Anne MacKinnon: Water & Water Law is Ultimately About People

Water-law scholar Anne MacKinnon has paid Whats Your Whya little visit in-between a series of discussions about public waters. Living in Casper, She is a former editor-in-chief of the Casper Star-Tribuneand served from 2003 through 2010 on the Wyoming Water Development Commission. Anne also takes great pride in her abilities as a scholar, author, editor, and consultant.

Thank you, Anne!

Follow her public forums or check out her publications here.

Emy diGrappa (00:00):

Hello, my name is Emy diGrappa. Each week we bring you stories asking our guests the question, why? We learn about passion, purpose and the human experience, brought to you by Wyoming Humanities, with the generous support of the Wyoming Community Foundation. This is What's Your Why?

                 Today we are talking to Anne MacKinnon. Anne MacKinnon is a water law scholar. She lives in Casper, she is a former editor-in-chief of the Casper Star Tribune and served from 2003 through 2010 on the Wyoming Water Development Commission. She recently wrote a book titled Public Waters: Lessons from Wyoming for the American West.

                 Welcome, Anne.

Anne MacKinnon (01:04):

Thank you, nice to be here.

Emy diGrappa (01:06):

The first thing I want to learn about you, because you have a really interesting and diverse background when I was reading your bio, what was your journey to Wyoming?

Anne MacKinnon (01:18):

I grew up starting in my high school years in Kentucky and after college, I ended up working in the coal country in Kentucky. I was freelancing for a little newspaper and I was working for a little nonprofit that was doing research into coal lawsuits, coal cases before the Kentucky Supreme Court. And in the course of all that, I ended up meeting some retired miners whom I interviewed. I was quite interested in the history of coal. I had worked on that for part of the newspaper in Louisville and the history of United Mine Workers, which were a very important union who was dominant in the coal mines in the East. These retired miners said, "The industry is moving west," this is in about 1975. "The industry is moving west, it's going to kill the union. You got to go find out."

                 I had also been reading, there's a wonderful writer named Harry Caudle, who was a lawyer in Eastern Kentucky who wrote some wonderful histories about coal mining in Eastern Kentucky. I'd read those because they're quite famous in that part of the country. And I thought, "Yeah, I could be a lawyer, live some place, learn about the place and then write about its local history." I felt like it was really important for people to know the history of their own place. So I left Eastern Kentucky and went to law school, as it happened in Berkeley, California. After a year and a half there, I had an internship in DC and that was convenient because I had a boyfriend in DC.

                 I took him to visit my old college dorm. On the floor was a flyer for jobs after college and it said, "Newspaper hiring in Casper, Wyoming." I was really sick of both my internship and law school and I knew that was where coal was being developed, just like that retired miner had told me. So I thought, "Whoa!" I applied to them, they flew me out, this is in 1979, for an interview. Never any other time have I been flown somewhere for a job interview, but the Star Tribune, the summer of 1979, they had had one reporter. They hired nine because it was the coal boom and it was a boom in money everywhere, including for the newspaper. Because of course there was no such thing as the internet yet. So they hired nine people, I was one of them, to cover energy, because I wanted to learn more about the coal industry.

                 I came out to Wyoming for that in the summer of 1979. That's how I got to Wyoming. I fell in love with it in many ways. I did leave for a year because I had to go finish law school. I felt I should actually get that degree, but I really wanted to keep doing journalism, so I came back and I've been here ever since.

Emy diGrappa (04:38):

That is quite a journey. I love that it wasn't law that brought you to Wyoming.

Anne MacKinnon (04:45):

No.

Emy diGrappa (04:46):

It was your writing, your passion for history and journalism. I noticed when I was reading your CV that you sent to me, that you started out with a degree in history and literature. Then so why law school after you got a degree in history and lieterature?

Anne MacKinnon (05:07):

Well, as I said, I admired this lawyer who had clearly gotten to know his place, these coal counties in Eastern Kentucky really well by being a lawyer there because it immersed him in what was happening for people there. That's why I went to law school, was to try to follow that path. When I came to Wyoming, I was particularly interested to see whether a rural place like Wyoming could do a better job surviving and handling industrialization than Kentucky and West Virginia had. For them, that started in the 1890s and into the 1920s. For Wyoming, the really major industrialization started in the 1970s.

