This is a letter from 20 year Snake River landowner, Dr. Cleve Trimble, to Cherry Co. Commissioners in which he states his reasons for opposition to title transfer to AID and its impact on Cherry County.
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Cherry County
Commissioners Although my opposition to the transfer of title of Merritt from the Bureau of Reclamation (BOR) to the Ainsworth Irrigation District (AID) is well understood, you have asked that I set forth those terms and conditions which, if invoked, would make transfer of title potentially acceptable; in other words, what provisos are likely to assuage opponents. Before these points are outlined, however, the fundamental problem needs to be stated. Although the AID already has an unbelievably good deal under present circumstances, they want more--and have repeatedly claimed two reasons why they must take title: first, to get out from under the BOR’s regulations and, secondly, to establish “local control”. As a downstream landowner directly affected by the AID’s management practices, I find both of these arguments errant. Although we all believe that less government is desirable, there are some governmental functions which serve good purpose not otherwise available. In this case, the BOR’s oversight protects the resource and those who would be affected were it mismanaged; I sleep better knowing that the BOR, not the AID, is attentive to those regulations which keep the structure safely in place. And the point about “local control” is word salad. Nobody is more local than you and I, and our opportunity for meaningful input will never be better than with the current structure. The BOR is impartial to Brown and Cherry Counties, but the AID Board will always act first in Brown County’s interests, which are clearly not consonant with ours. On each past occasion that I have endeavored to express a concern, the AID response was rude, arrogant, and frankly unneighborly: and this has been when they wanted something! Moreover, Merritt was constructed with public monies—mine and yours included—and has evolved to serve public purposes beyond irrigation only; its importance to Cherry County as a recreational resource is significant. For example, beyond cattle Cherry County’s economic mainstay and diversity is recreation-based tourism, with the Niobrara and Merritt being the centerpieces. To relinquish influence on and oversight of these treasures to irrigators—especially those known to intentionally close off access to land as a means of demonstrating a political point--is no less inappropriate than it would be to have recreationalists manage an irrigation project. Of the 10,000 acres proposed for transfer, over 7,000 acres are wildlife areas only! The way Merritt is now governed works--it isn’t broken as is, so we are meddling with something in which Cherry County and all Nebraska sportspersons have serious downside risk. Now to those conditional features necessary to make it a potentially doable deal. The AID has willingly participated (although they implausibly deny such) in several efforts to adapt Merritt into a hydroelectric facility. An outfit from Utah and/or Idaho has done the bidding but recently withdrew its latest effort, presumably in order to take some of the heat off of the title transfer proceedings. But it is this very same group that the AID has employed to do their Environmental Assessment (EA)! The conflict of interest here is obvious; for example, doesn’t ‘he who pays call the tune’?; how long after title transfer will the hydroelectric issue resurface?; and would the hydro developer not be the same guys who did the EA? A hydroelectric operation would have such devastating downstream consequences as to make a dairy in the middle of Merritt a preferable option, and very few of us out here have the time or money to wait for days in Washington D.C. to testify before the FERC. Therefore, the AID should commit to unconditionally forego any future development of hydroelectric capabilities. Since its inception, there has been a prohibition
against development of any sort around Merritt in order to preserve its
esthetics and to limit environmental adversities. However, defiantly
thumbing his nose at all of us, the AID’s Executive Director is the
only one to have erected a structure—intended to compete with the sole
commercial development sanctioned and supervised by Nebraska Game and
Parks Commission (NGPC). Although this tacky cabin was built on private
land, its unauthorized access was across the very governmental property
we are talking about transferring. When questioned about this, the AID
Executive Director (in the presence of his Board) in turn asked “What
do you have against free enterprise?” The degree to which free
enterprise is carried out with what is now public property is reasonably
of concern if trailers sprout around Merritt’s perimeter, with the AID
either selling them or the easements to them. Therefore, the AID must
commit to never allow any
commercial or residential development upon nor make access available
