Voters to decide on water rights initiative

Skye Kinkade
Ami Marcus, Mount Shasta resident and one of the lead proponents of the Mt. Shasta Water Rights and Self Governance Ordinance, applauds the council’s decision on May 24, 2010 to put the initiative on the November, 2010 ballot.

Though proponents of the Mt. Shasta Water Rights and Self Governance Ordinance say the initiative will only prohibit two specific things: corporate cloud seeding and corporate water extraction, others assert that it’s all open to interpretation.

On Monday evening, after nearly three hours of public comment, Mount Shasta city councilors voted unanimously to allow voters to make their own interpretation of the ordinance when it’s placed on the ballot in November.

The decision to put the controversial initiative up to vote was one of only two choices available to the council. The other was to adopt the ordinance immediately. In both instances, neither the council nor the proponents have the ability to modify the ordinance in any way, pursuant to the initiative process.

Backed by the Community Environmental Legal Defense Fund, the Global Exchange organization and many local residents, the ordinance would be the first of its kind to attempt to control cloud seeding and water extraction.

However, several serious concerns regarding the ordinance have been raised by Mount Shasta city attorney John Kenny and city councilor Tim Stearns, many of which were addressed during Monday’s public comment.

Kenny asserts the ordinance is “overly ambitious in scope [and] attempts to regulate matters beyond the boundaries of the City and beyond the legislative authority of the City to enact,” in a special report compiled for council.

Single Subject Rule

Among the major flaws of the ordinance, as Kenny interprets it, is a violation of the Single Subject Rule.

The state constitution “provides that an initiative measure may not be submitted to the electorate if it covers more than one subject,” Kenny said. “If adopted such initiative would have no affect. The purpose of the single subject rule is to minimize voter confusion and ‘logrolling,’ which is a method of combining various subjects to gain voter approval.”

Ben Price of the ELDF addressed this concern by saying the ordinance is about a single issue: the right to water.

“The right to water is the centerpiece [of the ordinance]. All the other pieces revolve around that,” Price said. These other pieces include the right to local self government, the right to a healthy environment that doesn’t contain poisons and toxins, to not have our rights overturned by the state and to be free of corporate reign.

“This is a multi-layered ordinance, but it makes two prohibitions, and only two... cloud seeding and water withdrawal by corporations.”

Lead proponent Molly Brown thanked both Kenny and Stearns for bringing their concerns to the table, and admitted that the proponents  at one time had the same concerns.

“We want to make sure the ordinance doesn’t do what we don’t want it to do,” she said.

After careful consideration, Brown said she is “convinced” that the ordinance will function to protect Mount Shasta’s fundamental right to clean water, and nothing more.

Brown added that the ordinance contains language which asserts the city’s right to exercise local self government, which “is as American as apple pie,” and serves to make the ordinance stronger so it cannot easily be overturned.

Doctrine of Preemption

Kenny also said that in his interpretation, the ordinance violates the Doctrine of Preemption, which invalidates any ordinance which duplicates, contradicts or enters into an area fully occupied by general law.

“Neither the city council nor the city electorate has the right to adopt laws that are preempted by the state,” Kenny said. “The electorate cannot simply declare themselves the right to enact statutes that conflict with or are preempted by state or federal law. [This] initiative boldly asserts that corporations shall not have preemptions afforded to them by the Federal and State Constitution... In short, the ordinance declares itself superior to international agreements, treaties, and the Federal and State Constitution as well as state law.”

Proponent Angelina Cook, who resides in McCloud, asked everyone to remember that communities adopt laws that fly in the face of federal law all the time in order to rectify illegitimate laws which endanger the right to life.

“This is not new... it’s the way our government works,” Cook said.

Possible restrictions

Proponents claim Mount Shasta City is specifically exempted from the definition of a corporation. Therefore, the prohibition of water extraction wouldn’t apply to the city or any business within the city (such as a microbrewery.)

Stearns said in his interpretation, the ordinance would prohibit such businesses from selling their product outside city limits. It would also prohibit the city from supplying water to residences and businesses outside city limits, as they presently do in some cases.

This statement was met with much contradiction from the proponents in the audience, most notably from Price. Though Mayor Michael Murray wouldn’t allow a back and forth conversation between the two, it was acknowledged that the ordinance could be interpreted differently by different individuals.

Possible impact on the city

Proponents say the ordinance would only obligate the city to test the first 10 Mount Shasta residents for evidence of cloud seeding toxins, and then only if corporate cloud seeding takes place.

Kenny and Stearns say the ordinance is ambiguous, and assert that the city could be held liable for much more, especially because the ordinance states that if such substances are found within the body of a resident, they must initiate litigation to recover trespass, compensatory and punitive damages.

Proponents counter that if such a situation did take place, heavy metal testing can be done for as little as $69 per person. Any additional expenses incurred after that would be defrayed by pro bono work of the ELDF and Global Exchange.

Stearns said he would be more comfortable if the ordinance said the ELDF and Global Exchange were responsible for paying for litigation and going after corporations who violated the ordinance, and not the city, which is already in murky financial waters.

Support for the ordinance

Despite the many concerns, the majority of the audience was fully in support of the ordinance. Many local residents stood to lend their support alongside several from other communities, some as far away as Alaska and Southern California.

Also standing in support were two members of the Winneman Wintu tribe, who said they would like to protect the sanctity and purity of the water of their native lands.

Only a handful of people stood to say they didn’t support the ordinance. While Mount Shasta resident Doug Dorsey expressed his disgust with the entire document, others said they simply weren’t in support of it as written.

Whether supportive or not, the council, including Stearns, Murray, Sandra Spelliscy, Ned Boss and Russ Porterfield decided unanimously to put the ordinance up to vote in a special election rather than adopt it immediately.

Because the general election is within the next six months, city manager Kevin Plett said the initiative will be placed on the November 2, 2010 ballot.

“The rest of this discussion is for the campaign trail,” Plett added.

More information

To research the initiative further, there is information both online at located at city hall. To read the full text of the ordinance, visit the Mount Shasta City website at Also posted there is the text of the city attorney’s special report.

To see a report from the initiative’s proponents, visit the Shasta Commons website at Other supporting documents can be found at Mount Shasta City Hall.

Lead proponent of the Mt. Shasta Water Rights and Self Governance Ordinance, Molly Brown, said what the initiative is attempting to do is “as American as apple pie,” at the May 24, 2010 Mount Shasta Council meeting.