                 Just to tie up that story, yes, Wyoming did a much better job because we taxed the industry. Gillette has had Olympic sized swimming pools and wonderful schools and you do not find that in Hazard and Harlan, Kentucky. The taxes that were imposed on the coal industry and on oil and gas, which had only been imposed several years before I got to Wyoming, but it made a huge difference. The governor of Wyoming at the time, Ed Herschler, at the time that I arrived, talked about growth on our terms. I was so impressed that Wyoming was really sticking to that. It made a huge difference.

Emy diGrappa (06:32):

Okay, so taking that journey from the coal industry, to your passion for writing about and learning about, and being a historian about water, how do those two intersect?

Anne MacKinnon (06:44):

At a newspaper you end up inevitably writing about all kinds of things. I was an energy and environment writer at some point. There are a couple of things. There was some litigation starting up in the mid 1980s in which Wyoming and Nebraska were fighting over the Platte River. They spent, I can't tell you, but tens and tens and tens of millions of dollars on this litigation, which went on for not quite 20 years, but close. Part of that, it was the North Platte. Well, Casper's on the North Platte, I could see the North Platte. Where I grew up, which was on the Ohio River, this would have been a creek. I mean, I was like, "What? You're going to spend this kind of money fighting over this amount of water?"

                 Then also I was covering the legislature starting in about '85, I think. I got sent down there to Cheyenne in the winters for the legislative session. I covered the agriculture committee and they were a pretty boisterous bunch. When the state engineer walked in, everything was silent and it was, "What do you need? What do you want?" I was like, "A state engineer, what is that? What is this about?" I could see there was a lot of passion about water, so I went to see the state engineer. His name was George Christopolous, a wonderful guy, who had been working for the state engineer's office for a long time before he became the state engineer. I started asking him about water and what the issues were.

                 One of the other issues at the time was whether or not Wyoming was going to create what they called an in stream flow right. Which again, "What? What's that?" George, he did talk to me and explain some things to me, but he also handed me two beautiful calf bound books from 1890 and 1892, written by Elwood Mead, who was the first state engineer. I always liked history, I had done my research in college on manuscripts from the 16th century. So this was the right thing to give me and it was perfect to send a reporter off with these two books to read. Well, it got rid of her. Elwood Mead happened to be quite a beautiful writer, so they are very readable reports. I keep copies of them around. That got me increasingly interested.

                 But again, it was also the contrast between the place I grew up before Kentucky, it was in Chicago, right on the shores of Lake Michigan. The Midwest, tons of water, the problem was floods. Then this, which was completely different. Also, as it happened Elwood Mead, he came in his 20s and came to Wyoming after he'd been working in Colorado, his first job out of engineering school. He thought that how water was managed in Colorado was a wreck. He came to Wyoming and thought he had a blank slate to write water law. Well, he grew up also on the Ohio River, a little further upstream from where I grew up, but he had that same, I think, shock. He came from that very wet, humid, lots of water place to these places with a lot less water. He wrote about the importance that managing water, if you managed it properly for the public good, it would be the only way to create a stable society. I found that quite intriguing to think about it that way.

Emy diGrappa (10:45):

Who were your biggest influences in understanding water in a bigger picture, not just Wyoming, but in terms of how it affects climate change and how it's affecting our world in general?

Anne MacKinnon (10:59):

Well, I guess two main things. I mean, there was wonderful people in Wyoming who explained a lot to me. George, his successor, Jeff Fassett, the guy who was running the Bureau of Reclamation Wyoming office at the time, John Lawson. Also the University of Colorado Law School at the time was called the Natural Resources Law Center, put on wonderful conferences about Western water law every summer, so I started going to those. I did go back and finish law school, I said that. Then I came back to Wyoming and kept going to those kind of conferences when I could.

                 But also as I did some reading, I ran into some writing about irrigation internationally written by Elinor Ostrom who wrote quite a famous book called Governing the Commons. It was about very long standing irrigation systems in Indonesia and Nepal, all over the place. What she wrote about was how water, you can think of it as what economists call a common pool resource. Which means it's a kind of resource that it's very hard to keep people from accessing and using, but when they do, they diminish it. That is true of surface water and groundwater. It's also true of forests, it's true of grazing lands. If you think of it in reverse order, it's true of our atmosphere. That it's hard to keep people from effecting it with pollutants that create climate change, but it makes a huge difference when they do affect it.

