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Full text of "Water supply, water rights and other legal issues at the East Bay Municipal Utility District, 1972-1993 : oral history transcript / 2003"

University of California Berkeley 



Regional Oral History Office University of California 

The Bancroft Library Berkeley, California 



East Bay Municipal Utility District Series 



Robert B. Maddow 



WATER SUPPLY, WATER RIGHTS AND OTHER LEGAL ISSUES AT THE EAST BAY MUNICIPAL 

UTILITY DISTRICT, 1972-1993 



With an Introduction by 
Gayle B. Montgomery 



Interviews Conducted by 

Germaine LaBerge 

in 1997 






Since 1954 the Regional Oral History Office has been interviewing leading 
participants in or well-placed witnesses to major events in the development of 
northern California, the West, and the nation. Oral history is a method of 
collecting historical information through tape-recorded interviews between a 
narrator with firsthand knowledge of historically significant events and a well- 
informed interviewer, with the goal of preserving substantive additions to the 
historical record. The tape recording is transcribed, lightly edited for 
continuity and clarity, and reviewed by the interviewee. The corrected 
manuscript is indexed, bound with photographs and illustrative materials, and 
placed in The Bancroft Library at the University of California, Berkeley, and in 
other research collections for scholarly use. Because it is primary material, 
oral history is not intended to present the final, verified, or complete 
narrative of events. It is a spoken account, offered by the interviewee in 
response to questioning, and as such it is reflective, partisan, deeply involved, 
and irreplaceable. 



************************************ 



All uses of this manuscript are covered by a legal agreement 
between The Regents of the University of California and Robert B. 
Maddow dated February 3, 1997. The manuscript is thereby made 
available for research purposes. All literary rights in the 
manuscript, including the right to publish, are reserved to The 
Bancroft Library of the University of California, Berkeley. No part 
of the manuscript may be quoted for publication without the written 
permission of the Director of The Bancroft Library of the University 
of California, Berkeley. 

Requests for permission to quote for publication should be 
addressed to the Regional Oral History Office, 486 Bancroft Library, 
Mail Code 6000, University of California, Berkeley 94720-6000, and 
should include identification of the specific passages to be quoted, 
anticipated use of the passages, and identification of the user. 

It is recommended that this oral history be cited as follows : 



Robert B. Maddow, "Water Supply, Water 
Rights and Other Legal Issues at the East 
Bay Municipal Utility District, 1972- 
1993," an oral history conducted in 1997 
by Germaine LaBerge, Regional Oral History 
Office, The Bancroft Library, University 
of California, Berkeley, 2003. 



Copy no. 




Robert B. Maddow, 2003 



Cataloging information 



MADDOW, Robert B. (b. 1943) EBMUD attorney 

Water Supply, Water Rights and Other Legal Issues at the East Bay Municipal Utility 
District, 1972-1993, 2003, vi, 304 pp. 

Childhood in Arizona and southern CA; Stanford University, B.A., 1964; Hastings 
College of the Law, J.D., 1967; U.S. Air Force, 1967-1972: contracts, military justice, 
other legal work; East Bay Municipal Utility District, 1972-1993: water rights, utilities 
and environmental law; preserving Mokelumne and American Rivers water rights, 
including EDFv. EBMUD, 1972-1993; affirmative action; responses to drought; 
recreational facilities at reservoirs; Penn Mine; reflections on Vietnam War, relations 
with state and federal water agencies, EBMUD management and board of directors. 

Introduction by Gayle Montgomery, former political editor, Oakland Tribune. 

Interviewed 1997 by Germaine LaBerge for the East Bay Municipal Utility District Oral 
History Series. The Regional Oral History Office, The Bancroft Library, University of 
California, Berkeley. 

Underwritten by the East Bay Municipal Utility District. 



TABLE OF CONTENTS --Robert B. Maddow 

PREFACE by Frank E. Howard i 

INTRODUCTION by Gayle B. Montgomery ii 

INTERVIEW HISTORY by Germaine LaBerge iv 

BIOGRAPHICAL INFORMATION vi 



I CHILDHOOD, EDUCATION AND MILITARY SERVICE 1 
Parents and Sister 1 
Growing Up in Tucson 3 
Childhood Pastimes, Interests, Hobbies 7 
Junior High and High School in San Diego 11 
Influences 15 
College Choices 17 
Stanford University, 1960-1964 19 
Hastings College of the Law, 1964-1967 24 
Jobs During Student Years 26 
Social Life in College 29 
Vietnam s Impact: Nationally, Locally, and Personally 32 
U.S. Air Force, 1967-1972 36 

Colonel Nunn s Influence 38 

JAG 40 

Family: Elaine, David, and Rachel 42 

Religious Background 48 

Decision to Leave L.A. and the Air Force 50 

II EAST BAY MUNICIPAL UTILITY DISTRICT, 1972-1992 53 
Interview with Jack Reilley 53 
Describing the Office 56 
CEQA, NEPA, and ACWA 58 
CEQA Guidelines and Evolution of Environmental Law, 1972 62 
Political Reform Act of 1974 64 
The Fortune 500 Test 66 
Establishing a Network of Water Lawyers 68 
John Plumb, Jack Knox, Rod Franz 73 
Board of Directors 75 

The Brown Act Requirements 76 

Helen Burke s and Ken Simmons Contributions 77 

Change in Board Elections 81 

Role of the General Manager 83 

Bert Carrington and Other Directors 84 

Affirmative Action 88 

Settling a Lawsuit 92 

Human Resources Department 96 

Minority and Women-Owned Business Enterprise Office 98 



District s Response to Drought of 1976-1977 100 

Middle River Pumping Plant 100 

Contra Costa County Supply 102 

Marin County and the Great Circle Route 103 

Customer Usage during the Shortage 107 

Will Rationing Work? 108 

Developing Usage Allotment 110 

East vs. West Argument with Examples 113 

Public Hearing on Rates and Board Support 117 

More on Agreements to Share Water, 1976-1977 118 

Woodward Island Right of Way 120 

PG&E License on the Mokelumne 123 

Changes in Focus from Fifties to Eighties 126 

Declining Block Rates and Chevron 128 

Changing Times Bring New Needs and Different Costs 129 

Marginal Cost Pricing 132 

Taxation of EBMUD Real Property by the Mountain Counties 134 

Experts and Compromise 137 

Effect of Proposition 13, 1978 140 

Bob Maddow as Litigator 141 

Hiring Outside Counsel 143 

III THE AMERICAN RIVER CONTRACT AND CONTROVERSY, 1968-1994 147 

Historical Background 147 

Agreement with U.S. Bureau of Reclamation and Others, 1968 150 

State Water Resources Control Board Decisions 1356 and 1400 150 

Litigation: Environmental Defense Fund (EOF) I, 1972 153 

Plaintiffs 153 

Environmental Impact Reports 154 

Sacramento County Joins Plaintiff Group 155 

Judge Brunn Sustains Demurrer, 1973 156 

U.S. Supreme Court and the Delta Decisions 160 

Litigation: EOF II 161 

Water Action Plan under General Manager Jerry Gilbert 163 

Attempt to Settle Fails, 1984 165 

Preparing for a Trial on the Facts 166 

Hiring Arthur Littleworth s Firm, 1984 166 

Statute of Limitations Issue: Meeting at Norman s 169 

Trial Before Judge Bancroft, Alameda County, 1984 171 

Referral to State Water Resources Control Board 173 

Hearings Before the State Board, 1984-1988 175 

The State Board s Team 177 

Proposed Physical Solutions 179 

Sacramento County s Issues 180 

Senator Greene s Commitment on S.B. 2458, 1986 183 

Assemblyman Isenberg and Water Meters 185 

Art Littleworth and the Defense Team 189 

Report of State Water Resources Control Board, 1987 191 



Another Trial in Alameda County Superior Court 192 

Daily Summaries and Expert Witnesses 195 

Judge Hodge s Decision and Continuing Jurisdiction 197 

Assessment of the Reference Procedure 201 

Principle of Concurrent Jurisdiction 203 

Public Trust Doctrine 207 

Water Quality Issue 209 

Attorney General and the State Lands Commission 213 

EBMUD Board Support 216 

Keeping Options Open 216 

Financial Support 217 

IV VARIETY OF ISSUES AT EBMUD 220 

Disinfection Process, 1997 220 

Recreation and Watershed Protection 222 

Lake Chabot 223 

Other Watersheds and Mountain Biking 225 

Grazing 226 

Camanche Reservoir 228 

Contract with Park District for Peace Officers 230 

Pump-back Scheme for Camanche, 1988 231 

Scientific Background from EBMUD Experts 235 

Value of Historical Records in Water Rights Issues 236 

The Penn Mine 238 

Historical Background 238 

Court Finds No Responsibility on Part of War Department 239 

EBMUD Acquires Land for Camanche Reservoir 241 

Attempts to Contain Mine Wastes 242 
Involvement of Regional Water Quality Control Board and 

Department of Fish and Game 244 

Committee to Save Mokelunme River v. EBMUD, 1993 247 

Public Policy Issue 253 

EPA s Involvement 255 

Wastewater Treatment 257 

Wet Weather Program 258 

Peripheral Canal Issue, 1982 261 

Variety in the Legal Department 265 

Divorce Case 265 
Criminal Matter Diverted to State Water Resources Control 

Board 267 

Solution 269 

Vision Comes from Board of Directors or General Manager? 272 

Decision to Enter Private Practice 277 



TAPE GUIDE 280 

APPENDIX 282 

INDEX 299 



PREFACE by Frank E. Howard 



For more than seventy years the General Counsel of the East Bay 
Municipal Utility District has faced issues that have shaped the legal 
history of California. The role of EBMUD attorneys in securing and 
protecting water rights has added important chapters in the annals of 
Wetsern water law. In addition to the accomplishments in water resource 
development and protection, the water district s attorneys have been 
involved in landmark decisions in many areas of public law, including 
eminent domain, taxation, land use planning, public contracts, and 
municipal financing. With the creation of the Special District and 
construction of wastewater treatment facilities, EBMUD lawyers began to 
face new legal issues in areas which subsequently became the environmental 
law development of the sixties. 

The period from 1953 to 1973 brought major annexations to the EBMUD 
service area. This triggered needs for major facility expansions and a 
supplemental water supply. The "flip side" of these needs were new legal 
challenges as well as increased state and federal regulatory requirements. 
The seventies and eighties brought new legal issues in public employment, 
municipal financing, and environmental control and challenge. 

In 1995, the district asked The Bancroft Library of the University of 
California, Berkeley, to conduct an oral history series of the General 
Counsel s Office. The Regional Oral History Office proposed to interview 
leading lawyers for the district to record and preserve their memories. 
The primary sources available for the project, Harold Raines, John B. 
Reilley, and Robert Maddow, enjoyed careers which spanned almost the entire 
seventy-year history of EBMUD. They were three of only four attorneys who 
led the legal department since its formation in 1923. By recording the 
personal recollections and anecdotal observations of those directly 
involved in the major legal and legislative contests of the district, the 
written records will be amplified and strengthened to the benefit of future 
managements, historians, and the public in general. 



Frank E. Howard 
Attorney at Law 



Walnut Creek, California 
April 11, 1997 



ii 

INTRODUCTION by Gayle B. Montgomery 



In those days, the district s lawyers were almost as far-ranging as its 
engineers, with court battles here, there, everywhere, and seemingly all at 
once. 

John Wesley Noble 

Its name was M.U.D. 

On the beginnings of the East Bay Municipal Utility District 



When Bob Maddow was named general counsel of EBMUD in 1984, there 
truly were "court battles here, there, everywhere, and seemingly all at 
once." It seemed that the District was under attack from every direction. 

I had met Maddow when I came to work as a public information officer 
for EBMUD the previous year, and immediately was struck by his knowledge of 
water law, water history, water tradition, and how all affected the 

District. 

By the time he left EBMUD a decade later, I would regard him as the 
conscience of the water District. 

