Not in My Back Yard

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Charles F. Outland
Sespe Gunsmoke. An Epic Case of Ranchers vs Squatters.
Arthur Clarke & Ventura County Museum, 1991

This drama plays in the Santa Clara River Valley, between Arroya Piru and Arroya Mupu (Santa Paula), in the period 1850-1900. In 1848 the Mexican Land Grants were recognized by the US in the Treaty of Guadelupe-Hidalgo. After 1850 many of the large grants (often 20,000 acres and more) were bought by wealthy persons from the original grantees, usually for very little money.

At the same time there was the 1841 Homestead Act, which gave everybody the right to occupy 160 acres of public land, and pay the government $ 1.25 per acre. In the 1862 upgrade this fee was even waived. The conflict between the Treaty and the Homestead Act created class warfare, because the settlers coming to California had to argue the land grants were fakes, so that the land reverted to public domain and could be settled. The press in most places took the side of the settlers and railed against the rich landowners. The boosters wanted to get more people to California, and needed public lands for settlement as well.

In the Sespe this lead to murder. In 1877 rich landowner T. Wallace More was killed at his home by a hooded party of squatters (i.e. settlers on private land). The book by Outland describes the details of the trials (in which the judges, prosecuters, and defense attorney’s were basically all corrupt) and the reporting in the local newspapers (all extremely biased, all at war with each other, often involved in cover-ups, and all filled with the most delicious invective). There is a never-ending parade of arrogant, criminal, greedy, and moronic persons, in which almost everybody lies through their teeth from beginning to end.

The book starts out with a repeatable quote from murder victim T.W. Moore. When asked to describe his property he said (allegedly):

From Yon Mountain to Yon Mountain
From Yon Mountain to Yon Mountain
and from Heaven to Hell, by God.

Now that’s poetry.

There is a little known article on Edward Fitzgerald Beale at

http://www.cuddyvalley.org/beale_naval.pdf

This is from US Naval Institute Proceedings, 1949. It gives some general biographical info on Beale, and concentrates on his 1848 cross-country voyage to bring the first California gold to Washington.

The writer of the piece emphasizes above all that Beale, the Navy courier, made the voyage so much faster than Loesser, the Army courier, who was also traveling with news of the gold. That seems to be all-important. Boys will be boys.

The story is written in the usual western hero — six-shooters blazing and faithful Mexican guide — mode, although it also tells us that Beale used part of the gold he heroically brought from California for a wedding ring. What more can one want. Those were the days. On the other hand, it may also have been one of the first instances of Beale appropriating federal property for personal gain.

They key to the whole problem of “illegal immigration” is, of course, the fact that there are rich and poor countries. And the main reason countries are poor is that they have been exploited for centuries by the rich countries, both European and American. They were sucked dry, no decent infrastructure was put in place, and local culture and history were destroyed as thoroughly as possible. But although poor countries have little infrastructure, they do have a huge pool of inexpensive labor. And the higher their birth rates, the more of this valuable resource they produce. And, in some cases, they have valuable natural resources as well — it’s unfortunate, but true.

Locally, the root cause is that employers get away with paying a fraction of regular wages to “illegal immigrants”. It’s not that legal residents don’t want to do the dirty work, it’s just that they don’t want to do the dirty work for the wages paid to “illegal immigrants”". Getting rid of this low-wage system will have huge consequences for prices, and consequently for the trade balance. More and more products would be imported from low-wage countries and more and more money would be transfered to low-wage countries, thus changing the balance sheet of the global economy. If you ban “illegal immigration” the wages for legal workers will have to come down, because otherwise eventually nothing will be produced locally any more.

Where did the expanding American economy traditionally get its inexpensive labour ? Well, initially from slavery, a large scale form of legal immigration. Then from multiple immigration waves, each time admitting large numbers of low-wage workers, and each time ruthlessly suppressing all attempts to organize (i.e. to drive up the costs of labor). Then, from setting up various kinds of sweatshops in Pacific and Central American countries. Slavery, immigration waves, and backyard exploitation are no longer options. So now we have “illegal immigration” and “outsourcing”.

