conservation, which was actually a reaction against the resource monopolization that accompanied such private rights allocation systems. Hobbs' attempt to align his defense of Western water allocation with Pinchot is premised on a complete misunderstanding of the motivating forces of progressive conservation.(8)

The second point I wish to make concerns Hobbs' acknowledgment that nuisance law imposes limits on water rights.(9) Thus, property rights in water are no different than property rights in land; both are constrained by the notion that a rights holder cannot unreasonably interfere with the rights of another (private nuisance) or with the rights of the public (public nuisance).(10) In this respect, both land and water rights are contingent and flexible, able to accommodate the felt necessities of the day. Western water law's prohibition against waste is a prime example of proscribed nuisance-like behavior. Other nuisance-like activities include the pollution of waterbodies and the eradication of wildlife species. As Professor Sax has pointed out, property rights to use water do not include a compensable right to pollute water or to destroy water-dependent species.(11)

It may be argued in the wake of the Supreme Court's decision in Lucas v. …