He had a quiet unassuming manner that masked his inner strength. It 
was Maddow who showed me the ways of water law, and how the laws affect the 
Mokelumne River that is the lifeline of the East Bay Municipal Utility 
District, and how the river, in turn, affects the law. He had an unerring 
sense of what was the "right" thing to do, and never let expediency 
interfere with the course he chose. 

I came to see how fortunate the people of the East Bay were to have 
had the pioneer water planners who went to the Sierra to find the high- 
quality water that has meant so much to the people of Alameda and Contra 
Costa Counties, but I also realized that those early water providers would 
have been totally lost in the complex tangle of water regulation in the 
1980s and 1990s. It was then that I knew that while the vision of early 
leaders pointed EBMUD in the right direction, it would be the Bob Maddows 
who would make it work. 

There was little room for error in those years that I worked with 
General Counsel Maddow. There were more than 40 agencies in Sacramento 
County alone that were working to keep EBMUD from obtaining water from the 
American River through a contract signed with the Bureau of Reclamation in 
1970. He was a tireless leader in putting together the legal battle plan 
in hearings before the State Water Resources Control Board and later in 



ill 

Superior Court. His legal staff could match any public agency anywhere. 
His workdays often lasted late into the evening and his work week included 
weekends . 

Yet, he always had time and patience to explain complicated legal 
actions to a public information officer who had to go out in front of 
television cameras, or to enjoy a good political story with this former 
newspaperman. 

Bob Maddow is a water expert and a legal scholar, the kind of a man 
who sometimes is defined simply, but in the greatest sense, as a "pro." He 
never was ambivalent about where his duties lay, nor was there any doubt 
that he would complete whatever task he set about doing. But there is much 
more to him than that. Despite his devotion to his profession, he always 
found time for his family and his community. He always would work harder 
himself to make life easier for someone else. 

His strength and integrity is far greater than one has come to expect 
in public service, a strength he assuredly has carried into private law 
practice. 

I am proud to call Bob Maddow a long-time colleague and a trusted 
friend . 



Gayle B. Montgomery, 
former political editor, 
The Oakland Tribune 

December 1998 



IV 

INTERVIEW HISTORY by Germaine LaBerge 



The Regional Oral History Office (ROHO) has long been interested in 
California water issues. In 1991, the East Bay Municipal Utility District 
(EBMUD) funded a full life oral history with Walter McLean, a civil 
engineer of the district who specialized in water resources engineering. We 
were delighted then when a group of retired EBMUD attorneys, engineers, and 
managers, approached ROHO to suggest documenting the history of water 
rights litigation and legislation from the standpoint of EBMUD. The idea 
was to begin with interviews of Harold Raines, John B. Reilley, and Robert 
Maddow, all former general counsel of the district. The EBMUD Board of 
Directors accepted a proposal drafted by Frank Howard of the Friends of 
Western Water Law, and with the board s funding, we began to document the 
work of EBMUD s general counsel s office. Robert Maddow is the third and 
final interviewee in this series. 

A graduate of Stanford University (1964) and Hastings College of the 
Law (1967), Robert Maddow came to EBMUD in 1972, fresh from five years in 
the United States Air Force. In the oral history which follows, Maddow 
describes how then General Counsel Jack Reilley interviewed and offered him 
a job in the legal department --an amusing anecdote not recorded anywhere 
else in the annals of EBMUD. It was the beginning of a friendship and close 
collegial relationship, as Jack and Bob worked tirelessly in the interests 
of providing the highest quality water to the customers of the district. 
When Bob Maddow was appointed general counsel in 1984, the controversy over 
the rights to the American River water was heating up. His oral history 
documents the legal and environmental issues involved, including years-long 
litigation (EOF v. EBMUD) . Maddow also discusses how the district responded 
to drought, incorporated affirmative action policies in hiring, and oversaw 
safe recreational uses of the reservoirs. Throughout his tenure, Bob 
represented the East Bay Municipal Utility District with integrity, 
intelligence, perseverance, and that rarest of qualities --humour. 

Six interviews were recorded (twelve hours) from February to June 
1997, either at The Bancroft Library or at the Law Offices of Bold, 
Polisner, Maddow, Nelson & Judson in Walnut Creek. The tapes were 
transcribed and lightly edited at ROHO, and sent to the interviewee for his 
approval. Because his narrative was clear and eloquent, little editing was 
necessary. Careful and considerate, Bob spent time checking facts and 
expanding on his thoughts and descriptions. His additions and changes 
enrich the completed volume. 

In preparation for this interview , I consulted background material 
at the Water Resources Center Archives on the Berkeley campus; spoke with 
Bob s former colleagues; culled through files at the EBMUD Records Office 



at the Oakland headquarters. I prepared a draft outline of topicsone 
which Bob himself expanded with characteristic thought fulness and 
thoroughness. The resulting memoir follows. 

As I write this interview history, we are mourning the untimely death 
of Frank Howard (March 2003), a loss to all those who knew him. The 
Regional Oral History Office greatly appreciates the impetus Frank gave to 
this project, and the introduction written from the vantage point of a 
retired member of EBMUD s legal department. Many thanks to the East Bay 
Municipal Utility District for funding this series. And more thanks to 
Gayle Montgomery, former political editor of the Oakland Tribune, for the 
fine personal introduction to Bob Maddow s oral history. 

The Regional Oral History Office was established in 195A to augment 
through tape-recorded memoirs the Library s materials on the history of 
California and the West. Copies of all interviews are available for 
research use in The Bancroft Library and in the UCLA Department of Special 
Collections. The office is under the direction of Richard Candida Smith, 
and the administrative direction of Charles B. Faulhaber, The James D. Hart 
Director of The Bancroft Library, at the University of California, 
Berkeley. 



Germaine LaBerge, 
Interviewer /Editor 



April 2003 

Regional Oral History Office 

The Bancroft Library 

University of California, Berkeley 



vi 



Regional Oral History Office 
Room 486 The Bancroft Library 



University of California 
Berkeley, California 94720 



Your full name 



BIOGRAPHICAL INFORMATION 
(Please write clearly. Use black ink.) 

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Date of birth & j / I/ I l~j ^ _ Birthplace 



Father s full name 



Occupation (R.GT/&GA 



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Mother s full name 
Occupation 



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Occupation 
Your children 



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Where did you grow up? 
Present community 



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Occupation ( s ) 



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INTERVIEW WITH ROBERT MADDOW 



I CHILDHOOD, EDUCATION AND MILITARY SERVICE 

[Interview 1: February 3, 1997] ## : 

[The Bancroft Library and law offices of Bold, Polisner, Maddow, 
Nelson, and Judson] 



Parents and Sister 



LaBerge: This is February 3, 1997, and I m interviewing Robert Maddow. We 
always like to start from the very beginning, so why don t you 
tell me the circumstances of your birth? 

Maddow: I was born in May of 1943 in New Jersey. I guess that would make 
me a war [World War II] baby. My parents were both longtime 
residents of New Jersey. My father was actually born in New York 
and my mother in New Jersey. They were both the children of 
immigrant families, my father s family having come from Russia 
and my mother s family from Holland. 

LaBerge: Can you give me their names? 

Maddow: My father is Bernard Maddow; he has no middle name. He goes by 
Bernie. And my mother is Gertrude Smits Maddow; she goes by 
Trudy. They were both working in the New Jersey area during the 
war. My father was involved in aircraft instruments, bomb sights 



## This symbol indicates that a tape or tape segment has begun or 
ended. A guide to the tapes follows the transcript. 



and things like that, and his was a critical skill field during 
the war, and so he remained in the war industry as opposed to in 
the military service throughout the entire period of World War 
II. He before that had worked as a watch repairman; he worked 
for a company called Swartchild, which I can t spell. But he had 
been a salesman and had also worked at the work of repairing time 
pieces, and that s kind of how he developed the skills necessary 
for work with aircraft instruments. 

He continued with that line of work after World War II. In 
1946, my parents decided to leave the East and migrate West. 
They had a 1936 Dodge with which they pulled a trailer across the 
country. My sister would have been about seven at the time, and 
I turned three en route from New Jersey to Arizona, which was our 
ultimate destination. We settled there in Tucson, Arizona, in 
1946. 

LaBerge: You mentioned your sister; what s her name? 

Maddow: Her name is Cheryl. She s about four years older than I am. She 
got married right after high school. We lived in San Diego by 
this time, and during high school, she had started dating a 
fellow who was a little older, who was from a school nearby. 
While she was in high school, he was in effect finishing what we 
would today call a junior college program. They were married 
when she was just eighteen. She worked for many years as a 
letter carrier for the post office and eventually ended up quite 
a high official in the union with the post office, and now is 
employed actually by the AFL-CIO, but her work is with the 
American Red Cross. As a matter of fact, today she is one of the 
people involved in the disaster relief effort. She s up at 
Mather Air Force Base in Sacramento, where she s one of the 
disaster relief coordinators. 



Actually, her job is kind of between the labor movement and 
the Red Cross in regard to coordination of such things as blood 
drives and volunteer efforts, et cetera. So she has done a lot 
of very interesting things and has been out on every type of 
disaster imaginable. She has been in this area for the 



earthquake and the fire, and been to Sacramento twice for floods, 
and went to Kauai after the hurricane, and went to one of the-- 
I ve forgotten which one of the islands in the Caribbean after 
another hurricane, and she s just done a lot of interesting 
things like that. She s my only sibling. 



Growing up in Tucson 



LaBerge: Okay. And you came to Tucson when you were three, 
remember that? 



Do you 



Maddow: I remember bits and pieces about Tucson. I have very little 

recollection--! have essentially no recollection of New Jersey 
before we left, except very faint things about playing with my 
grandparents and those kinds of things, very faint memories. And 
then the family really kind of broke away when we went to 
Arizona, and so really that New Jersey stuff is all behind me. I 
remember little things about the first few years we lived in 
Arizona. My father s first job in the immediate postwar period, 
he went into watchmaking business, and he worked for a jeweler. 
He had a shop down on the old plaza in what was then the heart of 
Tucson; now Tucson has grown so large that you probably can t 
even find it any more. But it was right by the railroad depot, 
and I remember going down to my father s shop and being taken 
over to the area of the railroad depot where they were filming a 
movie called Fury with Barbara Stanwyck. And I still remember 
after every scene, I remember a man hollering, "Get Miss Stanwyck 
a drink!" [laughter] I don t remember any details other than 
that. 



But I also remember that my father worked with a wonderful 
family there, a man who had been in this country from Mexico not 
too many years and had a good little jewelry business there. He 
loved my father s capabilities, because my father understood 
watches and fine jewelry, and particularly knew how to deal with 
gold, and this man used to use my father to get involved with the 



purchases that he made. And some of these were made in Mexico, 
and it was all legal, there wasn t anything illicit going on; but 
what was interesting to me was that a couple of times, my family 
would all go with my father when we d go on these visits. And I 
remember going to a place that was actually hewed out of the side 
of a hill. It was a room it could be 110 degrees outside in. the 
streets of Nogales, but when you went to this place where this 
gold merchant had his supplies that he was selling to my father s 
employer, it was cool, because it was in solid rock. I was 
probably four at the time, but I can remember that room. It s a 
strange little thing that sticks with me. 

But we lived in Arizona then from 1946 to 1954. 
LaBerge: Can I back up a minute? 
Maddow: Of course. 



LaBerge: What caused your parents to go to Arizona? 

Maddow: My mother was suffering with asthma, and one of the suggestions 
made to her was that the desert might be better for her. In the 
long run, it turned out that it was not. She was one of those 
people for whom the desert was not the right answer, and ended up 
eight years later going to San Diego , and she s not had any 
asthma problems to speak of since she s been in San Diego. Which 
is a little bit out of the ordinary with regard to asthma, but 
apparently, the case is not totally unique. But that s what the 
experience was . 