across those lands subject to title transfer. Were the title to Merritt handed over, the AID would, under State law, be exempt from paying property taxes. It therefore raises reasonable concern as to why there are discussions with our Commissioners about how much payment AID might give to Cherry County in lieu of taxes--when AID wouldn’t be subject to taxation in the first place! To offer money for a consideration is referred to as a bribe, and to ask for money in return for a consideration is called extortion: we should not be involved in even the appearance of either. But perhaps I misunderstand, so let us review what has happened so far. First was an AID offer of less than a dollar/acre (of the land involved in title transfer), which was subsequently upped to just over a dollar/acre. Was this a legitimate consideration to begin with, it makes my property tax of over $3/acre look like inequity. However, if such a transaction is legal, the AID’s PILT should be no less than the property tax of any landowner in the area. Moreover, there is unanswered question as to whether the AID even has legal authority to now enter into such an agreement in the first place. And a variant of the foregoing is the reported offer by AID to pay Cherry County $.50/ acre-foot of water they take off over and above their allotment of 63,712 acre-feet. I’m told an acre-foot of water is worth as much as $700 in some places and no less than $150 in any other current market (and going up dramatically in the face of unrelenting drought). So this gift would do nothing to deter the AID from taking and disposing of all the water they could, wholly at the ecologic expense of Merritt Reservoir and its consequential impact on tourism and recreation in Cherry County: there are not enough acre-feet at 50 cents, or PILT, to ever offset the resultant damage. For the AID to use more than the allocated acre-feet requires an Environmental Impact Statement (EIS). And if the EIS would say it is permissible, then our Commissioners should negotiate for a reasonable percentage of the take (since the AID has seemingly wanted to negotiate). But keep in mind that they are relieving us of absolutely pure water that is generated and stored in Cherry County to then go on to porous fields laden with pesticides, herbicides, and nitrates, only to return to an aquifer we share. In not too many years that which is now uncontaminated below us may reflect what AID washes over the surface to affect the sale of subsidized rowcrops. Merritt Reservoir is a “100 year” structure, and is in the BOR’s category of lesser safety. The natural fate of all man-made dams is to silt in, a process already well underway at Merritt over the 40 years of its existence. So when siltation finally fills it with sand instead of water (perhaps in just another 60 years?), will it breach, brim over, or be rehabilitated? Breaching or brimming obviously will affect all life downstream very adversely. Rehabilitation will be at a very high cost to whomever owns it and, were that owner to be the AID, they, as businessmen, would decide if the costs of rejuvenation would be significantly repaid by their product development; in other words, can they be guaranteed to profitably recover their expenses? So, depending on unforeseeable markets at that unforeseeable time, they could just decide to walk away and let Nature take its course: it then becomes our expense. So the AID must somehow guarantee Cherry County that they will maintain the structure as though it was to go on forever, doing whatever is necessary to periodically remove the siltation and maintain the pool’s capacity and the dam’s upkeep; and they need to post a bond to cover Cherry County’s expenses to do so at that future time if they don’t. Another concern for structural safety relates to security issues. For example, there would be few easier targets for terroristic assault than an Oklahoma City-style Ryder truck on the dam on some dark and windy night. Security is an expense the AID will not want to bear, and Cherry County would pay inordinately for a security failure. The Federal government could mandate further requirements without providing the funding, e.g., like requiring that Arizona control the illegal aliens at its borders. Cherry County should require that security for Merritt Reservoir is the responsibility of the AID, and devise a means of enforcing that requirement. The fishery at Merritt Reservoir itself is in a state of decline, probably due to excessive irrigation draw-downs that leaves eggs high and dry, and encroaches upon overall habitat to force fish into concentrations where their predators have a smorgasbord. During the irrigation season the stale water warms, the sands blow, and the resource suffers inordinately. This winter’s ice fishing tournament, for example, had 82 two-man teams of which the winner caught only 11 pounds, with second place taking 6 pounds-- weights which pale in comparison to those of the past. Similarly, the walleye tournament just this past week-end was a terrible disappointment: 52 two-man teams averaged 1 fish per 9.73 man-hours of fishing. Few of these talented anglers are likely to undertake the travel and expense to again bring their disposable income to Cherry County for that kind of gonad-numbing inaction. So Main Street in Valentine increasingly pays a not-so-hidden tax to underwrite Ainsworth’s Main Street, and although the net downstream impact of these draw-downs is unknowable, it