When the well’s dry, we know the worth of water.

- Ben Franklin, Poor Richard’s Almanac

From A History of Water Rights at Common Law, by Joshua Getzler, which is now on my Xmas List (only $50 at Amazon):

Water resources were central to England’s precocious economic development in the thirteenth and sixteenth centuries, and then again in the industrial, transport, and urban revolutions of the late eighteenth and early nineteenth centuries. Each of these periods saw a great deal of legal conflict over water rights, often between domestic, agricultural, and manufacturing interests competing for access to flowing water. From 1750 the common-law courts developed a large but unstable body of legal doctrine, specifying strong property rights in flowing water attached to riparian possession, and also limited rights to surface and underground waters.

The new water doctrines were built from older concepts of common goods and the natural rights of ownership, deriving from Roman and Civilian law, together with the English sources of Bracton and Blackstone. Water law is one of the most Romanesque parts of English law, demonstrating the extent to which Common and Civilian law have commingled.

Alabama water rights are determined under Riparian Rights for surface waters.  The United Kingdom and most U.S. States East of the Mississippi River follow Riparian Rights (derived from English Common Law); most Western States use the Prior Appropriation doctrine.  Basically, water is owned by the Government (Federal and State), so proper stewardship of this public resource is a function of Government.

Riparian water rights occur as a result of landownership. A landowner who owns land that physically touches a river, stream, pond, or lake has an equal right to the use of water from that source. This water right, however, is only a usufructuary right and not a property right in the water. The water may be used as it passes through the property of the land owner, but it cannot be unreasonably detained or diverted, and it must be returned to the stream from which it was obtained. The use of riparian water rights is generally regulated by “reasonable use.”  

The prior appropriation doctrine (also known as the Colorado Doctrine from Wyoming v. Colorado), or “first in time - first in right”, developed in the western United States in response to the scarcity of water in the region.

Legislative committee takes first step toward water policy

The Permanent Joint Legislative Committee on Water Policy and Management met at Auburn University in its first meeting since being formed this spring. The committee is made up of seven members each from the House and Senate.

Its members at the meeting chose State Sen. Kim Benefield, D-Woodland, chairman and Rep. Greg Canfield, R-Vestavia Hills vice chairman. The pair sponsored the legislation that created the committee… the group is to recommend a water management plan that expands the availability of water to meet Alabama’s current and future needs, develop conservation programs, and identify areas where more research is needed.

Workshop sessions are being led by officials from Auburn’s Water Resources Center, the Alabama Cooperative Extension Service, the Geological Survey of Alabama, the Alabama Office of Water Resources, and the Alabama Department of Environmental Management.

Investing in state’s waterways, by State Senator Kim Benefield (D - Woodland) and State Representative Greg Canfield (R - Birmingham):

Ten percent of the nation’s rivers pass through Alabama… the U.S. Geological Survey continues to report that most of Alabama is seeing below-average stream flows. Ground-water levels in Huntsville are far below normal, and in Montgomery ground-water levels have reached a new record low…

Created by the passage of SJR28 — bipartisan legislation we were pleased to sponsor — the committee met at Auburn University to begin the process of studying Alabama’s water resources and assessing our future water needs…

Our recognition of the many critical roles water plays in Alabama spurred us to sponsor SJR28, and now we are committed — as chair and vice-chair of the Permanent Joint Legislative Committee on Water Policy and Management — to developing a consensus-based water-management plan that takes into account the needs of every Alabamian and serves our citizens well in the future.

Beth Kellum faces Lucie McLemore in the GOP Primary Run-off for Judge of the Court of Criminal Appeals, Place 1. Kellum got 34% of the vote in the Primary, McLemore got 24%, Peggy Givhan lost with 22%, and Teresa Petelos lost with 21%. The winner faces Democrat Clyde Jones in the General Election.

The Alabama Court of Criminal Appeals is “composed of five judges, one of whom is elected by the members of the court to serve as presiding judge. The Court of Criminal Appeals hears all appeals of felony and misdemeanor cases, including violations of city ordinances and all post-conviction writs in criminal cases”.

Beth Kellum:

…served as an Assistant Attorney General; staff attorney for the Court of Criminal Appeals; private law practitioner for seven years, and as a  senior staff attorney for the Alabama Supreme Court.

