Democracy Denied in Small Town, USA
by: Mt. Shasta Community Rights Project, Molly Brown Posted on: February 17, 2013
Photo: Daniel Schwen, Wikimedia Commons
Editor’s Note: Read the story of the inner workings of Mt. Shasta, California’s effort to pass a Community Water Rights and Self-Government Ordinance. Hear how the citizens of this small town were, as our author states, “denied their right to vote on this admittedly controversial measure.” The Ordinance would have banned corporate cloud seeding and water extraction.
“[T]hose of us involved in the Ordinance project are part of the Mount Shasta watershed protecting itself.” –Author, Molly Brown, Mt. Shasta Resident
I live in the beautiful small town of Mt. Shasta (population 3,500) in far northern California. The town is nestled at the base of Mount Shasta, a 14,170-foot volcano that last erupted some 500 years ago. The town is surrounded by mountains and forests, high mountain lakes are scattered throughout. The headwaters of the mighty Sacramento River flow out of a spring in our City Park. In short, I live in paradise, and along with many other citizens of South Siskiyou County, I want to preserve it for generations to come.
Mt. Shasta Community Water Rights and Self-Government Ordinance
A year and a half ago, a friend asked me to attend a meeting of a group promoting a citizen initiative called the Mt. Shasta Community Water Rights and Self-Government Ordinance. The group of younger (than me) people inspired me to join the effort, just for the pleasure of working with such a committed, intelligent, heart-centered group.
I knew that this group had formed in response to a cloud seeding program that PG&E, a California public utilities corporation, was proposing nearby. PG&E wanted to cloud-seed in hopes of artificially forcing clouds to rain upstream of their hydroelectric dams. Citizens concerned about this program had soon discovered that there was absolutely no regulation of this activity as long as the towers that would expel the cloud-seeding chemicals were located on private land—never mind that the chemicals would travel onto neighboring properties. The utility was required only to place a notice in the local paper, and nothing more—no Environmental Impact Report, no permit from the county, no oversight whatsoever. We receive no power from PG&E but would have to deal with any weather complications from the cloud seeding, and endure any chemical side effects—with no benefit and no recourse!
Shannon Biggs of Global Exchange contacted the group and offered help. Her “Community Rights Program” assists communities confronted by corporate harms to enact laws that place the rights of communities and the rights of Nature above the claimed “rights” of corporations. She also put the group in contact with the Community Environmental Legal Defense Fund (CELDF), which has helped over 150 communities on the East Coast to pass laws that have successfully barred harmful corporate activities. Shannon and Ben Price from CELDF taught a “Democracy School” to interested people in Mt. Shasta, who then launched the ordinance project. The School introduced the concept of rights-based law, which derives its authority from citizens’ rights to local self-government and to a healthy environment, and the rights of natural communities and ecosystems to survive and thrive (also called “the Rights of Nature”). Rights-based laws can prohibit specified harmful activities outright.
The Rights of Nature
Law based on the “rights of Nature” makes so much sense to me. I was pleased to learn, a couple of years ago, that Ecuador, with some help from CELDF, had incorporated the concept into a new constitution. Yes, I want to protect our water from pollution and predatory extraction, but it seems to me that we need to work upstream from that, to protect whole ecosystems and the biosphere itself. Legislation based on the Rights of Nature seems like one good method to accomplish that.
People attending Democracy School decided to create a rights-based Ordinance in our small town of Mt. Shasta aimed at prohibiting not only cloud seeding, but also corporate water extraction for export and resale outside the city limits. The multinational corporation Nestle was at that time trying to set up a huge water-bottling plant in the nearby town of McCloud. The group also decided to include a prohibition against “chemical trespass” from nearby cloud seeding. In addition, the ordinance aimed to assert our community’s right to local self-governance as superior to rights of corporations within our community.
The Citizens’ Initiative Process
I joined the group within a few weeks of Democracy School, and initially remained in the background. Angelina Cook, Ami Marcus, Rene Henery, Tatiana Diakoff, and Ed Gardner initially took the lead, supported by Carolyn Real, Vicki Gold, Jan DiStefano, Jennifer Mathews, Wendy Flynn, and me. Later, Melinda Wiley and Paula Kressley joined us. The group put on a series of town meetings to get input from the community about the substance of the Ordinance, and to begin the process of education about this new kind of rights-based law. Most of the people who attended these meetings were in the choir: environmentally minded and politically progressive. Nevertheless, they had some concerns that the group took into account as they worked with CELDF to fine-tune and finalize the Ordinance.
