Interpreting the ecological integrity myth: a response to Professor Blumm.

• Author: Hobbs, Gregory J., Jr.
• Position: Response to Michael C. Blumm, Environmental Law, vol. 24, p. 171, 1994

1. Introduction

   Michael Blumm's spirited defense(1) of the Long's Peak Report,(2) which he helped to author, deserves a reply. It is true that my critique' focused on what I view to be the anti-use, anti-storage, and anti-local bias of that report, and not on moderate reform proposals with which I agree. I also agree that the report acknowledges a role for state and local government. However, that role is primarily limited to implementing federal mandates, subject to enforcement by citizen suits, and does not account for the primary responsibility of state and local entities for water-supply planning and decision-making.

   The Long's Peak agenda is directed at maximizing federal regulation over water resource decisions and minimizing independent action under state and local law. For example, the Long's Peak Report recommends:

   Federal agencies with water program responsibilities should look for opportunities to delegate to or share management responsibilities and regulatory authority with governments at the level most closely affected by program decisions, including local, state, tribal, and regional governments. This should be conditioned upon compliance with federal standards. Authority for citizens to bring suit in federal court to compel compliance with federal standards should attend the transfer of regulatory authority.(4)

   General Principle (1) of the "Institutional Reform" section states that "[i]nstitutional design for water resources management should be directed at making the most effective use of all levels of government, and strengthening opportunities and incentives for private action."(5) These and other sections of the report appear to presume that a federally-designed water control program would replace long-standing state and local water rights and planning prerogatives explicitly recognized in such federal statutes as the Clean Water Act.(6)

   Blumm characterizes my Long's Peak critique as the "rhetoric of resistance." His use of colorful, personally-directed rhetoric, such as "anachronistic," "hyperbole," "diatribe," "attack," and "canard," demonstrates an enthusiasm for that art. Since rhetoric has a long classical tradition in both the academic community and in the rough and tumble of public policy formulation, I congratulate Environmental Law for opening its forum to our debate.

   I do not propose to respond point by point to Blumm's article, but rather to dispute the form of historical and legal revisionism which I believe underpins his thesis, and which is also a major premise of the Long's Peak Report. In particular, Blumm asserts that "Pinchot's multiple use paradigm on the public lands ... bears little or no resemblance to how water is allocated in the West."(7)

   From the standpoint of history, law, and practice, I find such a statement to be incredibly unsupported, and certainly a cause for scurrying back to the books for additional illumination. As a result, I am more, not less, convinced that ecological integrity, the new western myth, is opposed to progressive conservation law which embodies a much fuller spectrum of the public interest, including beneficial uses under state water law, environmental protection, and enhancement.

   As summarized below, historical literature supports the identification of at least five antecedent manifestations of western myth which characterize Americans' relationship with the environment: the Pioneer Frontier Myth, the Great American Desert Myth, the Great American Garden Myth, the Progressive Conservation Myth, and the Wilderness Preservation Myth.

   I have no doubt that the Long's Peakers intend to spur a sixth paradigm which I call the Ecological Integrity Myth. This modern myth has its spiritual foundation in the Wilderness Preservation Myth, but is intended by its proponents to have far greater reach than the 1964 Wilderness Act. The ecological integrity advocates are not content with setting aside wad ecosystems as wilderness. Their stated purpose is to restore natural ecosystems on and off public lands by restricting or extinguishing pre-existing uses which impact environmental values. Adherence to this agenda would sacrifice the public interest multi-use paradigm which was the birthright of progressive conservationism. Instead, ecological integrity would become the dominant aim of land and water management with all other aspects of the public interest becoming secondary or non-functional.

2. Five Antecedent Western Myths

   All western myths trace back, by action or reaction, to the Pioneer Frontier Myth marked by unbridled optimism, entrepreneurial opportunity, and the democratic desire to be free. Walt Whitman sang it so:

   [C]arrying my knapsack and gun, or a miner in California, or rude in my home in Dakota's woods, my diet meat, my drink from the spring ... aware of the fresh free giver the flowing Missouri ... Solitary, singing in the West, I strike up for a New World ....(8)

   For nearly three centuries of territorial expansion, the natural resources of the Great American West were seen as inexhaustible.(9) The pioneer's mission was to bridle the wilderness for human settlement.

   But hardship and aridity intruded as settlers extended their reach. The Great American Desert Myth rudely interrupted the Pioneer Frontier Myth. As official chronicler to the 1820 Long's Peak expedition, Dr. Edwin James described the Rocky Mountain region as a "dreary plain, wholly unfit for cultivation, and of course uninhabitable by a people depending upon agriculture for their subsistence."(10)

   The post-Civil War boomers like Colorado Territorial Governor William Gilpin, inviting American citizens to embrace the promise of land ownership under the 1862 Homestead Act, railed against the desert view, proclaiming the West to be a rich and habitable land containing "gold in mass" waiting for "the energy of our pioneers."(11) Gilpin once estimated that the area between the Alleghenies and the Rocky Mountains was capable of supporting a population of 180,000,000 people.(12) But as the wet cycle of the 1860s closed into the bone-searing winter of 1886 and the ensuing ten-year drought, the Desert Myth bit back at the Garden Myth. Homesteads were abandoned en masse.(13)

   By the late nineteenth century, unrestricted logging and mining practices attested to the fact that the West's natural resources could be wasted by prodigal practices. Forests were stripped bare, and streams ran brown and red with sediment and heavy metals. Born of the age of enlightenment and scientific exploration,(14) the progressive conservation movement, led notably by Gifford Pinchot and Theodore Roosevelt, obtained the withdrawal from homesteading of 14.3 million acres of forest reserves in Colorado alone.(15)

   Here the water needs of the western settlers were confronted, for the first time, with a national conservation agenda. Vast forest reserves were set aside primarily to assure a continuous supply of water and a sustainable supply of timber to the settlers of the West. Anti-federal insurgents like Colorado Senator Henry Teller, desiring that all public lands be conveyed to private ownership, reacted bitterly. But Colorado farmers and cities supported creation of the reserves as the best guarantee of reliable, clean, and legally secure water supplies...