Rights and Wrongs

If there’s one thing that opponents of the Flathead water compact seem resolutely convinced of it’s that the compact takes private water rights away from individuals without compensation. And if there’s one thing that gets those same opponents really riled up, it’s telling them that this "takings" business is, in a word, bogus.

After all, for more than a few enemies of the compact, including some of my legislative colleagues, taking water rights is the tip of the iceberg.  Just below the surface they have discovered there’s a grand conspiracy afoot, in which the Tribes or the Federal government or the United Nations or Agenda 21 or the New World Order (occasionally aided and abetted by Space Aliens) plan to take over all the water and all the land in Western Montana, and send the people of the Flathead Valley off to live in cities somewhere. So these takings are a big deal, and to deny they exist is to be complicit in the great take-over scheme.

I became aware of all this recently when I wrote, in a letter to the Missoulian, that the compact doesn’t take anyone’s water rights, and if opponents wanted to make a claim to the contrary, they should cite the specific provisions of the compact that supposedly allow that to happen.* So far, there have been three letters to the Missoulian trying to do just that, all of which miss the mark by a wide margin.

For example, in his contribution to this debate, Bobby Carrol, who lives in St. Regis, cited the language in the compact in which the state and the Tribes waive their sovereign immunity from suit. These waivers are intended to protect the right of individuals to appeal water management decisions in court, but Carrol manages to construe it as “the state of Montana, counties, cities and citizens…giving up their rights not to be sued by ‘anyone,’ including the United Nations.”  Even if that were true, which it isn’t, how Carrol can equate waiving immunity with taking water rights is incomprehensible.

Perennial compact gadfly Christopher Chavasse didn’t even try to find a provision in the compact that might support his position. Instead he provided a lengthy quote from conservative columnist Thomas Sowell, to the effect that liberals generally make their arguments without reference to the facts. To this canard from Sowell Chavasse adds the oddly phrased comment, “Instantly me thinks of the Reserved Water Rights Compact of the Confederated Salish and Kootenai Tribes. What say you to that, Dick Barrett? Flack away.” Forget about the silly implied syllogism (Sowell says liberals ignore the facts, Barrett is a liberal, therefore Barrett ignores the facts): If Chavasse can’t produce any evidence – any evidence at all – that the compact takes water rights, then can't we safely conclude it doesn’t?

Finally, Boyd Frame quotes language from the Water Use Agreement in which the Flathead Joint Board of Control and the United States waive their claims on the water right for the Flathead Indian Irrigation Project.

What gave rise to the provision Frame cites was the fact that the Board, the US, and the Tribes had all asserted colorable claims to the same project water right.  Because these conflicting claims had not been adjudicated, none of the parties possessed that right, and ultimately their conflicting claims could only be resolved in the Water Court, either through litigation or a negotiated settlement. In this case, the parties reached a settlement in which the Board gave up its claim in exchange for a substantial financial commitment by the state to make more water available for irrigation, and for the Tribes’ commitment to significant limitations on the exercise of their senior in-stream flow rights. The Board had a claim on the project water right, but didn’t have the right itself, and it voluntarily relinquished that claim; it was not taken. The fact that some of the irrigators the Board represents didn’t like the deal does not change that fact.  Ultimately disputes among irrigators led to the dissolution of the Board, and now it remains to be seen how the conflicting claims on the project water will be resolved, and how irrigators will be protected.

So, so much for what the compact doesn't do. What it does do is clarify and quantify the various water rights of the Tribes. In most cases, the Tribes’ rights are senior to those of other water users and that fact – that somebody has rights senior to their own – has a lot of people worried, and thinking their rights have been taken. It’s not true: the rights are still in place, but their holders have always been subject to the condition that other users with rights senior to theirs can “make call” on them; if there isn’t enough water to go around seniors get all the water to which they are entitled before the juniors get a drop. This is a simple fact of life and matter of law for junior water users throughout Montana, on the reservations and off, and the compact has nothing to do with it.