                 What she was writing about is how people have for centuries been able to manage those kind of resources as a group of people who set up their own rules. Those rules are not about private property or about government ownership, it's about they owning and running it as a commons. That's a shorthand way to think about it, to refer to it. I admired her writing and one winter at a family gathering at Christmas, an old friend of our family was there who was an economist in DC, I think. I was telling him, "Gosh, I'm interested in this water stuff, but I want to understand a larger structure." He said, "Well, have you read Elinor Ostrom?" I said, "Well, yeah." He said, "Well, you should go study with her." I said, "Oh, yeah. Right, sure, yeah. I have a nine-year-old son and I live in Casper, Wyoming." He said, "Yeah, but she teaches in Indiana." I assumed that she was in Sweden or someplace. He said, "Well, she has this wonderful thing in Indiana."

                 In the long run, where she was at Indiana University is only about two and a half hours away from where I grew up in Louisville. By that time, my mother was widowed, living in Louisville. So I was able to go back for a semester and study with her. She became the first woman to win a Nobel Prize in economics. I believe that was in '09 or 2011. I studied with her in 2005. That, and then the people I met through her who were European scholars gave me the perspective that I could think about the structure of, okay, what kind of governance is this? What do we have in Wyoming? Is this a commons management? No, it's not really that. Is it purely private property? Which people often say, "This is my water, it's my private property." The courts often say that too.

                 But if you look at what kind of rights people have over it, it's not private property in the sense that you would think of that you own land. It was really interesting to work on. It was great to have that intellectual framework, but what interested me the most is the people in Wyoming talking about it, thinking about it, making decisions about it, learning about how they thought. I went to innumerable meetings, and I can describe some of those a little more. All of that was really fun to be in the midst of and try to understand how people thought about it.

Emy diGrappa (15:27):

Just thinking about your career path and your journey and writing this book, where did you have time to work for the Casper Star Tribune? Where did that fit in?

Anne MacKinnon (15:37):

Well, when I came covering coal and energy and I worked there from '79 with then a year off to finish law school and then until 1995. So I was there for 15 years. I was covering water for them, but I started writing columns about it and stuff after I left the paper in 1995. By then my son was three years old and I didn't have any chance of working on this stuff when I was either reporting for or running the paper.

Emy diGrappa (16:13):

Well, another interesting thing that keeps coming to mind is the fact that you are talking about working in energy and I think that that is a male dominated field.

Anne MacKinnon (16:27):

It was. It's less so now, but it was, yeah.

Emy diGrappa (16:29):

Right. So what was that like?

Anne MacKinnon (16:31):

It was fascinating. The people were very nice. It was an interesting time. I got here in '79, I was back in '81 and the oil prices fell in '82, so there was a lot to talk about. Some of the guys that were called independents, independent oil men in Casper, who were also very significant in state legislature, they were in their prime. These are guys that maybe showed up soon after World War II and were working for major companies and then the major companies tried to move them. These would be geologists or landmen or whatever, tried to move them because major companies usually do that. Let's go to Dallas, let's [inaudible 00:17:12]. They were like, "No, I think I'm going to stay here."

                 They worked as independents and in the legislature, they were pretty significant forces who were saying, "For the good of Wyoming, here's how we need to treat this industry. Not for the good of the industry. I mean, yes, we want the industry to keep happening, but here's a way for the good of Wyoming to benefit from the industry." They were very thoughtful and effective people. Most of those guys, Morton, [inaudible 00:17:44], they're gone now, but they were quite significant at the time.

                 I did have one experience, if you're interested in this question of being a woman covering the industry. One of the most interesting things for me that first year I worked for the Star Tribune was there was a strike at the refineries by the oil chemical and atomic workers. I was covering that both here and down in Sinclair. As I was talking to the lawyers, I had just taken a course in labor law. But to them, I was this girl reporter. They said things about what was going on, including, "Well, we're at an impasse." Well, that is a very particular term in labor law, which I knew. I was like, "Oh yeah, an impasse. What? Dah, dah, dah, dah." I never said, "Yeah, I just took a labor law class." It was quite a pleasure to then write a story that they were pretty clearly like, "Oh, ooh, ah, she knew what that was. Oh, yuck."

Emy diGrappa (18:56):

Well, good for you. Moving on from there, because I think that as a editor at the Casper Star, I'm sure that it was very interesting for you during those times to just see the boom and bust cycle of Wyoming.