One frustrating situation occurred during this period. Some of the key members of our group met with a member of the City Council and the Mayor at that time. The Mayor suggested some “whereas” clauses that the group agreed to include in a preamble. He then promised to read the Ordinance draft over the weekend and give his feedback to the group. He never did this, nor did any other member of the City Council offer input. After waiting six weeks, the group decided to take the first step in the Initiative process: filing with the City Clerk the Intention to Circulate a Petition and the Request for a Title and Summary (to be prepared by the City Attorney).
The Ordinance Title and Summary
The City Attorney, who apparently neither liked nor understood the Ordinance, prepared a Title and Summary to appear on the petition we believed would seriously mislead voters. We requested several changes, but the Attorney agreed to only a few minor corrections, leaving in phrases such as: “creating liability for and restricting rights of corporations” and “abolishing conflicting private property rights.” In fact, the restricted “conflicting property rights” ONLY for corporations violating the specific prohibitions against water bottling and cloud seeding. In the end, because our only recourse was to take the matter to court, we decided to tolerate the distorted title and summary and move ahead with the signature-gathering campaign. The distortions proved, however, to be a severe blow to the process by triggering opposition focused narrowly on the supposed threat to private property rights in general.
Initially, we focused on tabling in public places and at community events to gather signatures. When it got too cold for that, we began going door-to-door. During this time, various other members of our volunteer group and I wrote Letters to the Editor, a more lengthy Guest Opinion in the local weekly newspaper, and an article for the local Ecology Center newsletter, to keep the issue before the public. We also held a couple of community events featuring documentary films on water issues.
Ami Marcus worked closely with both the City Clerk and the County Clerk to follow proper procedures as we went along. In April the County Clerk verified the signatures, impelling the City Council to either pass the Ordinance or place it on a ballot. The City Council put an action item on the agenda of their next meeting, to take place on April 26.
Presenting the Ordinance to the City Council
At this time two City Council members had lengthy conference calls with Thomas Linzey of CELDF and members of our group. At our invitation, Thomas Linzey traveled to Mt. Shasta to attend the April 26 City Council meeting, and to lead an informational session for the community preceding the meeting.
Nearly 200 community members showed up at the April 26 Council meeting in support of the Ordinance. Over 40 spoke in favor of it, while one spoke against it (fearing job losses and private property problems) and another expressed some misgivings. To our great surprise, the Councilor with whom we had previously worked spoke against the Ordinance, citing a number of concerns that he had brought up in his phone conversation with Thomas Linzey, which we believed Linzey had adequately addressed. We were dumb-founded, having believed him to be a potential ally on the Council, even though he had never given us the feedback he had promised. Only two other Councilors showed any support for what we were trying to do.
The Council voted to ask the City Attorney to prepare a special report on the Ordinance.
Our “Special Report”
In the intervening month, Shannon Biggs of Global Exchange, Ben Price and Thomas Linzey of CELDF, and the writers in our group (Ami Marcus, Jen Matthews, Angelina Cook, Rene Henry, and I) prepared our own “special report” for the Council and the community. In fact, we worked our butts off! Our report gave as much information as we could about our process, the rationale of the Ordinance, the “truths” as opposed to the “myths” about the Ordinance, including Stearn’s concerns, and its historical and legal context.
City Council Votes to Place Ordinance on the Ballot
The community gathered in force again at the May 24 City Council meeting, and a similar number of people spoke in favor of the Ordinance, with the same one man opposed, who was a member of the local Tea Party. This time Ben Price of CELDF and Kirsten Moller of Global Exchange came to town for the meeting. The Councilor who had objected before continued to voice his concerns without any acknowledgment that we had tried to address them; he seemed to have taken a position from which he would not budge.
Nevertheless, the Council was compelled by law to either adopt the Ordinance or put it before the voters in a special election. They voted unanimously to place it on the ballot, consolidating the special election with the general election in November.