On the contrary: in the compact the Tribes have agreed not to make call on almost all of their existing junior neighbors; in the remaining cases, they have agreed to significant limitations on their ability to make call. In fact, protecting existing, state based water uses has always been the primary objective of the Commission. Opponents of the compact should try to get their heads around that fact.

* My letter was a response to an earlier one from Michael Gale, in which he accused the Reserved Water Rights Compact Commission, on which I sit, not only of ripping off people’s property, but also of graft, deceit and manipulation (Gale is nothing if not thorough in his calumnies). You can read Gale’s letter here, and my response here. 

Parsimonious Montana

Montana Senate Republicans are going after each other hammer and tongs over one of their perennial favorite shibboleths: the unbridled growth of government. Usually it’s us Democrats who get blamed, fairly or otherwise, for this state of affairs, but conservative Republicans, led by Art Wittich and Jeff Essmann, have apparently decided that we are beyond hope, and that the real culprits are now the moderate Republicans, who during the 2013 session betrayed GOP principles, made common cause with the governor and Democrats and spent an unconscionable amount of money.

This dispute was already smoldering when we packed up and left Helena last April, and in his parting remarks to the Senate, Wittich, the majority leader, made it clear exactly how disappointed he was with the session and how betrayed he felt by the moderates in his caucus. And things just got worse in June, when the Legislative Fiscal Division reported that General Fund spending was slated to increase by 14.2% from the last to the current biennium. The conservatives read that number – which is admittedly pretty big – as a sign of government run amok.

But last month, as Chuck Johnson reports, the moderates fired back, when Bruce Tutvedt asked the LFD to prepare a report showing the increase in total appropriations, not just General Fund. It turns out that total appropriations rose by just 4.3% from last biennium to this one; on an annual basis, that’s a little more than 2.1% per year.

So what number should we be looking at? 14.2% or 4.3%?

What’s going on here is that while we spend an awful lot of time during the session figuring out how to spend General Fund revenue, that revenue actually accounts for less than 40% of all the money we appropriate, which also includes a boatload of Federal dollars and State Special revenue such as gas taxes and hunting license fees. To some extent spending can be switched from one of these sources to another. For example, in 2009, when a big chunk of Federal stimulus money was available, we used it to pay for stuff that normally would have been paid for out of the General Fund, which had been hammered by the recession. And this past year, we went in the opposite direction, and appropriated almost $130 million out of the General Fund for things previously paid for with State Special Revenue. This kind if budgetary whack-a-mole means that you shouldn’t pay a lot of attention to what is happening in particular funds. Spending pops up in one place but goes down in another. If you really want to figure out what’s going on, you should look at the total for both places at once.

Another reason to look at total and not just General Fund appropriations is that if you want to understand the impact of government on citizens, the economy and society at large, then the way we spend Federal and State Special revenue is important. These funds pay for roads and highways, education and social services that by anybody’s reckoning are basic functions of government. To ignore them when considering how fast government is growing just doesn’t make sense. So I’m with Tutvedt on this one: the expansion of total spending is the right metric for the growth of government, and the right number, last biennium to this, is 4.3%. But is that a lot of growth, or a little?

It turns out that it’s no real growth at all.

According to the LFD’s report, the legislature appropriated a total of $4.95 billion in fiscal year 2009; for fiscal year 2015, the figure is $5.45 billion. That calculates out to a growth rate of about 1.6% per year, which is almost exactly equal to the rate of inflation between 2009 and 2013. Admittedly, we don’t know what inflation is going to do this year or next, but if anything, it’s likely to accelerate a bit. So that means that in 2015 we will be spending almost exactly the same amount of real, inflation-corrected dollars as we spent six years before, in 2009.

And then think about this: over this same period, while real state government spending is running in place, both real personal income and population will be growing. So on a per capita basis, or in relation to family incomes, government spending is going down! 