Lucie McLemore:

…private law practice in Montgomery with her father… District Court of Montgomery County, winning primary and general elections in 2000.

 UPDATE:

Just had the pleasure of hearing both candidates present 5 minute speeches.  Both candidates gave great speeches; both noted their Conservative approach; either of them would make a fine Appeals Court judge.

Beth Kellum noted her work as Staff Attorney for the Court of Criminal Appeals and her work with the Republican Party.  She spoke of her legal opinion-writing experience and knowledge of the Court and Court Administration. 

Her handout headline: “Fair, Experienced, Conservative”.

Lucie McLemore said she was a Conservative like Ronald Reagan, Mo Brooks, and Faye Dyer.  She received applause when she noted that as a District Judge, she actually made criminals pay their fines and restitution (collected $1.5 million).  She also noted her work with the Republican Party. 

Her handout headline: “Experienced, Fair, Conservative”.

Twinkle Andress Cavanuagh and Matt Chancey are candidates in the GOP Primary Run-off for President of the Alabama Public Service Commission.  Cavanaugh received 47% of the GOP vote; Chancey received 29%; Jack Hornady lost with 24%.  The winner of the run-off faces Democrat Lucy Baxley in the General Election.

The PSC mission is “to ensure a regulatory balance between regulated companies and consumers in order to provide consumers with safe, adequate and reliable services at rates that are equitable and economical”. 

The PSC evolved from the Railroad Commission and regulates: “railroads… express companies, sleeping car companies, railroad depot or terminal stations, telephone and telegraph companies, plus transportation companies operating as common carriers over water, toll bridges, toll ferries, and toll roads… utilities providing electricity, gas, water, and steam, companies operating streets or inter-urban railways… approving the sale or lease of utility property or franchises… utility rates… motor transportation companies… Air carriers… natural gas transmission and distribution systems… radio common carriers… railroad tracks and equipment”.

The PSC regulates Energy (Electricity, Natural Gas, and Water) Companies like Alabama Power, Mobile Gas Service, and Hiwanee Water; Telecommunications Companies like Bellsouth; Gas Pipelines like Enbridge Pipelines; and thousands of Motor Carriers (Trucking, Towing, Buses, Limos, Cabs).

Twinkle Andress Cavanaugh:

Elected Chairman Alabama Republican Party, served as Senior Advisor to Governor Bob Riley, served as State Director of Citizens for a Sound Economy.

Matt Chancey:

The Chancey Five-Point Plan to Improve the Public Service Commission

1.  Nuclear Power Expansion

2.  Clean Coal and Other Fossil Fuels

3.  Hydro-electric Expansion

4.  Supporting Economic Development

5.  PSC Performance Review

 UPDATE:

Just had the pleasure of hearing five minute speeches by both candidates.

Twinkle Cavanaugh noted her experience with Citizens for a Sound Economy and as a Senior Advisor to Governor Riley, working with the Alabama Development Office, EMA, and Homeland Security.  She tied her experience to issues facing the PSC, for example noting that one of the key factors in the Thyssen-Kruppe decision to locate the steel plant in Mobile was lower utility rates. She also noted her work as the Chair of the Alabama Republican Party.

Matt Chancey said he wanted to “Mo Brooksify” the PSC.  He noted that the PSC should educate consumers about nuclear power, and he supports the TVA Bellefonte Nuclear Plant.  He said that the PSC should examine their policies as part of a Performance Review of the agency. He also noted his work with the Republican Party (Vice-Chair Dale County Executive Committee).

Outdoor mega-retailer Bass Pro Shops is planning on coming to Decatur.  Hooray, right?  Not so fast.

The store will be part of the “Sweetwater” project - and the city offered up a sweet deal indeed to entice the outdoor juggernaut.  The city will give them - that’s right, give them - a “free” $32 million dollar building sitting on a $2.5 million dollar piece of land.  That is in addition to millions of dollars in infrastructure improvements.

The deal has predictably irritated a Decatur outdoor retailer that has been in business for over five decades.  David Wiley of Wiley’s Outdoor Sports is fighting the sweetheart deal.  He has launched the aptly named website www.saynotobasspro.com and has been on WHNT (video here) and in the Decatur Daily.