It felt really good to pass this milestone. Now we had a campaign to organize and run. We set to work writing and rewriting our Argument In Favor of the Ordinance, to which the County Clerk assigned the designation of “Measure A”. Here’s what we submitted:
Neighbors can disagree on many issues, but we can all come together on one: we residents of Mt. Shasta should decide what happens to our most valuable local resource—water.
State and federal laws let outside corporations extract massive amounts of groundwater from our aquifer and manipulate rainfall through cloud seeding using known toxic chemicals—without local citizens having any say.
The single issue addressed by Measure A is Mt. Shasta residents’ right to water. The intention is to ensure that Mt. Shasta residents regain our right to local self-government, especially our right to decide what happens to local water. It also recognizes the rights of nature and, in doing so, establishes the legal mechanism our city needs to protect the community’s water for future generations. This strengthens local private property rights and shifts the legal balance of power from outside corporations to local citizens.
The Ordinance creates no new rights; rather, it spells out rights “retained by the people” according to the U.S. Constitution’s Ninth Amendment.
Those who thoroughly read and understand Measure A will see that it states broad rights, but enacts only two narrow, enforceable prohibitions: It prohibits corporate water extraction for sale and export, and corporate cloud seeding.
Some City officials oppose this measure because the City would have to enforce it. However, without this measure residents have NO protection against water withdrawals or cloud seeding—activities that may have long-term negative economic, environmental, and health impacts.
Some 300,000 people in other states are living under similar rights-based laws. Only 4 laws out of more than 125 have been challenged. None of these towns has gone bankrupt or had negative impacts to their local economies or individual property rights.
Please read this Ordinance and vote “YES” for local rights and local control of our water.
Now things began to get weird. A Letter to the Editor appeared, castigating the Ordinance for all kinds of imagined wrongs, written by our primary opponent. It became clear that the local Tea Party had taken on the Ordinance.
Then we learned second-hand, and with only a few hours notice, that the City Council was holding a special meeting to vote on the wording of the Argument Against that would appear on the ballot, in addition to the so-called “impartial analysis” that the City Attorney was to submit, which was anything but impartial from our point of view. We hastily gathered a few of our core group to attend, squeezing into a backroom at the City offices. Our strongest ally on the Council, was (conveniently?) out of town, so the matter was decided by the remaining four councilors. The Council did agree to remove some of the more specious arguments from their statement, but included other inaccuracies. To his credit, the Mayor voted “nay” on the Argument, which was approved by the three other councilors. The Council then voted to allow other opponents to write the Rebuttal to the Argument For; presumably this would fall to the local Tea Party.
One of the frustrating aspects of attending City Council meetings is there is never a chance for any dialogue. Citizens are allowed to speak without any comment or response from the Council members, and then the Council members discuss the matter among themselves, with no further input allowed from the citizens, even when the Council is proceeding on the basis of inaccurate information or false assumptions. Everyone spoke from a pre-determined “position,” with no exploration of common ground or problem solving.
Language Change Threatens the Ballot
Things really got tough when one of the proponents discovered a flyer urging people to attend a special City Council meeting the next day, in order to oppose keeping Measure A on the ballot. She went to City Hall and found out that there was indeed a special meeting scheduled to address a 21-word change in language between two versions of the Ordinance (the one initially filed with the City, and the one on the petition that voters had signed). We proponents were aghast, having had no clue that a change had even occurred. We had to appear at the meeting and try to defend the Ordinance process without knowing how this had happened. It turned out that the change in wording had resulted from a clerical error. At the meeting however, the City Attorney, the City Manager, and one of the City Councilors all implied that we proponents had made the change knowingly and deliberately, which could be seen as a violation of the Election Code. Nevertheless, because the City Attorney stated the one-sentence change did not affect the meaning of the Ordinance, the Council voted to take no action to remove it from the ballot.
County Clerk Removes Measure A from Ballot
Then the second shock: On August 19, the proponents learned (again, second hand) that County Clerk Colleen Setzer had removed Measure A from the ballot. In the letter she sent to the City, she cited the change in language as one reason. Her second argument was that she was in fact the City Elections Clerk, and that therefore the initial filing of the “Intention to Circulate a Petition” and the “Request for a Title and Summary” with the City Clerk was invalid. She did not explain why she waited until the eleventh hour to declare this, when she had a full year to bring up this concern. We had filed the initial documents in August 2009, and had worked closely with her ever since in fulfilling the requirements for bringing a citizens’ initiative to the ballot.