Highway Mayhem

Since I was first elected in 2008, I’ve experienced more than my share of exercises in legislative futility. One that still leaves me slapping my head is a bill I carried in 2009 and again in 2011, that would have required that infants be carried in the back seats of cars, in rear facing restraints.

This was not some crazy idea I dreamed up on my own.  It was a recommendation of the National Transportation Safety Board, it had already been adopted by several states, and when the bill was heard in the House Transportation Committee, ER docs, nurses, the Montana Highway Patrol, insurance industry representatives, automobile retailers, and Mothers Against Drunk Driving all showed up in support.  Absolutely nobody opposed it.

But when the bill came up for consideration on the House floor, the chairman of the Transportation Committee rose in opposition, allowing as how he was sick and tired of being told by government how to take care of his family. Stated otherwise, if parents wanted to put their kids’ lives at risk, it was nobody’s business but their own. A majority of the House found this line of reasoning persuasive, and the bill died.*

It turns out that Montanans are apparently pretty attached to the notion that they should be able to drive their vehicles however they damn well please – without seatbelts or booster seats in cars, without helmets on motorcycles, while texting and yakking on the phone, and even, alas, when drunk. Advocates for Highway and Auto Safety (a coalition of insurance industry and consumer safety groups) recently reported that out of 17 optimal measures for promoting highway safety – primary seat belt laws, for example, or required ignition interlocks for all DUI offenders – Montana has adopted just 5. This places us, along with 10 other states, in the Red category in the Advocates traffic light inspired scheme, where Red is worst, Yellow better and Green is best.

Of course it’s fair to ask if these laws Advocates are pushing do any good. Are people in states with comprehensive legislation really any safer on the road, or is government just messing with them to no good end? Do Montanans, on the other hand, pay some price to enjoy the highway anarchy we appear to insist on?

Well, yes, it looks like we do.

The Advocates report lists, for every state, the number of auto crash fatalities in 2012, total fatalities since 1989, and the annual economic cost due to vehicle crashes. By itself, that information is not very helpful, because the number of accidents obviously depends on the population of the state, how much people drive, weather conditions, the age of the drivers, and so forth. Montana, for example, recorded 205 fatalities in 2012, while California had 2,857. Who knows which state’s drivers face higher risks?

One way of dealing with the problem is to calculate for each state fatalities per vehicle mile traveled. It’s not perfect – it doesn’t take into account weather conditions, for example, or the average age of drivers – but I do think it at least points in the right direction when it comes to assessing how safe a state’s highways are. So I downloaded information on vehicle miles traveled from the Federal Highway Administration, and made the calculation.

It turns out that by this measure, there are only three states – North Dakota, West Virginia and South Carolina – where driving is more dangerous than it is in Montana. Montana’s fatality rate is 54.4% above the national average; for every two deaths in the country as a whole, Montana has three.

Having more safely laws on the books correlates with a lower fatality rate. Look at the scatter diagram above. Each point represents a state. On the horizontal axis you can see the number of the Advocates’ optimal safety laws a state has enacted and on the vertical axis, the fatality rate I calculated. The downward drift of the points as you move to the right tells you that more laws mean fewer deaths. It’s not a perfect fit, of course, but nevertheless: more laws, fewer deaths. Another way to see it is this: the fatality rate for all the states in the Advocates Green category is 15.4% below the national average, while for the Red States it is 9.3% above (the Yellow states are 3.2% above). You might want to keep this in mind next time the Legislature debates, and rejects, a common sense highway safety measure: your life really is at stake.

* The vote was on a motion to “blast” the bill (HB 220) out of committee, where it had been tabled, for consideration by the full House. The motion required 60 yes votes to pass, but it only got 48, from 32 Democrats and 16 Republicans. The remaining 52 Republicans all voted no. If you want, you can see how your representative voted by clicking here.