My parents both wanted to get away from the New Jersey 
experience, I think. It was a big move for them, but something 
that I think they were really ready to make in 1946. So they had 
planned it for quite some time. In the immediate aftermath of 
the war, of course, a lot of the industries my father had worked 
at Bendix Industries, that s the wartime employer, and of course 
they scaled back a lot by 1946. So they knew what was coming, 
and they planned to make this move and purchased this car and 
trailer, and made the move. 



We moved in the trailer, and then shortly thereafter, my 
parents rented a home, an old red brick house on Columbus 
Boulevard in sort of north Tucson, not very far from Davis 
Monthan Air Force Base. I remember living on--Columbus Boulevard 
was a dirt road, and there were no real storm drains in that 
area, so every house had a little bridge over a drainage ditch to 
get to the house. Perhaps my first memory that relates to 
anything having to do with water was every year when it would 
rain in Tucson- -which was a big event- -you would get what was in 
effect a little flash flooding, because the drainage direction in 
our area was away from the air base, which had these huge 
concrete runways. And so we d get this big flash of water going 
by. 

But that s where I started elementary school. My sister 
went pretty much all through elementary school while we lived on 
Columbus, although she d started before, of course; she was seven 
years old when we made the move, but we went to- -golly, what was 
the name of that school? Davidson School. They had no 
kindergarten; I guess I was there in first, second, and third 
grades, and then my parents bought a home on the other side of 
town in a new subdivision called Mission Manor. It was called 
Mission because the property that the developer had purchased 
adjoined a portion of the Pima Indian reservation in the location 
where they have a mission that s very famous. It s called San 
Xavier del Bac [spells]. It used to be called the White Dove of 
the Desert, and it was very famous because it had two towers out 
in front, one of which had a dome and the other of which had a 
flat top. And the reason, by legend, for only one of the domes 
having been finished is that supposedly one of the Indians who 
was working on the first dome fell to his death, and so the 
Indians wouldn t go up and build another dome. But it s a 
magnificent mission, and it s still very much sort of a tourist 
attraction. 

We lived in the seventh house in this subdivision, seventh 
house to be finished. When we first moved there, we could see 
the mission out the back of our house, but a few months later, 



there were hundreds of houses between us and there, and there 
wasn t much of a view. 



I finished elementary school there, actually skipped a grade 
I guess there, so started off in the fourth grade and they moved 
me into the fifth. Just as I was finishing sixth grade and my 
sister finishing ninth grade, on the same day we got in the car 
and drove to San Diego and moved to San Diego. 

LaBerge: And was that also for your mother s health? 

Maddow: Primarily. The last couple of years that we were there, she 

really struggled with the asthma, to the point where there were 
times when she really had trouble breathing, had to take 
injections of adrenaline. She had to learn to inject herself at 
one point; my father, of course, would also be able to do it. 
She was really struggling from a health perspective . 

My father was working back in the aerospace industrywe 
didn t call it that in those days; the airplane industry in those 
days. He was working at a company called Grand Central, which 
was doing instrument work on jet bombers for the U.S. Air Force, 
and so all these great big bombers called B-47s would come into 
the Tucson Municipal Airport, which is where Grand Central had 
. its location. It was right across the street from the place I 
went to school. My father would work on their instrumentation. 

But in 1953 in the summer, we went out to San Diego for a 
vacation, and my mother really enjoyed and thrived being in that 
beach weather, and -so they began immediately starting to try and 
figure a way to make the move, and my father began to look into 
job opportunities. My mother at this time was working at Hughes 
Aircraft. One thing led to another, and my father was able to 
line up a job at Convair in San Diego, which was a big defense 
company. 

And so we moved to San Diego in 1954, and a few months later 
moved to a community called Pacific Beach, which is just north of 
the Mission Bay area, just south of La Jolla in San Diego. My 



parents have lived they lived there for I guess seven years, and 
then in 1961 while I was away at college, they moved to an area 
just east of there, just up the hill from Mission Bay, and 
they re still there. They re both eighty-one years old now. 



Childhood Pastimes. Interests. Hobbies 



LaBerge: Wow. Tell me what kinds of things you liked to do as a boy. 

Maddow: Play baseball. I can remember in the summer when we lived in the 
Mission Manor subdivision, so that would have been I guess like 
three summers there, the other kids in the neighborhood and I 
would be outside all day, every day, fooling around, usually 
involving playing baseball. We didn t have a real field, but we 
kind of cleared off an area and put all the rocks over to the 
side, and the subdivider had his corporation yard right near 
there and they let us do it. We would go out there and play 
every variety of baseball that you could with a small number of 
kids. 

I remember also that my sister, who was a wonderful athlete, 
she was a little older than all the boys who I hung around with. 
She was a real tomboy; she used to give us a very hard time. She 
taught herself one summer to be a switch-hitter, and she prided 
herself on the fact that she could hit the ball farther left- 
handed than any of we little twerps could right-handed; we were 
all right-handed. 

I also remember sort of wide-open spaces, because in south 
Tucson where we lived, there had not been a lot of development 
yet, and a kid could get on a bike and go forever on dirt roads, 
and sort of be out in the middle of the desert. So we learned 
what it was like to be out there. You had a BB gun, and you d 
point at things, and there were always kids who would have 
firecrackers, and none of us everwe just kind of grew up with 



8 

them. They weren t something awful, because we had learned to be 
. careful and nobody ever hurt themselves . 

There was sort of an eroded- -back then we called it an 
arroyo; I don t know what you d call it out herelike a creekbed 
where when it rained, you could get a lot of water, but then it 
would just kind of peter out in the desert. But it left these 
eroded gullies and things like that, and for kids who wanted to 
roam around out in the desert, that was fun. It was like having 
your own little canyons, little forts and things like that. So 
as little kids, we always did that. 

I remember all summer running around in shorts and shoes and 
getting just baked in the sun. We never thoughtnone of us 
thought to wear .a hat, and nobody wore sunglasses or anything 
like that. 

In 1954 when we moved to San Diego, we went to see a movie. 
I couldn t read the credits, and my mother immediately said, 
"There s something wrong with your eyes," took me to an eye 
doctor, and he said, "You really do have a nearsightedness 
problem." He began to talk to me and to my mother about it, and 
he became convinced that my nearsightedness was reinforced or 
exacerbated by being outside all day in the sun and probably 
squinting. He told me that what I had been doing as a little kid 
probably hastened the time I would have to start wearing glasses, 
so there I was at age eleven, having to wear my first pair of 
glasses because of too much sunshine as a nine-year-old. 

My father used to like to get in the car and drive someplace 
on the weekend, and in those days I used to hate it, and now, I 
look back on it and I still remember some of the things that we 
would go to visit in Arizona, which is a wonderful place to go 
and poke around. And now, I ve inherited that trait. My father 
never goes anywhere any more; he s very reclusive. But I love to 
get in the car and just go someplace, and that s one of the 
advantages of living here, is because within four hours, you have 
so many interesting places. 



But we would go to the old copper mining regions, or to the 
areas where there were Indian ruins, or out to sometimes we d go 
pretty great distances. We went to the Grand Canyon, and to Oak 
Creek Canyon, which I still remember when I was a little kid, and 
I didn t go back again until last year. And I have to say, my 
memories were better than my vision of it this time. But I 
remember doing things like that. We used to go up into the 
mountains right near Tucson to a place called Sabino Canyon 
[ spells ] , which was an old place that the Indians had used during 
the summers, because there was always water there. Sabino Canyon 
had a recreation area that I remember fairly vividly from when I 
was a little kid. You could get there in a couple of hours 
drive, and in the baking heat of Tucson summers, it was one of 
the few places you could go for relief. Nobody had air 
conditioners in those days. If you were lucky, you had a swamp 
cooler, an evaporative cooler, but they never really did the job. 
Probably contributed to my mother s asthma, as a matter of fact; 
that s what we were told. 



But anyway, those were the kinds of things that we did. 
I also was very bookish. 
LaBerge: That s what I wondered, if you liked to read. 

Maddow: I did. By the time I had finished junior high school, I think I 
had read every book in the San Diego Public Library with the 
Dewey Decimal System number of 917.54, which means it was about 
World War II. I had grown up with both parents working for 
defense contractors, I saw airplanes all the time in Tucson. My 
father worked on B-47s. Every B-47 ever made flew right over my 
sixth-grade classroom at an altitude of about 400 feet or 
something. And for a kid who was fascinated with airplanes, 
Tucson was a wonderful place, because Davis Monthan Air Force 
Base was kind of the graveyard for the thousands of military 
planes that were no longer needed after the war. Many of them 
were just stored, and then they had places where they sort of, I 
don t know, salvaged parts of them and scrapped the rest. And so 



10 

there were always airplanes flying around, and that kind of 
became a fascination for me. 

And then, of course, we moved to San Diego, and on the 
weekends, the navy would have open house on ships. My dad got 
interested in that, and then I could just take the bus down 
there. So I got interested in that. 

So I began to read about the war, and read everything I 
could get my hands on in those days. I don t know why, but that 
just was a point of fascination for me. 



LaBerge: And then you later joined the air force, 
to do with that? 



Did that have anything 



Maddow: No, and that s another story, which I ll be happy to tell you. 
But basically, what I was trying to do when I joined the air 
force, by that time, I had graduated from law school, and I 
didn t really want to carry a rifle in the Mekong Delta, so I 
thought that it was an alternative to being drafted. I was able 
to get into an officer training program, and that s how I ended 
up with the air force. But I never flew anything more exotic 
than a desk in the air force. [laughter] 

The other fascination for me in those days, I have to say, 
was baseball. I loved everything about baseball. Tucson was the 
spring training home of the Cleveland Indians . There was a 
ballpark there called Hy Corbett Field [spells]. It s still 
there; it s still where the Indians train. And we used to go 
there sometimes in the summer. I still remember my sister being 
stepped on by Lou Boudreau at the time he was both the manager 
and the shortstop for the Cleveland Indians. 

But she formed a great fascination for the New York Giants 
who trained up the road in Phoenix and used to come down and play 
the Indians, and she really liked the Giants. And so I, of 
course, had to become a Brooklyn Dodgers fan, just because 
sibling rivalries and all that. So we used to talk about and 
argue about baseball all the time. And we played it a lot. 



11 

And I used to like to listen to the radio broadcasts of the 
Tucson Cowboys, who were the minor league team that played in Hy 
Corbett during most of the year. I can still remember listening 
to those broadcasts, which in those days, of course, were 
interesting because the announcer didn t have a fancy press box 
or something; he pretty much sat up at the top of the stadium. 
If we went to the game, I can remember seeing where he sat. He 
had a little box around him; he wasn t completely out in the 
open. But he was really part of the game, so you got all that 
noise and everything. 

But then when the team would go to play in another city, 
they couldn t afford to send the radio announcer, so he would 
stay back in Tucson and get the wire service or ticker tape 
accounts of what was going on in the game, and he would do what 
was called a re-creation. They had a tape or something of crowd 
noise which he could turn up if he thought he should, and to make 
the sound of the bat and the ball I think he hit two sticks 
together or something. And I can remember listening to re 
created games when I was a little kid and thinking that that was 
just great, to think that somebody could be giving us that 
wonderful word picture when they weren t even there. 

But those were big memories, big sort of focus points for 
me, being a kid in Arizona, I guess. 



Junior High and High School in San Diego 



LaBerge: And then when you were in San Diego, did you play in school, or 
did I read that you played basketball? 

Maddow: I played a little baseball and a little basketball. I wasn t 

very good at either one. The only high school sport I played was 
basketball. I fooled around with the track team for a couple of 
years, but I wasn t really all that interested, but I did it, 
because I had a basketball coach who thought it would be a good 



12 

idea for all of us to do that for conditioning. I wasn t nearly 
good enough to .play on our high school baseball team; we had an 
excellent team in those days, and I was a cut below all those 
fellows. But I played in kind of an American Legion program, and 
Colt League, and things like that. I wasn t very good, but I 
hung in there, and I had a lot of fun. I hung around with the 
guys with whom I was friendly. We all were involved in that. 