Long time readers know that I am no fan of government furnished corporate welfare.  I abhor seeing the government giving one business a competitive advantage over another.  This particular case is especially egregious.  Wiley Outdoor Sports has been in business locally since 1953.  The stakeholders there have deep roots in the community.  For the city to extend such a generous offer to attract a large, out of state direct competitor to come to town and siphon off business from Wiley’s is unconscionable.

Decatur mayor Don Kyle gave this statement to WHNT:

The development will add significant value to our community tax base, grow our population, and bring many shoppers off the interstate and from surrounding communities to shop in all our stores.

It reminds me of the mindset present in the infamous Kelo vs. New London SCOTUS decision.  While that case centered on eminent domian abuse, the local officials in Connecticut shared Kyle’s philosophy.  All they care about is growing the tax base.  To hell with anyone who may be hurt along the way.  Kyle gave his statement in response to a story specifically about the impact on local competitors, namely Wiley’s.  He acted as if Wiley’s didn’t even exist or, worse yet, that having a Bass Pro Shops down the road will somehow help Wiley’s business.

If Bass Pro wants to come and pay their own freight I wouldn’t even bat an eye.  But to provide such an unfair advantage to one company at the expense of a local company is detestable.  Is it really worth growing your tax base if it means trampling all over members of the community who took risks to establish and operate businesses?

[Sidenote: I'm a big Bass Pro fan.  Back when I was a kid I convinced my parents to route our summer road trip so that we went to the original Bass Pro store in Springfield, Mo.  Some kids want to go see a pro baseball game.  I wanted to shop at the fishing gear Mecca.] 

AL-05 (100% reporting)

Parker Griffith has the Democrat nomination sewn up with about 90% of the vote. David Maker pulled in twice what I expected with 10%.

In the Republican race Wayne Parker won 49% of the vote, which will trigger a runoff. Cheryl Baswell Guthrie led the remaining five candidates with 18% of the vote. If Guthrie had an ounce of dignity or any respect for the party she would concede. There is no way - NO WAY - that she will win a runoff with Parker. All she’ll do by prolonging her futile vanity campaign is harm Parker’s chances against a very strong Democrat adversary.

Side notes on the race…

• David Maker received 3,874 votes, which is more than Ray McKee, George Barry, or Mark Huff. Ouch.
• Cheryl Baswell Guthrie got 6,941 votes. That’s about $70 per vote.
• There were 38,415 votes cast for the two Democrat candidates, but only 37,934 cast for the six Republicans. This is a very bleak sign for the Republicans. There was little motivation for Dems to come out and vote for Griffith, who was a shoe in. The Republican race was a great deal more wide open, which should have resulted in a strong turnout - and they still got out voted by the Dems.
• Every FairTax candidate finished behind candidates who did not support the FairTax.

Madison County (99% reporting)

The sales tax increase got shot down, as expected. 64% opposed the tax hike and 36% supported it. I’m predicting we haven’t heard the last word on this. The county commission can still vote to implement this sales tax at any time. I’ve heard murmurings about certain county commissioners possibly voting to pass it shortly after the November election with the expectation that voters will have forgotten after four more years.

County Commission, District 1: Bob Long beat Chris Stuckey 67% to 33%. Both were really solid candidates; I’m surprised to see such a large margin.

County Commission, District 2: Faye Dyer won handily in a tough three person race with 58% of the vote. I’m particularly pleased with this result; Dyer has demonstrated strong leadership in the fight against the half cent sales tax increase. Glenn Watson only pulled in 22%. Who knows how this race would have shaped up if it weren’t for the homeless shelter fiasco. Will Watson stick to his pledge to not seek re-election for his HSV city council seat? He has until July 15th to decide.

County Commission, District 5: Mo Brooks cruised to victory over Bobby Abernathy with 79% of the vote. Brooks is a reliable conservative and ethical leader - no surprise to see him keep a lock on this seat.

County Commission, District 6: Bob Harrison cruised to victory with 74%.

U.S. Senate (97% reporting)

Jeff Sessions and Vivian Figures cruised to victory so that Sessions can smack her down in the general. 14% of Dems voted for Mark “No NCAA” Townsend. That is crazy.

