Monday, November 3, 2014

#308 / Whose?

California Lawyer is a monthly magazine aimed, as the name implies, at California lawyers. Since I am a California lawyer, I get a copy in my mailbox each month. The cover story of the November 2014 edition asks this question: "Whose Groundwater Is It?" Persons interested in exploring that topic might want to click the link, to read about recent litigation (and legislation) addressing that very important inquiry.

In California, historically, the "ownership" of water has basically been assigned to those who took it (first), as long as they are actually "using" it. There haven't been, really, any limits on an individual's use of groundwater, and that has, naturally, led to trouble, because what one individual does by way of taking water out of the ground affects others. In fact, as the magazine article documents, when too much groundwater is taken out of the ground to grow hay in Scott Valley, that action results in the death of the salmon that support the fisheries of the West Coast.

More and more, the law is starting to recognize that water (like any other natural resource) is not produced by our individual activities, lessening any claim that we can "own" the resource. We don't, actually, create the World of Nature upon which we ultimately depend, which tends to mean that claims of "ownership" are overreaching. If anyone "owns" groundwater, it is all of us, collectively, not any one of us, individually. 

The people pictured here, though, are ready to fight and to go to jail to protect "their" water. Like the salmon, they're swimming upstream. The courts and the Legislature are increasingly constraining individual claims to "own" water. 

In my view, we can never, actually, "own" anything that pertains to the World of Nature - either individually or collectively. 

The Earth does not belong to us. We belong to the Earth.

Image Credit


  1. If nobody owns the ground water, what's to stop someone (like fracking companies) from using more than their fair share? Whatever answer you give, please understand this answer is part of the definition of ownership that you pretend not to believe! The answer to the question "what stops someone from using ...?" is the foundation of property law.

    Wait, why do I have to explain this to a law professor?

    1. As ever, I appreciate your comments. But you do not "have" to explain why you think my comment is in error. The thought that someone needs to "correct" those in error, in every case, is indeed a "police" mentality. You've picked a good handle for yourself.

    2. My handle has nothing to do with my argument. Talk about an ad hominem fallacy! You're literally making snarky comments about my name instead of addressing the issue! It's clear you have no defense for your half-baked ideology.


  3. Thank you, Michael! Listen to what water is saying, using the voice of Penelope Cruz, if you haven't seen this brief video.


Thanks for your comment!