Anne MacKinnon (19:13):

Yeah. I mean, it was a different form of the same thing I knew about from coal history in Kentucky and West Virginia. Yeah, I mean, there were definitely years when the state budget was rescued by a major millionaire dying without a will. But the state had also created in the '70s, the permanent mineral trust fund and other accounts that severance tax money went into and those are quite important now. Yeah, watching that, and I've seen a few too many efforts to say, "Oh, we need to diversify," with again, not thinking about changing the tax structure.

Emy diGrappa (20:02):

Oh, interesting. Tell me more about your book, because why do you think people should read this? What is unique about it? What is the lesson that is from Wyoming for the American West?

Anne MacKinnon (20:15):

Well, there are two important things about it, particularly for Wyoming people. I found as I interviewed people about water and listened at meetings, that people in Wyoming are very proud of their water law and Elwood Mead's creation of it and so on. It tends to be not exactly articulated but implied that water law is pretty close to tablets from Moses. Written in stone and does not and should not change. And that is not true. Water law, like any kind of law, has to reflect the people and the changes in the society in which it operates. Water law in particular reflects how people think about this resource and relate to each other. And because water, unlike coal, moves, which is what made it more and more interesting to me in contrast to coal, it connects people who maybe don't really want to know each other, but they end up having to know each other. Because of all those things, water law has changed.

                 Water law in Wyoming has changed and accommodated new developments since the 1890s. Here we are 130 years later, the state has changed particularly actually with energy development. Now, again, as energy development is fading. But the people need to understand that so that they can appreciate and participate in water law changing again. It's not like it changed once and then changed now, again. It's been developing and changing over time and that needs to keep happening when we're dealing with major issues like climate change and for Wyoming, big economic change. In other places, there's huge population pressures that are also significant, that's a little less true here. But the water law is going to need to and you can see it accommodating it. But people need to welcome and appreciate and contribute to that, rather than feel like water law should never change because it is tablets handed down and we can't allow change.

                 That was one important thing I wanted to get across. I suspect water users in other states tend to feel the same way, rural water users. I'm not talking about municipal or industrial users. But rural water users, they use the majority of water in Wyoming and in the entire American West. Some of those of course are big rural corporate farms, that's true in Wyoming. But the other thing is that the title public waters that comes from something that Elwood Mead mentioned several times. I have a particular quote from him about it in which he talks about... Let me pause and get that quote. In which he says that he believes fully in the doctrine that public waters should remain a public property and that to grant private perpetual rights is to sacrifice the welfare of future generations.

                 You don't often hear people talk about that because people really have ended up thinking of their water rights as a private right. That's understandable because they put a lot of blood, sweat, and tears into creating that right. Digging the ditch, flattening out the surface of the land so that it is irrigable, all of that and then maintaining it. But the idea of the book, the idea of Elwood Mead, and I think what you can see throughout in Wyoming water over time, over this 130 years, is that there is always a sense that it is the public welfare that is involved. The public has a major role through the state as a representative of the public, the public has a major role in managing waters.

                 So that if you think about and the way lawyers often think about property right or rights to a resource, you can have the right to access it. You can have the right to use it. You can have the right to manage the use of it. When, what season, blah, blah, blah. You can have the right to exclude others from it and you can have the right to transfer it. They call it alienation. You can transfer it to somebody else. Well, that's pretty much true of land. If you own land, there are a few zoning restrictions. Sometimes Wyoming doesn't go in for a lot of those, but you have all those rights as the owner. But water, typically the person who has a Wyoming water right, has the right to access and to use and depending on the place and the era and the overall situation, has some management powers. Definitely doesn't have the power to exclude. Only the state can decide who is allowed to have a water right and also decide who will have their water right extinguished. The state also decides whether and how water rights can be transferred.

                 That level of state ownership of the water, which all the Western states talk about state ownership of water, but Mead particularly wanted to make that concept come alive and he did it in a variety of ways. But including that you had to get a permit and then have a right inspect it and you had to put the right to beneficial use and that had to be verified and so on. It ebbs and flows, the presence of the public and the awareness of the public rights. But interestingly in recent years, I think people are more and more aware of that as we're involved in interstate conflicts, including the one that I mentioned. The state is the effective negotiator for Wyoming water users on the claims of Nebraska or of states down river on the Colorado River. The state ends up in the Nebraska case, modifying somewhat how water rights will be managed in Wyoming. Some people will not get as much water as they used to, but it's worth it for the overall settlement and for the overall public good.