Alabama PSC (98% reporting)

Republican stalwart Twinkle Andress Cavanaugh failed to get through the three person race without a runoff, which is a result that had been characterized in advance as “underwhelming.” She did pull in 47% of the vote, but will have to best Matt Chancey, who won 28%.

State Board of Education (99% reporting)

The candidates propped up by the AEA in an attempt to take control of the board got slaughtered. District 1 incumbent Randy McKinney dispatched Paul Christopher 73% to 27% and in District 3 Stephanie Bell trounced Troy Smithwick 68% to 32%. Alabama educators: I hope you’re happy with the way Czar Hubbert spent your confiscated dues on losing candidates so he could try to preserve fake, cushy jobs for legislators.

From AL.com:

State Sen. E.B. McClain has been named in a 50-count indictment by a federal grand jury on charges of conspiracy, mail fraud money laundering and bribery involving a program receiving federal money.

U.S. Attorney Alice Martin during a press conference today said McClain used his public office for “personal profit.”

“He worked the ‘pass through grant process not to help his community and those in need of GED training, but to line his pockets with over $300,000,” Martin said.

50 counts!  Dang.  The state of Alabama is already after him for allegedly using grants to line his on pockets.

The Alabama legislature failed to pass the education budget yesterday on the last day of the regular session.  The disagreement was over $25 million that higher education institutions wanted.  The total education budget was $6.3 billion.  That’s right, they’re forcing a costly special session over a disagreement amounting to 0.4% of the total education budget.

From the Tuscaloosa News:

The Alabama House has approved a bill to add crimes against people because of their sexual orientation to the state’s hate crimes law.

The bill by Rep. Alvin Holmes, a Montgomery Democrat, generated heated criticism last year and did not get enough votes to come up for passage. The bill passed Tuesday by a close 46-44 vote with no discussion.

The bill now goes to the Senate where passage is doubtful with only two days remaining in the regular session.

Holmes said the state’s current hate crimes law, passed in 1994, includes crimes against people for race, color, religion and national origin, but left out sexual orientation because of a technical mistake.

I wasn’t even aware that Alabama had its own “hate crimes” laws.  I’ll state up front that I fundamentally disagree with laws that punish people for thoughts.  At least federal hate crimes serve an ostensibly more virtuous purpose as they enable federal prosecution in cases that would otherwise be purely within the state’s jurisdiction.  I suppose the thought is that some locales might be reluctant to prosecute crimes committed against certain minority groups and that the federal government should be able to sweep in and right the situation.

The Alabama law, however, doesn’t serve such a purpose.  It merely lumps on additional punishment because of your thoughts or beliefs.  That is asinine.  If someone burns down my house for fun they should be eligible for the exact same punishment as someone who might burn down someone else’s house who might belong to a state sanctioned protected group.  In either case the criminal is prosecuted for the actual crime, but due to “hate crimes” laws the “hateful” person gets punished further because the state didn’t approve of their thoughts.

Here is Alabama’s hate crime law as it is currently written:

Section 13A-5-13

Crimes motivated by victim’s race, color, religion, national origin, ethnicity or physical or mental disability.

(a) The Legislature finds and declares the following:

(1) It is the right of every person, regardless of race, color, religion, national origin, ethnicity, or physical or mental disability, to be secure and protected from threats of reasonable fear, intimidation, harassment, and physical harm caused by activities of groups and individuals.

(2) It is not the intent, by enactment of this section, to interfere with the exercise of rights protected by the Constitution of the State of Alabama or the United States.

(3) The intentional advocacy of unlawful acts by groups or individuals against other persons or groups and bodily injury or death to persons is not constitutionally protected when violence or civil disorder is imminent, and poses a threat to public order and safety, and such conduct should be subjected to criminal sanctions.

(b) The purpose of this section is to impose additional penalties where it is shown that a perpetrator committing the underlying offense was motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability.