Thus the so-called “illegal immigration” problem is the problem of differential wages, also known as the “global economy”. The guiding principle seems to be that it is OK to exploit people, but it is not OK to have these exploited people use our resources. We prefer to exploit them in their own countries, on the other side of the Big Wall, as it were. Thus we protect our culture, our national identity, our national security, our language, our birth rate, and our racial composition. Which are all code words for our wallets, of course.

What we see are the inevitable consequences of hundreds of years of colonialism and capitalist exploitation, with the producers in the rich countries trying to hang on to the privileges of low-cost production that were traditionally enforced by military might. As the Middle East shows, some of the old military mechanisms are still in place. Establishing a client state, and backing it up militarily, is basically the same as setting up a huge franchise to keep labor an material costs down for producers. Producers are now often “multinationals”, but their headquarters are still in the same places. The difference is that their production facilities are outsourced to low-wage countries. And one of these low-wage countries happens to be our very own backyard, the Great Central Valley.

In California groundwater law there is a distinction between correlative use and appropriative use. Correlative use is by the overlying landowners, i.e. the landowners sitting on top of the basin. There are no priorities among different overlying users, but each overlying user can only take their reasonable share. Appropriative use is using groundwater from another basin, one that you are not on top of. Correlative use has priority over appropriative use, same as riparian use of surface water has priority over appropriative use. And anybody in California who uses water must use it for a beneficial purpose — remember that nobody owns water (except bottled water), one only owns the usufructuary right to use it.

For non-surplus appropriative use and for using more than your share of overlying use, you need a prescriptive right, given by a permit. If a basin is overdrafted, then each overlying user may need a prescriptive right (this is an adjudication decision).

Generally, groundwater basins often give rise to what is romantically called “the tragedy of the commons”. If a basin is in equilibrium, i.e. if people pump as much as is replenished, then it is in everybody’s individual interest to pump more. This is because the benefits of having more water yourself outweigh the disadvantage of slightly lowering the water table. It sounds considerably less romantic if you just call it “every man for himself”.

It is of some interest that if the groundwater is judged to be part of a “subterranean stream flowing through known and definite channels” (instead of a percolating aquifer) then every appropriation of water needs an SWRCB permit.

This makes perfectly clear what developers such as Arciero and Tejon want. If the basin is under their land (and only under their land), then they are the only overlying users, and they have a right to the water. There are no other overlying users, so they have absolute priority. Their overlying share is 100%. If their use, however, impacts water level in other basins, then they use the water from the other basins appropriatively, and if that water is non-surplus they need a prescriptive right. If the other basins are fully appropriated already, they cannot get a prescriptive right, so they must stop whatever they are doing. Thus the model they are trying to sell is isolated basins, fully under their land, not interacting with any other groundwater supplies. And certainly not part of an subterranean stream, because that always needs an SWRCB permit.

What Tejon has to do, for instance, is to show that their filling of the lake, and their subsequent water use in TMV, will not impact the Cuddy Canyon and Cuddy Valley groundwater basins. They also have to show that they do not use more than their share of the Castac Lake basin, since there are other overlying users. In the case of Arciero it is pretty clear that there are many other overlying users, and he has to show he is not using more than his reasonable share (and not drawing down upstream water levels as well).

This all seems pretty clear, but the devil is in the details. Unfortunately we cannot see what goes on below the surface. We can guess. Some people guess better than others, they are called geologists or hydrologists. They are expensive to hire. Developers often hire hydrologists through environmental consulting firms, and all an environmental consulting firm has to do is to invent a new groundwater basin entirely under the landowners property. And agencies and judges usually defer to their expertise. Also, it has been argued (in the famous Sax report of 2002) that the distinction between percolating groundwater and subterranean streams is meaningless, or nearly so. In most cases it is clearly impossible to show that there is a “known and definite channel”. It is equally difficult to show that basins are connected or are not connected — even if there is a natural barrier at some level, there may be connections at a lower level. And information about our groundwater basins is very sparse, and not very reliable. Most of it has been paid for by developers, and “whose bread one eats, whose word one speaks”.

