Over the past few months, the Rogue Valley has become home to one of the weirdest, most perverse causes celebres of our time: the plight of poor Gary Harrington, who was imprisoned for the crime of collecting and storing rainwater on his own property. A surprisingly wide coalition, including libertarians, permaculturists, and even Thomas Drake, who is about as genuine voice for civil liberties as exists in the United States today, has come to Harrington’s defense, convinced that he is the victim of a capricious and perhaps illegitimate state.

It turns out that there’s a bit more to the story than first meets the eye, at least forty acre-feet more. Harrington’s innocuous little catchment system consists of three ponds with a total capacity of about 40 acre-feet and dams up to 20 feet high. This “rainwater storage” infrastructure is more accurately described as a system of private reservoirs. According to this febrile article claiming that the state of Oregon has criminalized permaculture, Harrington owns somewhat over 170 acres, so he has close to a quarter of an acre-foot of reservoir storage for every acre that he owns. This does not account for any artificial elevation of the water table on his property as a result of the reservoirs, an effective certainty that would further retard the natural flow of water from his property into public waterways downstream. Harrington’s individual effect on the Rogue River, its riparian areas and fisheries is fairly small, but the potential cumulative effect of other landowners appropriating similar amounts of water for their own use without authorization is immense. This gives the state a clear and compelling policy interest in deterring property owners from doing what Harrington has done.

There’s another thing that a casual reader might miss about Harrington’s plight: he has not been criminally charged. What in fact happened was that he was ordered by state water authorities to drain the reservoirs, appealed the order in a state court, lost his appeal, and defied the court order by leaving the reservoirs intact, on the utterly specious and self-serving claim that he no longer had the authority to modify the reservoirs because he had sold them to a private association. Sale price: $4 for the lot of them. As a rule of thumb, if you purposely defy a lawful order from a duly constituted court of law, you’ll go to jail in contempt of court. Courts are rarely inclined to say, “Gee, now, Mr. Harrington, you obviously feel strongly about this, but maybe we could reach a compromise to drain ten acre-feet, leaving you with thirty?” Thirty days in jail for this weaselly connivance in defiance of the law is, as American penology goes, too lenient to register as an affront to civil rights or liberties. The poor jailbird clearly contrived a private membership association for the sole purpose of defying a court of law so that he could continue to withhold water from the public waterways, a fraud for which he has so far not been prosecuted.

The alert student of American history will recognize Harrington’s ownership transfer strategy from the Gilded Age. It’s the same shell company sleight of hand that the industrial trusts used to evade accountability while they did their best to steamroll the unions, civil society, regulators, and anything else standing in their path. Gary Harrington is no scrappy, much put-upon underdog. He’s a petty robber baron. He’s the kind of person who gleefully misappropriates resources from the commons and drags his feet on returning them when lawfully ordered to do so. A lot of people would happily turn into such asshats if given the opportunity; not many people own hundreds of acres, after all, so it’s a small subset who can show their true colors in such a position of privilege. It is for such people, among others, that we enact and enforce laws. If they’re allowed to just do their own thing, they’ll externalize substantial, and possibly unbearable, costs onto other parties, often ones who are much less able to afford adequate counsel to make themselves whole through civil litigation.

The regulations reserving Harrington’s impounded water for the commons are imperfect, but not exceptionally so. The paranoid fringe has made a lot of noise about the exemptions for permanent structures and paved surfaces serving as incentives to despoil agricultural and wild lands. In point of fact, this would be one of the most cost-ineffective and ridiculous ways to secure a water supply. Few landowners would be idiotic enough to attempt such a thing, and especially ambitious ones would have their plans nixed by local zoning authorities or the Oregon Land Use Board of Appeals. Western Oregon is a fairly wet area. In most years, there is enough flow in the streams and rivers for all landowners fronting them to exercise their water rights and still leave a residual flow adequate to support downstream fisheries. These surface water rights can often be supplemented with duly permitted groundwater wells or irrigation district hookups. Except in severe drought years, few stakeholders are truly left high and dry.