is real. Therefore, the AID should commit to utilize only those 63,712 acre-feet for which the project was designed; beyond this allocation again must require an EIS. The blue ribbon trout fishery in the Snake River below Merritt is occasionally victim to irrigation practices as well. It is enough that the dam itself blocks the rhythms of natural flow, but alterations made out of convenience are sometimes unnecessary and thoughtless. Non-graduated surges or cut-offs of flow—e.g., to accommodate a river crossing by thousands of cattle which could get to and from federal pasture by other means, but which is followed by a killing downstream wall of nitrogen and sediment--and ill-timed summer releases of warm deoxygenated water have all episodically taken a toll. Studies are in progress--at least one at private expense--to apply science to try to integrate disparate functions to the coordinated benefit of all users. To protect the downstream segments, an EIS is required to define release impact during the irrigation season, and to define the advisability or inadvisability of certain release practices. An advisory panel of affected landowners and fish biologists (including a representative of the NGPC) needs to be established to whom the AID will be responsive on a continuing basis. There must be assurance that the AID will be responsible for monetary damages to mitigate any biotic damages attributable to departures from release patterns recommended by the EIS and/or the panel. It is my hope that the AID will not choose to characterize the above as the ‘environmental extremism’ they have purportedly sought to avoid. But concerns are founded. In my first (and last) contact with the AID’s Executive Director relating to flows in the river, I inquired as to whether the releases could be graduated incrementally; his response was to remind me it was an irrigation project, it would be managed only as such, and he had no concern for the fishery. At the recent session the Cherry County Commissioners held to discuss the issues, I asked the AID Board Chairman, in essence: ‘…if the AID refuses to reapply to continue into the future as they have in the past (i.e., extend their lease), and if they are not given the title, what then is their intent?’ His angry response was …‘you won’t have a place to fish!’ Jerry, this is not about me, nor is it about fishing. This is about handing over property paid for by taxpayers to a private for-profit special interest group when to do so calls for an appropriate level of citizen consensus, a requirement not evident within the constituency of Cherry County because too much of our future could be profoundly affected by folks we have not been given reason to trust. The Concerned Citizens of Cherry County, the Cherry County Board of Tourism, and the Valentine City Council are all on record as opposing Title Transfer: this clearly speaks to the consensus issue. Were the matter on the November ballot, it would be clear that the people of Cherry County are against this being allowed to happen. Many of us went to the scoping sessions and were disappointed at the lack of responsiveness shown by the AID. Even more than that, however, has been the occasional display of outright hubris from the AID leadership. The trust issue again was called into perspective just this last week as the AID now sets in motion the process of extending their lease, something they have repeatedly told us was absolutely not an option they would ever consider, period! But perhaps posturing isn’t held accountable as truth-telling for purposes of these discussions. So as the AID now tells us they are sensitive to our interests, we need to be ever mindful that if they take title, it will be theirs to do with as they see fit… which means they could sell water, home sites, hydroelectric, or even Merritt itself to whomever. Another red flag is the ‘aside’ by AID Board members who in a seemingly private and confidential manner acknowledge their Executive Director to be a problem, but wink that he won’t be in the picture much longer. To this it can only be said that the AID Board is responsible for its agents, and there is no guarantee they might not next get someone even worse. Pinning the trust issue on him and then expecting to move on should assuage no one: it is still a trust issue. I have spoken only to my particular concerns, which are but few of a greater number that were expressed in the environmental scoping sessions and in the smaller discussions that have fomented over the past year of this controversy. We all deeply regret the divisiveness this matter has engendered between our communities, and we pray the cooperating agencies approach can put it to rest once and for all. And that can only begin with an EIS (the EA is still shrouded in secrecy and unavailable to public inspection) if there are to be further meaningful considerations. Until then, I remain one of many who remains inalterably opposed to the title to Merritt being handed to the AID. Thanks for your request for an expression of my concerns, and thanks for indulging this lengthy answer. Please feel free to call for any clarifications that might be required. Sincerely, Cleve Trimble cc: Rex
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