What we do know, beyond a reasonable doubt, is that water runs downhill. It is true that there is a non-official California water law saying that water runs uphill, towards where the money is, but in our case it is pretty clear that the money is actually downhill. Frazier Park Estates and Tejon Mountain Village are 1000 feet lower than Cuddy Valley and Cuddy Canyon. If there are connections between the aquifers then taking out water downstream will impact upstream users, and is a form of appropriation, subject to a permit and possible adjudication.

Somebody, I forgot who, asked me at a recent Sierra Club meeting how much water is evaporated by Castac Lake. I assume the amount of water evaporated is at least equal to the amount of water pumped into the Lake, because Tejon wants to maintain its current level. Since snowmelt, runoff and precipitation also get into the Lake, the amount pumped will be (substantially) smaller than the amount evaporated.

The amount of groundwater pumped into the Lake (reported by PACE, Tejon’s consultant) is about 1250 acre feet per year. Or, if you like, about 40 million gallons. Or, alternatively, enough water for about 2000 families of four (without lawns), i.e. for about 8,000 people, the whole population of the mountain communities.

The Lake is 400 acres, so these calculations point to at least three feet of evaporation per year. I have no evaporation data for Tejon, but Wheeler Ridge Maricopa Water Storage District reports about six feet of evaporation per year at Greenlee’s Pasture on the Valley floor. Adding two feet for precipitation and runoff means that water for more than 12,000 people goes up into the air. The map on the GROW webpage also suggests 70 to 80 inches evaporation per year for our area. That implies evaporation may even be as much as 2500 acre feet, double the amount that is pumped, or more than 15,000 people-portions.

Now one could say that Quail, Castaic, Pyramid and Elizabeth Lake evaporate even more water. True, but these artificial reservoirs are used to store runoff water from the rivers up North, they are not natural salt marshes filled with groundwater from our aquifers. Also the primary purpose of the reservoirs is to provide water to all communities of Southern California. Not just to provide fishing and boating for a single gated resort village.

It remains to be seen what influence the massive pumping has on the aquifers in our area. The TMV consultants will no doubt spin the data the usual way: Tejon is pumping from an isolated aquifer entirely under their own land. But that does not explain the alarming drawdown in the high school well in the last year or so, reported by Doug Peters. We are in a perfect drought that may last for a generation. It seems wasteful to let local groundwater, serving thousands of people, just evaporate because of the luxury needs of only a few people. And I have not even calculated the water consumption of the four championship golf courses.

Our local development gives rise to various questions. I think I know the answers, but I’ll write down the questions anyway.

• What happens if a land owner or developer starts a project without applying for permit, although it is clear that if a permit was needed the project would fall under CEQA ? There are various examples in our area that come to mind. The most glaring one is the reconstruction of Castac Lake from a periodically dry salt marsh to a recreationally attractive fishing and gaming center. I can hardly imagine anything else locally (except maybe the I-5) that has as much environmental impact, on the water table, on the wetlands, on the flood plane, on the visuals, on the aquifers, on the wildlife, on the history, and on the cultural resources (think of Kashtiq village). Nevertheless TRC proceeded without any permit application, and consequently did not get into CEQA at all. This seems against the spirit of the law, although maybe not against the letter of it. And this includes, by the way, the obnoxious name change of Castac Lake as well. No permit, no consulting of the BGN, no consulting with the Chumash, nothing of the sort. Just bluntly asserting ownership.