One of our big attractions in junior high school in 
particular was basketball, though. There was a recreation center 
just adjacent to our junior high school, where four or five of my 
junior high classmates and I used to spend seems like every 
waking hour. We just played basketball a whole lot there, and 
once again, we weren t very good, but we were all about the same 
degree of ability or lack of ability. And had a lot of fun doing 
that. It was just an activity we all got really into. 

Several of us began to play tennis in those days. There 
were three other guys that I played a fair amount of tennis one 
of them actually got to be pretty good. He was trying to get as 
good as he could, because there was a girl in our class who was a 
nationally ranked tennis player who actually won Wimbledon 
singles in 1962, Karen Hantze. This guy just kind of doted on 
her; she didn t have very much to do with him, but he figured 
that maybe if he got good enough, some day she d notice him. He 
never quite got that good. [laughter] It s funny how those 
things come back. 

I had a kind of a flashback to those days and that old gym 
the other day. My wife and I were going to a movie in Walnut 
Creek, and we went to Mel s Diner to have a hamburger beforehand, 
and up on the wall of Mel s Diner, they have a bunch of signs 
from old products from the forties and fifties and sixties. A 
lot of them were for a soft drink called Grapette, and I can 
remember drinking Grapette by the bottle when we were playing 
basketball in the gym. You d pay a dime, and it was one of those 
old Coke machines with the glass bottles hanging up by their 
neck, and you d slide them out. It was always a challenge to see 
if you could get out two for one dime; you never could. But I 



13 

can remember gallons of Grapette and many hours of basketball, 
and my mother going nuts whenever I d break my glasses playing 
basketball, which was a frequent occurrence. But those were the 
San Diego was a wonderful place to grow up, because we had a 
beach, we had Mission Bay, and a lot of activities that were safe 
and easily accessible. I enjoyed those years of junior high 
school and high school very much. 



LaBerge: Did you have any favorite school subjects? 
school? 



Or did you like 



Maddow: I did like school, and I was a good student, and I got involved 
in a lot of things. And you ll laugh when you hear this, and 
maybe I m saying it more in hindsight than anything else, but one 
of the classes that probably meant the most to me in looking back 
then in terms of forming my study habits, was Latin. I took 
Latin fromthere was a brother and sister teaching team at that 
school, Miss Shepherd and Mr. Shepherd, both spinsters, both old, 
very old-fashionedthey almost sounded like they were English 
but they weren t, but they had this very almost stentorian style 
of speaking. I took Latin from Miss Shepherd and it taught me 
English which I took from Mr. Shepherd. I learned something 
about how English works by studying Latin. I learned that I 
really had to study. In hindsight, it was very useful. And yet, 
I also remember funny things about it and all. But that had a 
big impact on me. 

I had to work hard in mathematics, and I thought I was good 
at it, but I wasn t as good as I thought. [laughter] But I did 
enjoy in those days, I thought I was enjoying math. They had 
good math teachers, and I think that was a reflection of them 
more than it was of my abilities or anything. 

I have positive recollections of my science classes in both 
junior high school and high school, and particularly in high 
school my chemistry class from Miss Perry. I really enjoyed the 
chemistry program, and I even went one summer and took an organic 
chemistry laboratory, where I worked all summer on a project 
involving trying to produce plastics . I remember we had to work 



14 

with a lot of acid. The laboratory tables hit me about mid- 
thigh, and every pair of pants I owned had holes in it right 
there from the acid that we one way or another would splatter on 
the laboratory table. 

II 

Maddow: I was president of my class in my junior and senior year. And I 
worked pretty hard at that. I was also involved in a service 
club called the Key Club, which was kind of a scholastic version 
of Kiwanis. The Kiwanis were a very important service 
organization in our community. Frankly, the kids who were kind 
of the leaders of our school became members of the Key Club . We 
did a lot of things together, activities involving school and 
things outside the school. I remember we had a huge canned food 
drive each year, and we ended up taking these two very large 
truckloads of canned food down to Mexico, down to Tijuana. This 
was in my junior year- -we did it both my junior year and my 
senior year. 

In my junior year, I remember it was this rainy, rainy day, 
being in the back of this truck and seeing these kids from 
Tijuana, many of whom had no shoes, and Tijuana was pretty sad 
in those days. It s even sadder now. But that was a real 
education for a lot of us. 

And those Key Club things were useful in terms of beginning 
to develop a kind of a service ethic, because when you re in high 
school, you re interested in what s going on around you, and you 
look like one of the crowd, and is the girl you re interested in 
going to pay any attention to you that week or whatever. To have 
something like the Key Club that gets you out of that mold and 
says, "Hey, there s another world out there that you ought to be 
thinking about," that was very useful, I thought. 

And then finally, one year I got involved in the debate club 
or society, and our topic for that year was foreign aid. We had 
to go off and debate with students from other schools and all. 
Those of us who were involved in debate went off and participated 



15 

in a model United Nations out at San Diego State College- -now I 
guess it s San Diego State University. Things like that began to 
become a part of my life when I was in high school. 

It was a pretty diverse existence. I was young, because I 
had skipped a grade. I was sort of one of the people who I guess 
became one of the leaders of 

LaBerge: Well, I guess, if you were president two years in a row, and-- 

Maddow: Maybe it was because nobody else wanted to do it. That s not 

quite true, because there were always elections and that sort of 
thing. But I don t know. I think I had my head screwed on 
reasonably decently well, and I guess was less of a threat than 
the other guy or some such thing, I don t know. 



Influences 



LaBerge: Any influences? Uncles, aunts, teachers, your sister? 

Maddow: Well, uncles and aunts not so much, because we were the only ones 
in the family who had gone West. For a while when we lived up in 
Tucson, my grandfather lived with us, but that wasn t too many 
years. I don t remember--! remember him as a strong, domineering 
grandparent, but I don t remember many details beyond that. I 
can t say I really had a closeness to any of my grandparents. 

In terms of influences when I was going through in 
particular in the junior high and high school years, there were 
some people who had influences on me, and it s quite a range. 
There were coaches. I really had a great deal of admiration for 
some of the coaches I knew. There were business people, because 
through the Key Club or through parents of people I went to 
school with, I got to know some of the business people in town. 
For example, one of my friends was the son of a man who was an 
executive with the telephone company, and he was a guy who just 



16 

had a way of always making time for young people. That was for 
his own son, but also for young people in general. I remember 

thinking that that made him a pretty special guy. That was Mr. 
Taylor. 

And then there were a couple of families that I had gotten 
to know through junior high school, but as high school students, 
we went off to different high schools, and yet I stayed fairly 
close to some of those families. There was a fellow who I stayed 
friends with even though we were in different schools . His 
father, whose name was Ed Seipel [spells] he s dead now but he 
was a real a person with very high ethical and moral standards 
who was somebody that kids kind of gravitated around, and that I 
always liked to be around Mr. Seipel. He worked for Bekins 
Moving Company.- I mean, he wasn t a mover and shaker or anything 
like thatoh, bad choice of words. [laughter] But I mean, he 
wasn t a captain of industry or anything like that; he was just 
an ordinary guy, didn t make very much money. But he was a real 
special guy, and I remember him very vividly. 

And then through high school, I became close friends with a 
fellow named John Wester who had grown up in Alaska. His father 
was. with a company that owned a big hotel up there, and then the 
hotel got bought out by a larger company and they moved him down 
to San Diego. John s father was he didn t say very much, but 
you just knew that when he spoke, you needed to listen, because 
here was a guy who had achieved a great deal in his life in a 
number of ways, and he was sort of stern and unapproachable, but 
he wasn t tough on the kids, either his own kids or the friends 
of his kids. He wasn t real outgoing like Mr. Taylor was, but 
when he talked to us, when we were at their house or something 
and we were at their house a lot, because they had a pool; they 
were the only people we knew who had a swimming pool- -you 
listened to Mr. Wester. If he started talking to you about going 
off to college and getting an education and what you should be 
thinking about in that regard, you listened. Because Mr. Wester, 
he probably knew some things . 



17 

So people like that who I remember vividly. But just as 
vividly, perhaps even more vividly, I remember a teacher. A math 
teacher named Mr. Stout. One of my best friends in those days 
was a girl named Julie Eiland, and Julie s older brother Mike had 
been a classmate of my sister s. Both my sister and Mike had had 
Mr. Stout, and then Julie and I came along three years later and 
had Mr. Stout. He was a Southerner; he had a real kind of a 
drawl in the way he talked. He was a pretty good math teacher. 
He was a nice guy, and we all kind of looked up to him. We 
always knew that if you wereif the kids were out knocking 
around on a Friday night and somebody had a flat tire or 
something, we all knew where Mr. Stout lived, and he d help. He 
was the kind of guy who, if kids needed somebody to talk to, they 
could always go and talk to Mr. Stout. And if you just wanted to 
go and talk to him because he was fun to talk to, that was okay 
too. I remember people like that very vividly. 



College Choices 



LaBerge: How did you decide to go to Stanford, and where else did you 
apply? Did you always know you were going to go to college? 

Maddow: Pretty much. See, my sister got married right out of high 

school. She was very bright, and probably made a mistake in 
getting married as young as she did, in hindsight. I mean, she 
would say that; I m not saying that. She d say that, because 
there were a lot of things beyond what she did in her lifeshe s 
had a good life. She s divorced now, she has two grown kids and 
three grandchildren. She s done wonderful things in her life, 
done a lot of interesting things. But I think that she probably 
feels that her horizons were smaller than they could have been, 
had she not married as young as she did. 

In my case, it was just--I was going to college. I mean, 
there just wasn t too much doubt about it. 



18 
LaBerge: In your mindi and in your parents ? 

Maddow: I think^so. Certainly in mine, and I think my parents had a high 
expectation, let me put it that way. So when I would talk about 
going to college, there really wasn t much question. 

In terms of going to Stanford or other places, we had gone 
on a vacation up towards the north, and I d seen Stanford. I 
didn t know anybody there really. I guess I did know one guy 
who d gone there, but I didn t- -there wasn t anybody in my family 
through whom I really learned very much about colleges. But I d 
done a lot of reading, and I d done a lot of talking to students 
from years ahead of me in high school, and to faculty people, and 
I had decided that Stanford was probably the best school in 
California, and so I figured, by golly, I m going to take a shot 
at that. 



And somebody, one of my teachers, I think, told me I think 
it was Mr. Stout, now that I think about it- -who said, "Well, one 
of the things you ought to think about is aiming at the level of 
school you think would be your ideal, and applying there. And 
aiming at the level of school that you think is right where 
you re probably best situated, and making sure you have a 
fallback." And so my ideal was Stanford. The place to which I 
thought in those days that I was perfectly focused was this 
place, Berkeley. And my fallback was San Diego State. 

And I still remember as a senior in high school how many 
kids would sign other kids yearbooks--we called them annuals in 
those dayssign somebody else s annual with "SYAS" "See you at 
State." [laughter] Most of the kids from my class who went to 
college I think did go to State. 

But I decided that Stanford was an ideal, and you see, this 
was the late fifties. People were starting to set goals for 
America that I kind of latched onto, like the space program, 
which was the particular thing that had kind of caught my 
attention by this time. We were being challenged, the San Diego 
industries were so focused. Convair had created what was called- 



19 

-no, wait a minute --Convair became General Dynamics, and General 
Dynamics had this program of building rockets. They built 
something called the Atlas, which was a guided missile, an ICBM. 
But it also became a booster for satellites. 

LaBerge: By this time, did your dad work for General Dynamics? 

Maddow: Yes, but he was in the Convair division, right. And my mother 
also worked there as a secretary in their headquarters. 