Our Election Complaint
When Attorney Tania Rose showed up at this precise moment to offer pro bono help, we decided to file an election complaint with the Siskiyou County Superior Court. Because Setzer’s reasons for removing the measure from the ballot seemed so legally insubstantial, we were certain any reasonable judge would rule in our favor. We worked tirelessly preparing the case, which we were able to file at the Court just before closing time on Friday, August 27.
On September 10, Judge Dixon heard the arguments of the attorneys. The County Attorney argued for Setzer, claiming that it didn’t matter whether Setzer was the official elections clerk or not; either way we proponents had made procedural errors and therefore the measure should not be on the ballot. To view our eleven page long response click here. Judge Dixon more or less dismissed the concern about the language change during the hearing. However, when her ruling came out ten days later, she ruled against returning Measure A to the ballot, stating that Setzer was NOT the City Elections Clerk and therefore didn’t have the authority to put the measure back on the ballot. (She didn’t address the paradox of Setzer having the authority to remove it.) The ruling also claimed the City Council had not passed the proper resolution to place the measure on the ballot, in spite of the fact that City Council had done exactly that, using similar language to resolutions that placed two other measures on the ballot—both of which remained on the ballot without challenge.
Thus the citizens of Mt. Shasta were denied their right to vote on this admittedly controversial measure, and democracy consequently suffered.
Clearly there was opposition to the Ordinance, some of which came from misunderstandings of what it would do. There were also fears that the Ordinance, if passed, would embroil the City in expensive legal challenges from PG&E. These concerns and fears could have contributed to a lively debate during the campaign leading up to the election, but instead apparently led to the Measure being removed from the ballot altogether. We may never know what pressures were brought to bear behind the scenes, and by whom—although we certainly have our suspicions.
We learned more about the influence of the local Tea Party on the County Clerk when she was quoted in a newspaper article the day after the November election:
“I think we are seeing an increase in the number of voters who decline to state their affiliation more than we are seeing a drastic change in specific political parties,” Setzer said. “This year, I think that is driven by the Tea Party movement–people who are voting their conscience and not along political party lines.”
Her sympathy for the Tea Party, which opposed the Ordinance all along, may well have played a role in her decision to remove Measure A from the ballot.
At this point, we had to decide whether or not to appeal the judge’s illogical decision, and how else to move ahead. We decided not to appeal, because the process would take up to 18 months for resolution, and would require a substantial investment of time and money, with no guarantee of success. We asked the City Council to put the measure on the ballot in a special election, but they refused, citing concerns that the measure was unconstitutional anyway, and would probably be thrown out by the courts if passed. It seemed that the whole project was dead in the water.
Not so—it was just the end of Round One.
Ami Marcus was invited to participate on a panel on the Rights of Nature at the annual Bioneers Conference in San Rafael, CA. Over 400 people attended that panel and vocally expressed their support for our group’s attempts to pass a rights-based ordinance in our small town. Over the next week, Ami received many phone calls, some offering support, some requesting interviews. This helped us to see how our local efforts were a part of a larger movement for a saner legal system to empower the life needs of all the world’s citizens and creatures against the short-term profits of corporations. We realize that we have not failed; the tortured political system of Siskiyou County has failed us, and therefore all its citizens. Now we find renewed determination to defend local self-government and the Rights of Nature.
I am reminded of a quotation from deep ecologist and rainforest defender John Seed:
“I am protecting the rainforest” develops to “I am part of the rainforest protecting myself. I am that part of the rainforest recently emerged into thinking.”
Similarly, those of us involved in the Ordinance project are part of the Mount Shasta watershed protecting itself. This understanding can revolutionize our attitudes and energize us for the work ahead.
This energy could lead us along numerous paths, only one of which may be continuing the work on this Ordinance. Alternatively, we may conclude that our work has already accomplished what is possible at this time, and find other avenues for our energies and talents—and for our commitment to democracy, local self-government, and our precious water.
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