Rainwater catchment is a negligible adjunct to these well-established lawful water sources. Really, it’s more symbolic than anything. It has a certain country DIY cred that makes back-to-the-land types cream their pants, and then get worked up into high dudgeon when they perceive an official threat to this piddling source of water that they hold so dear. They don’t want the fucking government interfering in their hobby, or Gary Harrington’s. This is how Harrington, whose reservoirs haven’t a thing to do with permaculture, got adopted by permaculturists as their plucky little underdog ally. The point of permaculture is to build a more or less self-sustaining ecosystem of edible and otherwise useful flora and fauna. One has to work with, not against, the climatic conditions on one’s land to accomplish this, including the hydrological conditions. Or maybe I’m wrong, and permaculture is actually the establishment of cranberry bogs and catfish ponds in the oak scrub for no other reason than the wood that one sports at the sight of unnatural concentrations of water. That seems to be what some of Harrington’s permaculturist allies think. They seem frantic at the thought of being unable to dump large quantities of extraneous water into their food forests because the big bad government told them no.

As Mark Twain said, whiskey is for drinking, water is for fighting over. Just over the hill from “Our Valley” is the Klamath Basin, where, about a decade ago, a rabble of disgruntled ranchers effectively hijacked a federal irrigation system and redirected public water to their lands in defiance of administrative and court orders reserving that water for fisheries downstream in the Klamath River. They did this with Dick Cheney’s blessing, and they remain cult heroes in Mountain West property rights circles to this day. Gary Harrington’s self-important asshattery is by no means unprecedented. Perhaps he’s butthurt that the Oregon state courts weren’t chickenshit in his case like the federal authorities were in the face of the water thieves over the hill. It’s a bad idea for the authorities to let the mass theft of public natural resources slide, even if the aggrieved downstream stakeholders include, God help us, reservation Indians. I’m inferring the racial angle, but it’s an educated inference. Relations between the white man and the red man can be pretty bad in Humboldt County and along the Nisqually River, to name just two areas with which I’m familiar, and even self-styled progressives from farming families on the east slope of the Cascades have been known to refer to “our wetbacks.”

But Indians or no Indians, what does one do for the wittle fishies? Something, hopefully. Again, that’s why we have the hated federal agencies and courts, to strike as reasonable and equitable a balance as possible at times when the stakeholders, left to their own devices, might regress to warfare. It’s called civilization; you may not care for it, but I do, and I’m not the only one. On this side of the Cascade-Siskiyou spine, it’s quite fashionable to be pissy that the upper reaches of the Klamath River remain dammed, blocking fish migration. The undam-the-Klamath crowd is correct that the Klamath fishery would probably be healthier and more robust if the dams were removed, but they never explain what would replace the baseload hydroelectric capacity provided by the Boyle Powerhouse. Contrary to popular belief in these parts, one does not simply make renewable electricity. Flood control considerations might be worth taking into account, too. So it turns out that “Undam the Klamath” is a rather daft policy position. I like healthy fisheries and rivers, too, but I try to live in the real world, in which electricity and flood control have to come from somewhere.

This is the same real world, by the way, in which the water that all the proudly self-reliant screechers in the Klamath Basin obtain at below cost to irrigate their thousands of acres of potatoes and alfalfa has to come from somewhere. These irrigation projects are public goods that have contributed massively to the general welfare by allowing huge numbers of people to be efficiently fed, so there’s no reason to be resentful that the rednecks in the Basin are being subsidized, but let’s please be intellectually honest about it. Barack Obama is right: you didn’t build that. You aren’t even paying for it in full, so a bit of gratitude and perspective might be in order. And if you go ahead and steal it and refuse to give it back when so ordered by a court of law, a bit of jail time might be salutary. Just sayin’.

I haven’t really addressed the libertarian angle of the Harrington donnybrook, but it’s pretty straightforward. It’s another iteration of the perennial libertarian tragedy, the saga of a philosophy that in principle facilitates a flourishing of individual freedom and self-determination but in practice gets hijacked by glorified thieves, who often enough reduce their victims, those with less hustle than themselves, to subsisting on cat food. This is why old-school liberals can’t get elected in Russia; too many Russians remember liberal officials doing things like stealing their province’s entire supply of winter heating coal, selling it on the international market, and pocketing the proceeds. Maybe I made Gary Harrington out to be more haut bourgeois than he actually is. He’d be a piker among the oligarchs. But that’s like saying that Mikhail Khodorkovsky is more congenial than Donald Trump. It’s no reason to speak highly of the jerk.

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