But everybody was thinking about space. It was the late 
fifties, and people were thinking about space, what led up to 
Sputnik and all this kind of stuff. This was before John Kennedy 
issued the challenges to us and all that. But I decided that, by 
golly, one of the things that I could do would be to become an 
engineer and work in the missiles and space type things, or in 
aeronautics, something like that. So I had decided probably in 
the beginning of my junior year that I was going to shoot for a 
school where I thought I could get a really good education and 
the opportunity to really do something in those areas, space 
programs, et cetera. So when I was going off to college, I 
wanted to be an engineer, beat the Russians to the moon and all 
these things. And Stanford had a wonderful program. Of course, 
so did Berkeley. 



Stanford University. 1960-1964 



Maddow: So I applied to both, and was accepted to Berkeley before I was 
accepted at Stanford. I was all primed and ready to go to 
Berkeley until the Stanford thing came along, and you can t turn 
Stanford down. That was the way I looked at it, anyway. Now, my 
parents blinked, of course, because-- 

LaBerge: The price? 



20 

Maddow: Yes. And they made just enough money--! mean, it was the same 

then as it is now, it s just that orders of magnitude difference. 
They made just enough money so I couldn t qualify for financial 
aid, and not enough money to be able to afford to send me to 
Stanford, so they really, they scraped for me to be able to go 
there. I still remember that my freshman year, the tuition was 
$335 a quarter. And by the time I graduated, it had more than 
tripled. So we were paying tuition of like $1,200 a quarter or 
something like that. My daughter went to Stanford thirty years 
later; I don t even want to think about what the numbers were 
then. [laughter] But it was an incredible sacrifice for my 
parents, and something for which I wasn t very grateful in those 
days, because I was a typical immortal teenager who only thinks 
about himself. And yet, looking back on it now, it s the sort of 
i thing that parents do, and I didn t have an appreciation for it 
until much later. Maybe I didn t have a full appreciation for it 
until I became a parent and had kids going to college and all of 
that. 



But when you talk about the people who really have an 
influence on you as a young person, obviously, your parents have 
this enormous influence. And in my case, it was a positive 
influence, but it wasn t like some parents where you re following 
in the footsteps of your father or your uncle or your mother or 
your aunt, who went off to some college or whatever. That wasn t 
a part of my parents experience. My parents experience was one 
of hard work, and commitment to trying to see things better for 
their kids, et cetera. 

After my sister got married, I guess to some degree they 
focused a lot of that on me, and that s why they were willing to 
sacrifice as they did, so that I could do what I d kind of set 
out to do. If I had to do it all over again, I would have been a 
much more grateful son at the time than I was . I kind of 
distanced myself from them. That was a mistake. 



LaBerge: I think everybody looks back and sees that, 
growing up. 



It s a part of 



21 

Maddow: I think so. It s a part of breaking away which we all have to 

do, but there would have been a more graceful way to do it and a 
more thoughtful way to do it, and I know that now. I think my 
own kids, I think both of my kids in their own way did a better 
job of it than I did, but part of it I think is because they may 
have absorbed a little something from me and Elaine about that. 
So it s funny, it s a funny thing. 

Anyway, now we ve got me-- 
LaBerge: Right. But you didn t become an engineer. What happened? 

Maddow: No. Well, you remember I said I wasn t as good in mathematics as 
I thought I was? The differential equation became my grade 
equalizer. I did not do very well in mathematics when I got to 
Stanford. I just--I really thought I was cut out to do the fast- 
track stuff there, and if anything, I should have enrolled in the 
slower track of math because the fast track kind of ate me up and 
got me down and all those things . So my freshman year was not a 
very good year, largely because I kept thinking to myself, I can 
do this, I can do this. And I couldn t. [laughs] I struggled 
with mathematics in my freshman year, and finally after being 
beat upon by an academic advisor, I realized that I needed to 
find something else to do. 

So what I did instead was to, for my sophomore year, 1 was 
undeclared, and at the end of my sophomore year, I declared a 
major in political science. And the reason that I chose 
political science was that by that time, the end of my sophomore 
year, I had met enough course requirements to graduate in 
political science in four years and leave myself a lot of 
opportunity to take classes in the History Department and in the 
English Department, as well as political science stuff, and also 
to throw in a couple of electives. Interestingly enough, what I 
threw in were two geology classes and a theater class. Now, if 
you ask me to explain that, I don t know that I can. 

But I declared political science at the end of my sophomore 
year. I m glad that I did, because it gave me an opportunity to 



22 

do a lot of reading about government andI ve never been as 
interested in sort of the politics side of political science as 
much as I am the government side, the public policy side. And I 
began to get sort of a grounding in that at that time. I read a 
lot of John Stuart Mill and Edmund Burke. 

LaBerge: Did you have any idea of going on to law school at that time, or 
were you just ? 

Maddow: I was thinking about it. I began to think about it seriously at 
about the time I began to look at the possibility of declaring a 
major in political science or history or English. I was pretty 
sure I wanted to go on into a graduate program, and the law 
seemed a logical one, although I really didn t have any role 
model, really. There was one fellow who lived across the hall 
from me in a dormitory who to some degree was a little bit of a 
mentor. He was a history major. He was a year ahead of me, and 
he was a real hyperactive kind of guy, and much more studious and 
bookish than I was in those days. But he and I talked a lot 
about law school as a possibility. He ended up choosing to not 
go to law school and now, in fact, is a dean at Stanford. 

LaBerge: What s his name? 

Maddow: Larry Horton. Larry and I talked about law as a possibility. 

For a short while in my junior year, my academic advisor was 
a man named Allard Lowenstein, who later became a congressman and 
was very much involved in the antiwar movement and the civil 
rights movement. 

LaBerge: Was he a congressman from New York? 



Maddow: Yes. He was later murdered by a guy who lived in our dormitory 
and whose name has just escaped me, a guy who was involved with 
the summer in Mississippi what was his name? Oh, golly, I just 
can t think of his name. A fellow who was a year behind me or 
two years behind me, who just cracked at some point and ended up 
killing Al Lowenstein. 



23 

Anyway, Lowenstein--he had to be an academic advisor because 
everybody had those responsibilities, they had to go and advise 
these undergraduates . And I don t think he liked doing it. I 
think what he liked doing was organizing students to go off and 
do things, like the summer in Mississippi with the voter 
registration stuff and all of that, or later all the antiwar 
things that he did, that sort of thing. That s what he was 
really good at. But when he sat down to talk to you about your 
academics, he expected you to tell him, and he could either say 
yes or no. 

Well, I had too many questions, and I can remember two or 
three different times going in and talking to him and feeling as 
though he was kind of harumphing me, you know. But actually, he 
and I did have conversations about law school and what it meant 
for somebody who had no clearcut path ahead of him. He 
recommended it to me at least in part because it can be a basis 
for doing a lot of different things. Up until I spoke to him, I 
think I viewed law as a narrower field than perhaps I might have. 
One of the things I can remember him talking to me about was 
people in fields other than the legal profession who were lawyers 
and for whom the legal education was a part of their foundation, 
and it wasn t necessarilythey weren t practicing lawyers. So 
my experience with him, even though it was short, and it was a 
lot different from a lot of other people who knew him at 
Stanford, my experience with him was valuable. Helped be a 
shaper, I guess I d say. 

LaBerge: Was he also one of your professors? 

Maddow: Let me think. I think I took like a two-unit class or something 
like that from him, and I can t remember what it was now. I 
should remember those things better than I do. But I really only 
knew him through this advisory role. I had a ten-week class that 
was some kind of a--it wasn t a senior colloquium, it was a-- 
something about American political thought in those days, but I 
can t remember what it was. 1 barely remember it, so it 
obviously wasn t anything that really inspired me. 



24 

I actually took more inspiration, I think, about things like 
public service and that sort of thing from some of the history 
professors I had. Gordon Craig was this wonderful professor of 
European history, and Thomas Bailey, and some of these people who 
just made history sing. With the modern history I read about 
World War II, for example, and I had done a fair amount of 
American history work, I think I got a bit of a grounding in how 
important history is. 

One of the reasons why I was so interested in this oral 
history program is that I believe that institutions like East Bay 
MOD, for example, need to understand their history, because the 
role that they play- -and this can be true of so many different 
types of institutions --the role that they play is so much a 
function of how they got to the position that they re in in their 
particular niche and their particular segment of the society. 
You need to understand that history to really be able to 
understand where the institution is going to go. 

That s the part of public policy that I like: how do you 
take what you can learn from your past and use it to help you 
learn where you re going in the future? People like Jack Reilley 
and Harold Raines and Walter McLean and people from their era can 
really provide sort of a polestar, and I hope I can maybe 
contribute some of that too. 



Hastines College of the Law. 1964-1967 



LaBerge: Where else did you apply to law school? 

Maddow: Boalt Hall. You know, I think I applied to Harvard. I don t 
know why, but I think I applied there. 

LaBerge: Well, your aiming high at Stanford, you might as well-- 



25 

Maddow: My grade point at Stanford was a little under 3.0 when I 

graduated, so I didn t have much chance of getting into Harvard. 
Hastings in those days--I don t know how Hastings admissions are 
right now; I don t think they ve changed all that much. But 
Hastings College of the Law would take many more students. They 
would take a chance on many more students than some of the other 
law schools. But half the people didn t survive the first year. 
And so by the time I was applying to law school, I had managed to 
muck up my college transcript enough by staying in mathematics 
too long and kind of not knowing where I was really headed so 
that I wasn t going to be able to qualify academically for places 
like Harvard Law School and Boalt Hall- -oh, Stanford Law School, 
I applied to Stanford also. I think I actually made a waiting 
list there. 

But Hastings was a place that I thought would be a good 
place for me, because I loved San Francisco by that time, and it 
was right downtown. It was a very challenging place, and I knew 
I needed that. I knew I needed that structure. The threat of 
half the people flunking out was enough to provide me the 
motivation I thought I needed. So I was really pleased to be 
able to go to Hastings. 

Looking back on it now, if I had to do it all over again 
knowing what I know now, I would have gone to Hastings, but I 
would have gone at it a little differently. I wasn t quite sure 
where in the law I wanted to head, and one of the reasons why I 
had that uncertainty was that so did everybody in our class, 
which was almost all men; there were almost no women in our 
class. I remember it was something like four or six or something 
like that out of several hundred graduated. Now I think it s 52 
percent women or something like that. But this was the era of 
Vietnam, and I was in the last year, next to last year of the 
student deferment that would keep you from being drafted out of 
school, and we just had that hanging over our heads. So it was 
hard to focus on what I wanted to do with the law when I was so 
sure that as soon as I finished with law school, either because I 
flunked our or dropped out or graduated, I was going to have to 
do something that was going to involve the military. I just knew 



26 

it. It was either going to have to be military or an alternative 
to the military. 

I applied to the FBI, I applied to the coast guard, every 
reserve .program that came along. Two of my roommates and I 
stayed up all night at Hamilton Field trying to get into the 
small number of people who got accepted into a national guard or 
an air force reserve unit or something that was up there. I 
think there were a couple hundred men who stayed up all night out 
there, trying to get their name on this list. So I wasn t really 
thinking about, What am I going to do after law school? I was 
thinking- -other than with the military. I wasn t thinking about 
what kind of law I was going to practice or anything like that, 
because Vietnam was just this incredible brooding presence for 
all of us. 

So when I finished law school, I knew I was headed for the 
military. I actually had been accepted to officer training 
school while I was studying for the bar- -actually, before I 
graduated, I guess, and then studied for the bar. Took the bar 
in August, and went off to the air force at the end of September. 
Found out while I was in officer training school that I passed 
the bar. So everything kind of ran together there. 



Jobs During Student Years 



LaBerge: I forgot to ask you, and I didn t ask you on the first outline: 
did you have summer jobs, or did you work on campus? 

Maddow: I did a number of different things. In high school, I really 
didn t have much other than sort of odd jobs. I mentioned Ed 
Seipel. Ed had a friend who had a construction company, and he 
used to hire Ed s son Jimmy and our other friend Phil and me to 
do odd jobs. For example 



27 

LaBerge: Okay, he was a plumbing and heating contractor. 