• What happens if a landowner or developer does not wait for a permit but starts their project anyway ? A nice example is the Laval Farms project (SC # 2001061013). Tejon Ranch Company applied for a large number of permits to divert creeks on the north side of the Ranch, over a period of 25 years, but actually carried out the diversions without waiting. Ultimately SWRCB signed an MOU and wrapped all the permits, with various unrelated things, into an EIR, and then the whole thing went through CEQA. With Wheeler Ridge Maricopa Water Storage District, under the inspiring leadership of Dennis Mullins and Dennis Atkinson, as the lead agency. But it seems peculiar that a landowner can do certain things first and then get permits and certification for them after the fact. In fact, it sort of seems to invalidate the process.

• A related problem: what happens if a project goes through CEQA but prior to starting the process the landowner decides to implement most of what (s)he is asking for already ? Since CEQA is concerned with the environmental impacts of the project compared to the status quo this will skew the odds even more in favor of the developer. Examples in our area are easy to find. Castac Lake is one of them, actually. It has been completely redesigned to provide infrastructure for Tejon Mountain Village. It seems to me that we now cannot say any more, under CEQA, that TRC has to destroy the lake to build TMV, because they have already destroyed it before there was even an NOP. Same example: it is my understanding that in the last three or four years there has been quite a bit of grading and road construction east of Castac Lake, well up into Bear Trap Canyon. If the condors want to get to the ridges of Bear Trap, they can now take a golf cart. Again, it seems obvious that this is one of the ways to get around CEQA — just put in some of the necessary infrastructure before you apply for the permits and make some of your “improvements” before anyone can require you to mitigate.

• Finally, why are we making so much fuss if the outcome is pretty much decided ? Overriding concerns, anyone ? There were rumors in connection with Frazier Park Estates, that (elected) county officials had indicated that project was going to happen, no matter what. Just a rumor, but a powerful one. Now we see in the Kern County Capital Investment Plan two fire stations and a library proposed in Tejon Mountain Village. And that is a project which is not even in the DEIR stage. It would be good, I think, if the Planning Department encouraged the various county agencies and officials, elected or appointed or hired, not to take the CEQA process for granted, or give even the slightest impression that the outcome is predetermined. We all know that TRC is lobbying, spending money, selectively informing the public, making glossy brochures, and sitting on the cover of the phonebook. It is using its economic and political clout in every possible way. That is fine, it’s their job, because it maximizes value for their shareholders and income for their executives. All the more important for the County and State to maintain the image of impartiality, and not even to mention things like overriding concerns at this stage.

There has been some debate about the form of government, and optimal delivery of services, in Pine Mountain Club, Frazier Park, and surrounding communities. In particular, the proposal in PMC to convert CSA sewer funds to matching funds for a new fire station, and the proposal to levy a special tax for a permanent ambulance, are planned to go on the next ballot. But many do not like the strategy of moving PMC-related decisions from the PMCPOA boardroom to the ballot box. In fact, this is probably the majority point of view of the PMC property owners. They observe, correctly, that asking the registered voters for their opinion undermines the CCR’s, and if taken to the extreme would make the CCR’s irrelevant.

I, respectfully but routinely, disagree with the majority. It seems to me that any move that shifts power from the property owners to the registered voters is a good move. It emphasizes that PMC is a community, instead of it being a private community. It puts community over property and democracy over exclusiveness. It gives long-time renters a voice and it appropriately disenfranchises absentee landlords like me. It is a step in the direction of transforming Pine Mountain Club into Pine Mountain Village. It better integrates the community into the structure of the county and the state, and it makes it more likely that eventually decent services will be provided by accountable county agencies, using our tax dollars as they are intended. What is needed, ultimately, is either a Community Services District, or even a full-fledged incorporation (of the whole Mountain Communities).

The HOA model may be fine for special recreation communities, or for small settlements such as Pinion Pines and Los Padres Estates, but it seems that it is rapidly falling apart for fast growing mixed communities such as PMC. It may have been the obvious way to go in 1972, but even the 1972 Mil Potrero / Pine Mountain Club Specific Plan already envisioned up to 8,200 permanent residents in the area, without thinking through the consequences, of course.