                 Yeah, so I think those two things. I think that people in other Western states need to think about that. They need to really look into the history of their own place. Particularly places like Colorado and California have had big growing economies, population and major investments. So those major investments in water infrastructure, big federal projects and so on. We have a couple of those, but nothing like you'd see in California. That sometimes obscures how people are dealing with water on this local world level. But I think if you look at that, you will find this understanding all the way through that water is not like land and it carries this weight of the public welfare in the allocation of it. People have to, in the end, think about that. They have to expect that the public welfare is one of the considerations that is going to affect their private use of water.

                 I think similarly, and in other states, they need to be aware that water law has changed and will change. It's wonderful how many new people and women are coming into working on water resource issues, but you need to understand the history of us local societies' rules about water, to be able to even think about how it might adapt to change and new challenges. Because it's incremental mostly how people change, and they need to feel the connection to their tradition and understand the need for the change and be able to make that change. If you're a bright, young, new person working on water policy, you too need to understand where some of those rules came from. What the why was, as you would say in your podcast, and then be able to talk to people to figure out if there is room for change and need for change in response to some of the challenges we have today, like climate change.

Emy diGrappa (29:43):

My last question to you, Anne, is this a book that is more a scholarly journal on water and how it affects the American West? Or is this something that I should be thinking about when I go and turn on my water in my house every day and consider the luxury of turning your water on every day? How are people relating to your book? I mean, is it something that is scholarly where people who really are digging in and learning about water law are going to understand? Or is a lay person who is just really not educated in it, the way you are, going to relate to it?

Anne MacKinnon (30:32):

It's meant to be for lay people. I feel that one of the ways to talk to people is about their history. Particularly in Wyoming, we love our history. So it's full of names and stories about people, where they lived, who they married, where their ditch was, what kind of fight they had over what. It's not actually full of fights, but what kind of issues and challenges were brought up. I wrote a PhD thesis when I was working on all this and nobody reads those. You can't, they're totally unreadable. So this is meant to be something that people in Wyoming would read, because it's an important part of their history. It's not for technical people. Although I think lawyers and engineers, it would be good for them to read it because several of them said to me, "Oh, if I had known that history, it would've made a big difference to what I did about X." So it will be good for them.

                 I cite cases in the footnotes and stuff, but you don't have to hear about that when you're just reading the book. I hope people will enjoy it and I've had people say, "Oh! Boy, this is really readable." I also sent it off to friends who live in the East Coast and the West Coast and the South, who have no interest in water issues or Wyoming and they were like, "Oh, this is kind of fun to read." That's what I was hoping for. I hope that will prove to be the case.

Emy diGrappa (32:13):

Okay. I'm really happy to hear that. Tell us where you can find your book.

Anne MacKinnon (32:20):

Well, some bookstores. Now, I'm trying to send things off to bookstores and libraries, but the thing to do is to go to your local bookstore and say, "Well, you should stock this book, or at least order one for me." You can order it through the publisher. I have a website; anneMacKinnonwriter.com and it has on there a link so that you can buy the book, but that's a direct link to the publisher. You can buy it from the publisher, but they charge, I think it's $7 bucks just to ship it. So if you ask your bookstore to get it, there will be a little shipping charge, but nothing like that. It'll also mean that maybe others will see it on the shelf in your bookstore or in your library.

                 On that same website, www.annemackinnonwriter.com, I have links to talks and book discussions, most of which have already happened. A couple of book discussions are still coming up. One Thursday, the 20th and one June 3rd. The idea is you read a few chapters and you can catch up. I have experts talking about people who were involved in one way or another, and the issues that are in the chapters we're reading. It tells you on the website which chapters go with which event. And there's recordings of it so you can catch up with them if you want to.

Emy diGrappa (33:46):

Oh, that's good to know. Well, thank you so much for your time, Anne.

Anne MacKinnon (33:51):

Oh, thank you. It was really a pleasure to meet you and to talk about this. Thank you.

Emy diGrappa (33:56):

Thank you.

                 Thank you for joining us for this episode of What's Your Why?, brought to you by Wyoming Humanities, with support from Wyoming Community Foundation and generous supporters like you. To learn more, go to thinkwhy.org. Subscribe and never miss a show.