Maddow: And one year, he foreclosed on a mechanic s lien and ended up 

owning an ice skating rink that was in fairly decrepit shape. He 
hired me and Jimmy Seipel and Phil Crabtree to go in and redo not 
the plumbing and heating part of it, because he d already done 
that, but for example, the r,ail around the ice skating rink that 
gets all torn up from ice skates and all that, and the rubber 
tile in the areas where people change. We redid the whole inside 
of the place, and then one day he came in with a paint sprayer 
and said, "Any of you know how to use a paint sprayer?" I said, 
"Yes, I think I do." And he tested me out and figured out that 
we knew how to paint well enough, so he let us paint the inside 
of this ugly old ice skating rink. We did things like that. 

Then when I was in college, I alternatively went to summer 
school or worked at sort of odd different kinds of jobs. One 
summer I worked for the Los Angeles Flood Control District, I. 
guess it was, L.A. County Flood Control District, working on just 
physical work, construction-type work, and clearing rights of way 
and things like that, pouring a little concrete, digging lots of 
things, hoeing weeds --you name it, if it was physical labor, we 
did it. 



One summer I went to summer school and also worked in a 
theatre which was a theatre in the round, a place called Circle 
Arts in San Diego. It was the same sort of thing as Circle Star 
up here. They did these Broadway musicals in the round, and I 
worked as an usher, and occasionally they d have us help with 
carrying props, although not much of that, or building things or 
whatever, and I loved that. It was really fun; I thoroughly 
enjoyed that theater job. 

One summer, I think when I was in law school, just before 
the finals in my second year, I came down with mononucleosis, and 
I was really wiped out. I was able to take all but one of my 
finals, but that summer, I was not in very good shape for the 
beginning of the summer. But towards the end of the summer, 
actually like the last couple of months , I went to some temporary 



28 

agency or something. The first job they sent me out on was to 
load hundred-pound sacks of rice in a truck, and here I was a 
skinny little kid who d just had mono; that didn t work too well. 
Fortunately, there was another guy, and the two of us did that. 

But then the next day, they sent me out to thisactually, 
in these days it was called General Atomics. It was another part 
of the General Dynamics family. And they had what they called a 
high explosives testing facility, HEX. General Atomics, among 
other things, I think, built something that had to do with 
nuclear weapons I mean, because General Dynamics, Conyair 
Astronautics and whatever all the companies were called, they 
built intercontinental ballistic missiles. And this one part of 
the company, I think, did something with regard to the fuses or 
something, and they blew things up. They had these weird cameras 
where they could take an enormous number of frames of film in the 
fraction of a second between the time when the fuse would ignite 
the explosive. I never knew what it all was, but it was some 
kind of fancy testing stuff. 

Well, they needed people to do sort of odd jobs. They were 
out in the middle of this almost like a desert east of San Diego. 
When they would blow stuff up, hot pieces of metal would fly 
around and start little fires. I was the guy who built the racks 
for the backpacks that held, I don t know, twenty gallons of 
water or something with a little nozzle on them that the crews 
would run around and put out the fires with. I built racks so 
that they could put one of those on either side of all the pickup 
trucks. I had never done anything like that before, but they 
just said, "Can you run a band saw and do this?" I said, "Sure." 
It was just crazy stuff. 

One day we went out, and we were the first people to arrive 
at the scene of a navy jet that had crashed. This was very close 
to the landing pattern for the Miramar Naval Air Station, which 
is where the navy had what later became known as the Top Gun 
school. I remember hearing this horrible noise one day, and it 
was an airplane crash. I didn t actually get all that close to 



29 

it, but some of the other people did. 
of an oddball job. 



So that was another kind 



When I was in law school, I worked in a couple of odd jobs. 
I worked in a printing place, where I did everything from 
sweeping the floors to taking this weird paint and painting out 
the clear spots in negatives of these engineering prints that 
they were doing through some photographic process. Picked up a 
couple of little research jobs here and there in law firms, but 
nothing that really was going to lead me anyplace, because I 
wasn t like a lot of the people who were out there really busting 
their backside trying to land a job in a law firm, because I knew 
I was going in the military. There wasn t any two ways about it. 
My student deferment had kept me out of the military for quite a 
while, and I knew it wasn t going to last forever. 

So I ended up in the air force. 



Social Life in College 



LaBerge: What about student life in college? What else did you do besides 
take your poli sci classes and ? 

Maddow: Well, I was pretty much a nerd, I think. [laughter] I lived in 
dorms. I had the opportunity to pledge a couple of fraternities, 
but I wasn t all that interested. If one of the fraternities 
with all the basketball players or something had asked me to 
pledge there, I might have been interested, but they weren t 
interested in me, I m sure, so I knew that was the case. But 
there were things about fraternity life that didn t appeal to me. 
It was a little too raucous and I knew it was going to be too 
expensive. I lived in dormitories just about the whole time. 
Roomed with one fellow who later became an engineer for an 
automotive company. We roomed together for most of three years. 
Right across the hall from us for those three years were two 
guys, one of whom was the one and only basketball player who 



30 

wasn t in a fraternity . Actually , I had known him all through 
high school, because his father was one of the inspirational 
people whom I should have mentioned before. He was a vice 
principal of my high school, and this fellow and his brother both 
went to Stanford and both went on to do good things. 

But his name, I should tell you, was Mr. Raaka [spells]. He 
was a vice principal and was a guy who was really somebody that 
the people who were the leaders of the student body looked up to. 
He s the person who told me, "Apply to a place that s your ideal, 
and one in the middle-,- and one that " it wasn t Mr. Stout; it 
was Mr. Raaka. 

Mr. Raaka s son Clayton was in my class, lived right across 
the hall from me in this dormitory for three years, was a starter 
on the basketball team for two or maybe all three of those years, 
was a complete flake, and was a wonderful guy. I ve completely 
lost touch with him, but he was Larry Horton s roommate. Clayton 
was about six-foot-five and Larry was about five-foot-six, and 
I m about six- two, and my roommate, Stu Westcott, was about five- 
foot-six. Wherever we went, people always used to talk about 
"the long and the short of it." [laughter] 

I became involved in some campus activities . In some of the 
things around sort of dormitory life and that sort of thing, I 
got involved in doing things, but I wasn t president of this or 
that in those days, I was more a worker bee. I served on a 
couple of campus-wide committees and things like that, but not 
anything that was any great shakes. I remember in my last two 
years, I was on something called the Campus Overnight Committee, 
and looking back on it now, I wonder how we even existed. In 
those days, for all the living groups, the big social events of 
the year would involve overnights . God, there must have been I 
mean, overnight--! look back on it now, and it was probably in 
those days, when we had the men s dormitories on one side of the 
street and the women s on the other, that was probably as close 
as you came to sort of sanctioned sexual escapades or some such 
thing, I don t know. But we actually were students who were 
given the responsibility of checking to make sure that the places 



31 

people were going for overnights were okay, that there were rooms 
for the women over here and for the men over here, and God only 
knows whatever would happen there. I look back on that now and I 
say, "What were we doing?" But this was in the early sixties, 
before all the revolutions of the later sixties, and so I guess 
maybe it made sense in that context. 

LaBerge: Well, I was in school in the later sixties, and I can relate to 
all of this, [laughter] 

Maddow: That s funny. But I became- -after I kind of went through the bad 
experience of thinking I was going to be an engineer, I was never 
a real bookworm, but I was kind of sopping up all there was to 
sop up at Stanford. I went to a lot of everything. I went to a 
lot of sports events, I went to a lot of cultural events, I went 
to a lot of the movies that were shown on campus on Sunday night, 
I liked to go to those. I liked to go to the various theatrical 
and music things not all the musical things. In those days, I 
didn t like the opera. Now I love the opera. I went to the 
opera when I was there a couple of times, but you know, it just 
wasn t exactly my cup of tea. 

I guess it was when I was at Stanford that I became a 
devourer of newspapers, which I still am. Stuart was from New 
Jersey, my roommate Stuart, and he subscribed to the New York 
Times Western Edition when it was first published. The two 
fellows in the room next to us that year were Joe Jacobs and Pete 
King, who were both involved with the campus newspaper. We kind 
of just fed off one another s thirst for what was going on 
through the press. As a matter of fact, there were times when I 
thought if I didn t go to law school, I might try and take my 
chances in journalism, because I was so interested by it. 

Pete King was the sports editor of the Stanford Daily, and 
through Pete, I used to sometimes get to go with him when he 
would interview the star of the other football team that Stanford 
was playing, or those kinds of things. I enjoyed those kinds of 
things. We d be up in the press box and Pete would be doing his 



LaBerge : 



32 

reporter s thing, and I d be his spotter, things like that, 
did a lot of things, a lot of things like that. 



So I 



I didn t own a car, and so I found myself not able to get 
out and see as much as I would have liked, but I used to find 
myself always looking for ways in which to go places and see 
things around the Bay Area. That s when I formed the attachment 
that stays with me today. It would be really hard for me to live 
anyplace else, except maybe Lake Tahoe or something. Does that 
help? 



Vietnam s Impact; Nationally. Locally, and Personally 



Oh, yes, it s great. Do you want to say more about either 
Vietnam or just that kind of atmosphere that was over everybody, 
your friends and the campus -- 



Maddow: Well, it was. 



LaBerge: It s something that younger people today wouldn t understand if 
they haven t lived through it. 

Maddow: I won t say a whole lot about it, but I will say a couple of 
things . 

Perhaps the event that more than any other single event 
about Vietnam sticks in my memory has to do with someone I just 
mentioned, Joe Jacobs. Joe was a year behind me at Stanford. He 
had a twin brother, a fraternal twin. His brother s name was 
Carl. Carl went to Berkeley and Joe went to Stanford. And Joe 
really wanted to be a theatrical producer. His whole life was 
pointed in that direction. Joe got drafted, and when he got over 
there, his commanding officer saw that in every waking moment, 
Joe was writing letters. And he read some stuff that Joe had 
written, and he wangled an assignment for Joe as a combat 



33 

correspondent for Stars and Stripes. They would actually go into 
combat, sort of right behind the front-line troops. 

And one day, Joe got caught up in a firefight and lost his 
glasses, and was slightly wounded, I think. I ve forgotten the 
details of that. But anyway, they sent him back in a Jeep that 
was taking some people back to a rear area, and as I recall, the 
Jeep hit a mine and then came under fire, and Joe was killed. 

And the reason I know about it is that Time magazine did one 
of its little vignettes for that week about the war about Joe, 
and about these letters that he wrote, and a particular letter 
that he wrote to Carl. And that hit me really hard. I remember 
reading it--I think that was in late 66 or early 67. It just 
tore at me, because Joe was somebody I had known well. First 
time I went back to Washington after the [Vietnam] Wall [was 
built], that was the first name I went to find. That s just 
really stuck with me. And I knew several other guys who were 
killed over there also, but none of them affected me quite the 
way Joe did. 

The other thing was that when I was in law school my last 
two years, I lived in the Haight-Ashbury District. We lived up 
near Buena Vista Park in San Francisco in this old house on Buena 
Vista Terrace, and we jokingly called it the BVTAC, the Buena 
Vista Terrace Athletic Club. It was a wonderful old house that 
had been built in like 1903, and it was owned by a woman named 
Mrs. Sipes, who was I think a quarter American Indian. She and 
her husband had owned this house, and he passed away, and she 
owned it all by herself now, and she had these generations of law 
students upstairs. What a fool! [laughter] 

But some interesting people. John Herrington, who is now 
the chairman of the state Republican party, was there. He was at 
that time engaged to Lois Haight, who is now a judge out in 
Contra Costa County. Guy Rounsaville who s the general counsel 
of Wells Fargo Bank, and Bruce Patterson, who s an assistant 
district attorney of Orange County, and Chick Hastings, who s now 
the county attorney, been the county attorney of Yavapai County 



34 

in Arizona for twenty years, 
that went through there. 