There is an obvious alternative to delegating services to county agencies and making private club membership optional. The alternative is to get rid of the volunteers, hire more qualified professional staff, provide better services, upgrade the clubhouse, and raise the HOA fees to about $ 10K. For some people that will not be a problem. But, as usual, many people prefer to have a luxury private community on the cheap. The “less taxes, more services” model has been tried, however, and it does not and can not work on either county, state, or federal level. It’s the having and eating of the cake all over again.

The answer to the Rodney King question “why can’t we all just get along” is simple. The various factions in PMC want fundamentally different things, and since their basic economic interest and security are involved they are prepared to go to war. Perpetual war. The last five PMCPOA boards may have been dysfunctional, but it will get worse before it gets better. With adjudication looming.

As for the rhetoric, of course the supervisors will not put just about anything on the ballot simply because the PMCPOA asks them to, so the CCRs will still be needed for a while to regulate the use of clotheslines and the like.

It has been suggested (by Lloyd Wiens), in connecting with the various small-scale environmental projects of the Center for Environmental Statistics, that yet another worthwhile project for UCLA to undertake would be to create a history of California, or of part of California, but a history that actively incorporates the Native American perspective. Although this would be a great thing to do, there are many logistic and practical problems. The scope would have to be enormous. It would require an institute, with a substantial number of faculty and staff. It would require both archeologists and historians. It would require a lot of coordination with UCB, UCSB, UCR and with many of the CSU’s, that already have active centers for California history/archeology/culture. In fact it is simply too big to even consider — if at all it should be done as an initiative at the state level. But if we localize it, and it becomes at least thinkable.

A couple of years ago I started collecting local materials and making a plan to organize them (at least in my mind). I concentrated on a 50 mile radius around the Grapevine, specifically on Tejon, South San Joaquin, San Emigdio, West Antelope Valley, Cuddy Valley, and Mount Pinos. I now have most of the classical books in California history and on Kern County history, starting with the Spanish explorers. I have copies of many dissertations dealing with the Chumash, Kitanemuk, Tataviam and with the federal indian policy. I have many of the original historical sources published in senate and house documents. I know roughly what is in the Bancroft, Huntington and Sherman Libraries. I have maybe fifty books and monographs on California Indians, with some concentrating on our area. I have communicated through email with most of the archeologists that have been active in the area (from UCLA, CSUBAK, and AV College). I tried, at the time, to contact Kathy Morgan, Dee Dominguez, Laughing Horse Robinson, and the Bakersfield Chumash Council, with not too much success. But that is mostly because the job was too big and I could not follow up. Although my work day is flexible, it cannot be stretched beyond 24 hrs (at least not every day).

I became convinced, quickly, that writing a fair and balanced local history, starting in pre-contact times, would require at least 5 years of full time research and writing, and would include a lot of traveling and consulting (and finding) primary sources. Although I registered as a reader at the various libraries, I never found time to visit any one of them. Going through archives is extremely time consuming and should be left to professional historians writing books or dissertations (if only because they are the only people with a strong enough economic motive to do this work, and do it well).

Much work has already been done on Beale, on the Chumash, on the Yokuts, on Federal Indian policy, on local languages, on oral history, on the Tejon reservation, but pulling it together alreadt is a major project. A lot of the material is “journalistic” or “amateur historian”, which means that it does not go to the primary sources and relies on hearsay. Much of it is “political”, which means the author wanted to make a case (for example, that Edward Beale was a saint, that Harry Chandler was the devil, or that the author of the document is the only well-informed person on the planet). Much of it is “human interest” (sturdy pioneers, grizzley bears eating French trappers, heroic explorers, simple folks baking bread, collapsing roofs). The period between after 1860, when Tejon Ranch reigned supreme, is very badly documented and my understanding is that much of the material is inaccessible, because it is in the Tejon archives. Chandler’s papers were destroyed, as far as I know.