(c) A person who has been found guilty of a crime, the commission of which was shown beyond a reasonable doubt to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, shall be punished as follows:

(1) Felonies:

a. On conviction of a Class A felony that was found to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, the sentence shall not be less than 15 years.

b. On conviction of a Class B felony that was found to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, the sentence shall not be less than 10 years.

c. On conviction of a Class C felony that was found to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, the sentence shall not be less than two years.

d. For purposes of this subdivision, a criminal defendant who has been previously convicted of any felony and receives an enhanced sentence pursuant to this section is also subject to enhanced punishment under the Alabama Habitual Felony Offender Act, Section 13A-5-9.

(2) Misdemeanors:

On conviction of a misdemeanor which was found beyond a reasonable doubt to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, the defendant shall be sentenced for a Class A misdemeanor, except that the defendant shall be sentenced to a minimum of three months.

If I read that correctly any misdemeanor, regardless of how trivial it may be, that was deemed to be committed based on “the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability” will guarantee the offender no less than three months behind bars.

Holmes’ proposed modifications would add “sexual orientation” to the list of protected characteristics, with “sexual orientation” defined as “heterosexuality, homosexuality, or bisexuality.”  I’m only half surprised they didn’t include transgenders.

The bottom line is that in Alabama you should be punished for committing a crime against anyone.  Period.  Additional punishment for your state of mind is unnecessary and, quite frankly, unfair to victims whose assailants receive less punishment because their assailants didn’t single them out for some state approved reason.  The legislature should not waste time with this particular bill and should instead take efforts to repeal Alabama’s existing hate crimes law.  Alternatively, they could just go ahead and make everyone a protected group and therefore amplify the punishment for all criminals.

From AL.com:

The Alabama Legislature sent to Gov. Bob Riley a $2.01 billion general fund budget Tuesday that depends, in part, on an appeals court’s restoring $63 million to the fund and an uptick in the state’s economy.

The House voted 78-26 to concur with the Senate version of the budget, which passed the upper chamber earlier in the day on a 29-4 vote.

Also of note from the article:

In an April ruling, a Montgomery judge agreed with Tuscaloosa businessman Stan Pate, who argued that Riley improperly transferred $63 million to the general fund.

Circuit Judge William Shashy issued a preliminary injunction against the transfer and ordered the money restored to a state savings account known as the Alabama Trust Fund.

The litigation is part of Alabama’s long-running lawsuit against Exxon Mobil Corp. over royalties due from natural gas wells the company drilled in gulf waters off the Alabama coast. The state won a $3.6 billion verdict in 2003, but the Supreme Court tossed out most of that in November 2007.

“We lost billions of dollars in ill-gotten gains that the jury had penalized Exxon for that could have really helped our children in this state,” said [Sen. Roger] Bedford.

I have discussed the Exxon Mobil royalty issue ad nauseam here, but I couldn’t let Bedford’s absurd quote go unnoticed.  After all the legal dust from the case settled the state would up losing absolutely no “ill-gotten gains.”  Exxon Mobil paid back every cent that they were found to be liable for plus interest.  What they didn’t pay was the egregiously high multi-billion dollar punitive award that was ultimately struck down.

The author, Bob Lowery, mentions the compensatory award, but sprinkles in what I construe as an editorial comment on the situation by stating that, “Coincidentally, Exxon Mobil just recorded the highest quarterly profits in the it’s history - $11.7 billion.”  That has absolutely nothing - not one thing - to do with the matter at hand.  Lowery chose to toss that little nugget of information in not because it adds value to the story, but because it may bias the reader against the big, rich, evil oil company.  So what if Exxon Mobil is a profitable company?  Should they have to pay beyond what they legally owe simply because they have the misfortune of being large and reasonably successful?  Lowery’s injection of Exxon Mobil’s profits into an unrelated story, which I might add is something of a pastime in the journalism circuit, sounds like a faint call for “each according to his ability.”  Is Lowery advocating for income or profit based fines like the Finns issue for speeding tickets?

Recently the Alabama House passed a bill that would officially legalize double dipping.  Nothing surprises me anymore with those guys.

Numerous editorial boards across the state have denounced the move.  But whatever the Alabama Senate might do to move the bill forward it may all be for not.  That is because due to a filing glitch the Senate cannot pass the bill until the final day of the session, which leaves the bill susceptible to a pocket veto by Gov. Riley.  So far Riley is promising to veto the bill.