So we had a bunch of good people 



And in 66 and 67, we were close enough to the Haight- 
Ashbury as it was really getting roaring, so that we were able to 
observe everything that was going on down there. And of course, 
a lot of what was going on had a strong antiwar flavor. I d have 
to say that we were probably in the group that was a little bit 
more conservative than- -certainly the law students were more 
conservative than what was going on in the streets for darn sure, 
but among the law students, I guess I would have to say my 
personal politics, if I had any, were a little on the 
conservative side, looking back now. Because I really didn t 
understand the antiwar stuff all that well. If John Kennedy and 
Lyndon Johnson and people like that were getting us committed to 
these things, by golly, there- -and I was a lifelong Democrat and 
all, and my parents were, and all this. I didn t really get my 
eyes opened for a little while. 

I can remember the day of the first really huge march in San 
Francisco. What s the street just up from McAllister, is it 
Golden Gate? The street right behind Hastings I think is Golden 
Gate Avenue. 



LaBerge: I think it is Golden Gate. 

Maddow: And Channel 7 had its offices right there. When the students 
marched- -students ; the marchers marched; they weren t just 
students I think it was the first time there were like 100,000 
people in the streets. They went right by Channel 7. I remember 
sitting on a car right in front of the Channel 7 watching these 
people go by for a couple of hours, and I remember thinking to 
myself, Wow. What is this? I remember thinking, because we used 
to kind of joke aboutthese were the early days of hippies and 
all that, and we used to see some of the first of the wild 
scenes, used to kind of joke about it. After a while, you began 
to realize there was more to it than just a few freaks and 
weirdoes , which is probably what we were thinking at the 
beginning, because as I say, my friends and I were more 



35 

interested in sports and staying in school than we were in 
politics, I guess I d say. But it began to sink in after a 
while, and we began to realize there was something going on that 
was kind of tearing at the heart of the young people in 
particular, but eventually we began to realize it was a lot more 
than that. 

When John Kennedy [1963] was killed, it was the fall of my 
senior year. I remember being one of the young people who was 
just totally devastated by that. And I remember sort of the 
first real political awakenings for me were watching what 
happened as Lyndon Johnson became president. I knew enough about 
political science and government at that time to understand that 
Johnson had an incredible opportunity to do something. It was 
largely because he was in the period right after President 
Kennedy was killed and the nation was looking for someone to 
serve as a leader, but the thing that I learned through studying 
some political science from a Professor Watkins in particular and 
a man named John Bunzel was that somebody like Lyndon Johnson was 
probably ideally situated right then, because he knew how to get 
legislation through the Senate. 

So here I was, just out of poli sci education at Stanford, 
and I was able to watch the Civil Rights Act and all the things 
that happened in 64, 65, through legislation. And then I 
watched as Lyndon Johnson s presidency fell apart, because of the 
war, and because the consummate politician had feet of clay. 

All that was going on at the same time that I guess I was 
watching the kids in the street, and it began to kind of it all 
began to kind of reshape me in terms of my own thoughts about 
politics and life in general. I guess I never became a radical. 
I guess I never became even a real I ve always thought of myself 
as being sort of on the liberal side of politics, but I also 
understand that when you re twentysomeone said, it may have 
been one of the English or French political philosophers who 
said, "If at twenty you re not a liberal, you have no heart; if 
at forty you re not a conservative, you have no head." Well, I m 
a part of that, and I understand all that. But I think since 



36 

that awakening in the mid-sixties, it was so driven by Vietnam, I 
think I intended to be a person who tends far more towards the 
liberal side of political thinking, and questioning, and turning 
away from some of the things that were happening and have 
happened on the political right. 

But through it all, I always find myself going back to the 
policy issues as opposed to the political issues. What s the 
policy that we re following? What s the policy that s at the 
heart of what we re doing? What s our mission, what are our 
objectives? And for Vietnam, for me, I never figured out what 
our objectives were after I began to think about it. 



U.S. Air Force. 1967-1972 



Maddow: That became particularly true when I got in the air force and I 

was supposed to learn about these things, and it was really hard. 
But I ended up with work assignments in the air force that were 
about as far removed from Vietnam as you could be and still be in 
the military, because I worked in the space and missiles program. 
And that didn t have anything to do with Vietnam. 

LaBerge: Had you requested that, or--? 

Maddow: No. Oh, absolutely not. It was a really strange thing. I was 
in officer training school in November and then early December, 
and there were eighteen of us in our flight. Sixteen of the 
eighteen already had their assignments, and I still didn t have 
one. My roommate and another guy and I kind of hung around 
together. We were always joking about how the last one was going 
to get the worst one, you know. Then one day, I get this call 
saying, "Your assignment s in," and I went down and looked at the 
orders, and it talked about something I d never heard of. I was 
assigned to the headquarters of the Space and Missile Systems 
Organization, known as SAMSO, just south of the L.A. airport. It 
was at Los Angeles Air Force Station on El Segundo Boulevard. 



37 

The reason I got that assignment was that there was a 
colonel named Don Nunn, who was like the number two executive in 
this organization, and I ll talk some more about that in a 
minute. And he wanted, as he put it, a couple of bright young 
lieutenants for some real special assignments, and he picked me 
because of my education. Now, I had been selected to go to 
something called Procurement Management Staff Officers School. 
They did that with a lot of people who had law degrees. There 
were about 300 or 400 people who went into the air force in 67 
and early 68 who had law degrees, but they didn t have legal 
billets for them. All the JAG slots, judge advocate general, all 
the JAG corps slots were full. 

And so they were looking for other things for us to do, and 
so they started to push a lot of us towards contract work, and 
that s procurement management work. You go to this school up in 
Colorado where they teach you how to write an air force contract, 
and administer an air force contract, and all this stuff, how to 
buy widgets . 

Well, the lawyers generally got the assignments to the 
material acquisition commands. Like my old roommate, Chick 
Hastings, he went up to Electronics Systems Division up in 
Boston, and I got sent to SAMSO, and my friend Russ Allen got 
sent to SAMSO. We all went to the places where the contracts 
were more complicated and the issues were a little bit more 
esoteric, and they could use our law degree. 

Well, when I showed up there, I got assigned to work in the 
office that wrote and administered the annual contract with an 
air force-sponsored think tank called the Aerospace Corporation. 
Now, the model for Aerospace was the Rand Corporation, which was 
the first of this sort of government-sponsored defense-oriented 
think tank, only Aerospace had a much more clearly defined 
mission. Rand was for strategic thinking and that kind of thing, 
and policy analysis. Aerospace was, to use the jargon of those 
days , the general systems engineer and technical director of the 
entire air force missiles and space program, with the exception 
of the part that dealt with warheads . That work was done by TRW 



38 

Corporation. They were like the architects of missiles and space 
program. Aerospace had a unique contract that got special 
congressional attention every year, and my job was to work on 
some aspects of preparation for the congressional presentations, 
some aspects of the contract writing, with a particular emphasis 
on certain legal issues and on certain of sort of the 
congressional issues where there was always going to be a lot of 
congressional oversight, and then certain aspects of the contract 
administration. 

For most of the time that I was in that office, I was the 
only military guy. All the other people were federal civil 
servants . They reported to a man who was a very high-level civil 
servant named Mr. Reiser, Morris Reiser. And here I was, a 
second lieutenant, and I reported directly to Mr. Reiser s boss, 
Colonel Nunn. And boy, was that ever a strange situation. 



Colonel Nunn 1 s Influence 



LaBerge: Did you know Colonel Nunn before this? 

Maddow: I had never met him. 

LaBerge: Okay, he had just picked you out from your resume? 

Maddow: Colonel Nunn had been a real what they call fast burner in World 
War II. He was not a combat guy. He was a military logistics 
guy and did a lot of work in the Pentagon and at the very highest 
echelons of first the army air corps and later the air force, 
sort of the inner workings. And then he got out, and he was a 
very successful businessman in Connecticut, I think. He got 
ordered back to active duty in Korea. The stress of his business 
career had screwed up his family life enough so that he knew he 
didn t like that so much, and so he salvaged his family by going 
back in the air force, and stayed in, and ended up retiring as a 
two-star general, I think. 



39 

When I knew him, he was the third ranking person in SAMSO. 
The first ranking person was Jack O Neill, who was somehow 
related to [former Speaker of the House Thomas] Tip O Neill, but 
who looked like the classic air force general. He was a handsome 
man. He had been a fighter pilot, he had done all of the he was 
dashing, is what 

n 

Maddow: --because O Neill wanted to work on the high-end technical stuff 
and the interactions with the Pentagon and all that. And O Neill 
used as the guy he really relied upon, he used Colonel Nunn. So 
Colonel Nunn was kind of the number-two businessman in that 
organization, and he really took a shine to me. He relied a lot 
on my being willing to work very hard at things that I didn t 
always understand. He knew that if he gave me a mission, I would 
accomplish it. If I screwed it up, I could go to him and tell 
him I had screwed it up, and he wouldn t beat me, he would 
understand. He was just a really good boss. 

He got me into stuff and took me places and had me meet 
people that I wouldn t have ever had exposure to otherwise. When 
we were working on stuff with the Congress and all of that, it 
got to be really fascinating stuff. I didn t get really I mean, 
I wasn t the hands-on person with Senator This or Congressman 
That, the colonel was; but I was the guy writing his stuff, and I 
was the guy preparing his charts, and I was right behind him all 
the time. It was great experience. 

LaBerge: So you would go to Washington with him? 

Maddow: Occasionally. More often than not, I would be preparing the 

things that he would take to Washington with him, but each of the 
two years I worked for him, I made at least one trip back to the 
Pentagon, and it was always in the worst time of the year when it 
was just stinko. We would either be in the Pentagon or over at 
Andrews Air Force Base. It was great experience, and I must 
confess that Colonel Nunn is one of those people who helped me 
begin to understand how the understanding of mission and the 



40 

public policy issues and the actual running of the business kind 
of fit together. He was very good at that, and I liked him a 
lot. I really liked him. 



JAG 



Maddow: But the whole time I was working for him, I also knew that I 

would very much like to get into JAG [Judge Advocate General s 
Corps], because I wanted to really begin to use my legal 
training. There were actually several hundred of us who were 
working at that, and eventually, I ve forgotten the number now- -I 
think it may have been a couple hundred were actually allowed to 
transfer from their original billet, again most of them 
procurement management--! say "most," one of the guys was 
actually running a prison [ laughter ]- -but in any event, most of 
them went from a procurement management -type billet over to JAG, 
and most got relocated, but I didn t. I think I may have been 
the only one who ended up staying right at the same location. I 
just went from the Aerospace building over to the headquarters of 
the SAMSO, and I moved into the Judge Advocate General s Office 
there . 

LaBerge: So you never went to Asia or to Europe, you were stateside the 
whole time? 



Maddow: I tell people that I spent my Vietnam service years living on the 
top of a sand dune in Hermosa Beach, and commuting to work four 
or five miles in my Volkswagen Bug, half of the time being the 
only military person in the office where I worked and therefore 
being able to get away with having sideburns that were too long 
and all of that. And then the last two years, two and a half 
years, about, I was in the JAG, and I was in a military law 
office that was really laid-back. We worked hard, but it was not 
like most military careers by any means. There, my first boss 
was Carroll Kelley--[ spells] that s a man. He was from Boston, 
and had the thickest Boston accent you could imagine, and he 



41 

really got along with General O Neill who was also from Boston. 
But Colonel Kelley had known me when I was over at the Aerospace 
building, because I had done a lot of work with him, and he and I 
got along very well, and I liked him a great deal. 

One of the things that he let me do when I was working for 
him in the JAG was he allowed me to be the lawyer who spent the 
most time with our cadre of reserve air force lawyers. They were 
an incredible group. One was Evelle Younger, who at the time was 
district attorney of Los Angeles County and later became the 
attorney general of California. Another one was a man named Buck 
Compton. Compton was the man who prosecuted Sirhan Sirhan. 