So, to make a long story short, there is a lot of material available. I have a great deal of it myself, I know where to find much more, I have a lot of contacts, but it’s not possible for me to go much further with it, and it is a daunting job, too big even for any single full-time person.

If you want to know more about the history of California Indians, and in particular the Tejon Indians, then a nice place to start is

http://www.cuddyvalley.org/background/Cultural/Indians/
Look around. And maybe start at the link “Indians in California History”. This features two pieces of downright nasty legislation. The “Act for the Government and Protection of Indians” does exactly the opposite of what its title suggests — it disenfranchises the Indians, regulates that nobody can be convicted of a crime on the testimony of an Indian, and makes it possible to sell Indians into bondage. The tendency to give laws lofty names that hide their evil intent clearly did not start with the Bush Administration. And then the “Act to Ascertain and Settle the Private Land Claims in the State of California” disenfranchises everybody who could not defend their title to the land for the 1851 commission (which of course meant that all Indians and many of the Mexican land grant owners lost their rights). This effectively did away with all the provisions to protect title to land in the Treaty of Guadelupe Hidalgo of 1848, that ended the Mexican War.

Now go to the “18 treaties” link. This has the text, at least the essential part, of the treaty that George W. Barbour made on behalf of the US government with the Tejon and Castac Indians in 1851. It gives the Indians 1.2 million acres of land, including Kern and Buena Vista Lakes, Castaic, the Grapevine and Tejon Passes, Cuyama, Tehachapi, the current city of Bakersfield and everything in between. As the last page of the pdf I have included a map from John Anderson’s “The Piercing of the Yokut Shield” that shows how vast these promised treaty lands actually were.

The 18 California Treaties were forwarded to the Senate in Washington for ratification. Edward Beale, then just appointed Superintendent for Indian Affairs in California, strongly argued for their acceptance, and so did the Commissioner for Indian Affairs. But the delegation of the then brand new State of California lobbied like crazy to have them defeated, with the argument that one could not give valuable lands to savages, and they were thrown out (behind closed doors) by the Senate committee. They argued that ratifying the treaties would lead to a devastating war with the Indians — then, as now, an idiotic claim only used to induce fear. After that the Treaties became classified documents and disappeared from public view for 50 years.

Of course this was followed by the initially promising, but ultimately sad, story of the Sebastian (Tejon) Reservation, of initialy 50,000, then 25,000, and then 10,000 acres. And of initially 1500, then 700, then 300, and ultimately just 100 reservation Indians. And by the ascent of Edward Beale, who appropriated everything he managed, constructed, administered, and surveyed while a federal employee. You can read about some of that at the “Tejon Indians and Reservation” link, going through the Annual Reports of the Commissioner of Indian Affairs between 1853 and 1862.

At the same place you will also find another obnoxious legal document. The history of this not-so-supreme court decision is described in the “Little Story” document. In 1916 the Chandler/Sherman syndicate, that had just bought Tejon from Truxtun Beale, filed suite to evict the remaining Tejon Indians from their settlements at Tejon Canyon (only 5360 acres were left at the time). The syndicate until then had to pay rent to the Indians to use the former reservation grounds. Of course they didn’t. And, following Beale, they employed many of the Indians in various functions. But at some point they decided that they had acquired the right to claim ownership of the land by “Peaceful Possession”. The US Attorney filed a lawsuit against the Title Insurance and Trust Company on behalf of several concerned citizens groups, and as the legal ward of the Indians. The US Supreme court ruled in 1924 in favor of Chandler c.s., using as arguments (as far as I can make out) that (a) it would be too much of a hassle to give the land to the Indians now, and (b) if they really wanted it, they would have filed a claim to it in 1851, when they had the chance. Clearly Justice was (again) on vacation at the time.