LaBerge: Okay, I knew that name was familiar. 



Maddow: And later was appointed to the court of appeal, and after Colonel 
Kelley retired, Buck Compton hired him to be one of his research 
attorneys, because they d gotten to know each other through the 
military assignments, and Compton really formed a healthy respect 
for Kelley, who was a full colonel, old-style air force, shock of 
white hair, actually had his wings and all that stuff, but he was 
a lawyer s lawyer. Just a wonderful lawyer. 

So we had a good office in that respect, but then when 
Colonel Kelley retired, we got in a guy named Colonel Chet 
Taylor, who had just come back from the Philippines, and he was 
more a military man s lawyer than a lawyer s lawyer. He set his 
cap for convincing me to become a career military lawyer, and 
told me he was going to make sure that the assignments I would 
get would be good ones. The first assignment that came through 
for me looked like it was going to be in Guam, and it was going 
to be unaccompanied for fifteen months, I think, or eighteen 
months, I ve forgotten which it was. Well, I had a young son, 
and I didn t want to do that. So then he said, "Oh, don t worry 
about it, I can get that changed and we ll get you sent to Clark 
Air Base in the Philippines." Well, I didn t want to go to Clark 
either. 



42 

It was funny, because Colonel Taylor and his wife, whose 
name was Rita, invited me and actually, several of the other 
young captains over one time to have dinner and to look at their 
pictures of Clark. It was because one of the other captains had 
just been assigned there, and Colonel Taylor wanted me to go 
there. The other guy, he d already made up his mind. He 
actually did end up staying and making the air force a career, 
but that s what convinced me more than ever that I was getting 
out. [laughs] I was not intrigued with the thought of going to 
the Philippines. The things that he and his wife found really 
exciting about Clark and the Philippines were things that didn t 
appeal to me. 

And so I decided that I would get out as soon as I could, 
which turned out to be May of 1972--actually, April, I guess. 
But altogether, my active duty time was a little more than four 
and a half years, I guess, something like that. 

LaBerge: Which was more than you had to? 

Maddow: I had to extend a little bit when I talked my way into the Judge 
Advocate General s Corps, because I had been in the procurement 
job for a little more than two years at that point, and they made 
me sign on for two years of JAG service. My military career was 
odd, but I have to confess that I learned a lot about myself. 
It s when I started my family; I got married when I was in the 
service, to someone whom I d dated when I was in law school. We 
had our first child then, and began to really start the main part 
of my life then. Looking back on it, we had a wonderful life. 
We lived in this rented duplex- - 



Family: Elaine, David, and Rachel 



LaBerge: Now, before you tell me that, we have a little bit of time: tell 
me how you met your wife. 



A3 

Maddow: She crashed a party that I was invited to. (She hates that 
characterization, but I maintain that it s truel) 

LaBerge: Her name is ? 
Maddow: Her name is Elaine. 
LaBerge: What was her maiden name? 

Maddow: Gosse [spells]. She s from Newfoundland, and had come to 

California in 1963. We met in "65 at a party. We had mutual 
friends and that sort of thing, and we began to see each other. 
And then, oh, we saw each other a little bit early on, and then I 
went away for the summer. That was the Rummer when I waslet s 
see, I went to summer schoolthat was the summer I worked in the 
theatre. And then came back the next year, and got back together 
again in the beginning of my second year of law school and really 
kind of became serious then. In fact, it was the end of that 
year when I got mononucleosis, and she and her sister were the 
ones who nursed me back to health. They let me stay in their 
apartment. They both worked in the financial business. Elaine 
was in those days what was called a portfolio analyst for Dean 
Witter. That was one step below being what they called a 
securities analyst. Nowadays, they don t have portfolio analysts 
any more because computers do all of the work that she did. And 
her sister was the secretary to the president of the Pacific 
Coast Stock Exchange. 

Anyway, we became serious in my second year of law school, 
and knew in my third year of law school that we were going to get 
married after I joined the service, and did. She is absolutely 
the best thing that s ever happened to me, and is the best friend 
a person could ever have, as well as being a wonderful wife and a 
wonderful mother of our two great kids . So our life together has 
been really full and really rich, and I wouldn t change very much 
about it at all. 



Her father was a fisherman who married later on in his life. 
When I say fisherman, in Newfoundland that means fishing what s 



44 

called the inshore fishery, which is fishing for codfish out of 
very small boats. But he bought land as he could with the money 
he raised there, raised eight kids, six of whom are still back 
there, and then Elaine and one sister out here. She came from-- 
it s a really solid stock that she comes from, really very solid 
English and Irish stock, and people who just are sort of the salt 
of the earth. Her mother, who s eighty-seven, is still alive, a 
very compelling woman. Seventy-seven years old before she ever 
left the island of Newfoundland, and she left there to come out 
to see us. 

LaBerge: Oh, my gosh. 

Maddow: So it s a remarkable family. 

LaBerge: And your children, you have a son? 

Maddow: I have a son, David, who s twenty-seven. David is a Bishop 

O Dowd High School graduate. Went to UC San Diego, graduated in 
biology. Didn t know what he wanted to do, still doesn t know 
what he wants to do. Works in a law firm as the assistant office 
manager, where he does everything from soup to nuts, including 
everything from paralegal work to bookkeeping to grunt work and 
office management. He lives in San Francisco. He s a wonderful 
kid, and just great fun. He s still in search of the perfect 
party, I tell him. [laughter] He can do anything he puts his 
mind to, because he is really bright, has no fear of anything, 
and approaches each day with good humor and great wit. Elaine 
and I are really proud of him. 

And then we have a daughter, Rachel, who is twenty- three. 

LaBerge: And is at Oxford right now, but she must have done something 
before- -she went to Stanford? 



Maddow: She did. She didn t go to Bishop O Dowd; she went to Castro 

Valley High, and then went to Stanford, and just lit it up. I 
mean, her college career is the exact antithesis of mine. In the 
first place, Rachel when she was young was very athletic, and 



45 

actually was offered the ability to go play volleyball a couple 
of places and that sort of thing. And actually, when she was 
applying to Stanford, they had to write this essay, and one of 
the things she put in her essay was that "I have a tape of some 
of the highlights of my volleyball career to show to Coach Shaw 
if he s interested in allowing me to try and walk on." Well, in 
the spring of her senior year in high school, she tore up her 
shoulder, and she can t do anything any more. But all the energy 
she d put into athletics have gone into her academics and her 
other types of things. 

Rachel, when she was in her senior year in high school, 
began to work as a volunteer at the AIDS Center in Oakland, which 
in those days was headed by a nun in her sixties whose name I "ve 
forgotten. But Rachel got very interested in AIDS, and ran the 
AIDS education program at Stanford, and became very involved in 
sort of health care issues through that. And worked a couple of 
summers, one at the Leonard Davis Health Economics Institute, 
which is part of the University of Pennsylvania, and one summer 
she worked in Washington for a national coalition on AIDS policy, 
I ve forgotten [the name]. But it was a wonderful opportunity to 
learn about the economics of health care delivery on the one 
hand, the politics of it on another hand, and then all the things 
that she d learned through all of her other work. 

Then she graduated early; she won all kinds of awards, 
graduated with distinction, all these kinds of things. Won an 
Elie Wiesel prize for an essay that she wrote, and won a medal 
for her thesis, which was on a subject related to AIDS and the 
delivery of health care to AIDS people. And then won a Gardner 
fellowship; there are six of those granted every year, three for 
people from Berkeley, three from Stanford. They re called 
Gardner fellowships, named after John Gardner, who was LBJ s 
secretary of HEW [Health, Education and Welfare] and then has 
worked for all the presidents since then. But the Haas family 
endowed a fellowship called the Gardner, and what it did was 
enable her to work for a year in a public policy position, and 
they provided her a stipend. She worked for the AIDS Legal 
Referral Panel in San Francisco, which has 700 or 800 lawyers who 



46 

on a volunteer basis do work on legal problems of people with 
AIDS and their families. They have a public policy function 
headed by a really interesting woman named Eileen Hansen, and 
Rachel became Eileen s sort of number two and got all involved in 
the state legislation and regulation issues having to do with 
AIDS. 

And then the real big thrill was that she was chosen to be a 
Rhodes Scholar, and that s why she s in Oxford now. Actually, 
she won a Marshall and turned it down for the Rhodes . 

LaBerge: My gosh! 

Maddow: There haven t been too many of those in the last few years, but 
she was one of them. She became interested in the Marshall 
because when she was a junior at Stanford, she actually spent her 
fall term at the London School of Economics, and she was kind of 
thinking she d like to go back there, and you can t do that with 
Rhodes, but you could have with the Marshall. But then a number 
of people, including people whom she really admired, said, 
"Rachel, you can t turn down a Rhodes." For no other reason, you 
can t because if you turn down the Rhodes, nobody gets it. If 
you turn down the Marshall, somebody else will get it, and that 
was important to her, because one of her roommates was trying to 
get a Marshall at the time. 

Anyway, so she s in her second year at Oxford. We should 
know within a couple of weeks whether she ll have another year 
there, because she s trying to compete her way into what they 
call the D.Phil, program to end up with essentially a Ph.D. in 
politics. 1 She s just finished her "viva." The viva is sort of 
the first round of the oral defense of your thesis. Just had 
that a couple of weeks ago, and has been meeting with her 
advisors and supervisors and turned in another mass of papers 
here just Friday. I just talked to her for a long time about it 
yesterday. She s having a real exciting time. 



made it--she is now in the doctoral program. [Her D. Phil was 
conferred on August 15, 2001]. 



47 

Rachel is a political activist. Her politics are way out on 
the left. Rachel thinks that there are people in society and 
groups in society that are victims , and she wants to do something 
about it, and victims in particular through the work she started 
in high school: people with AIDS have been a real focus of hers. 
One of the things she did when she was on the Gardner fellowship 
was to write a piece of legislation called compassionate release, 
which had to do with women with AIDS in prison who are dying and 
who would like to be released so they could die at home with 
their family. It started off being a women s issue; it ended up 
being prisoners. And the legislation, she wrote it, she lobbied 
it, she did the testifying; it was passed by unanimous votes in 
both houses of the legislature and vetoed by the governor. 

But that got her really interested, and so she s doing her 
thesis on health care issues, not just AIDS, but health care 
generally in the prison systems in the United States and Great 
Britain, and she has become very interested in prisoners rights 
issues, particularly with an emphasis on health care. It s a 
very esoteric field, and every time she starts digging in, she 
finds that there are people who say, "We ve been waiting for you, 
we ve been waiting for someone to come along and do the research 
that you re finally doing. This is an area that needs 
attention," and to Rachel, that s a real attraction, because she 
sees people who she considers to be victims who need someone to 
become their champion. She ll never run for elective office or 
anything like that, but she will do something with her drive and 
her ability to focus, and she s incredibly articulate and a 
really fun kid at the same time. 

So we re blessed. We have two wonderful kids. 



LaBerge: It sounds like it. 

Maddow: We have one who s still trying to find himself, and I think at 
about age thirty he will, and he ll do something important, I 
just don t know what it is. And Rachel, who s got this 
incredible ability to focus, and it s always been that way. So 
we ve been- -it s been a fast ride for their mother and me. I 



48 

don t mean to dote on Rachel in that respect, because both of the 
kids have been we ve been just extremely proud of each of them. 

LaBerge: Well, this is a good place to stop. 
Maddow: I don t mind talking about my kids! 

LaBerge: You can talk more the next time. We ll pick up there and at the 
end of the air force, and what happened next. 

Maddow: Great. 



Religious Background 



[Interview 2: February 17, 1997] ## 



LaBerge: Before we start with how you got up north and working for East 
Bay MUD, why don t you tell me about your religious background? 

Maddow: I did not have a real strong religious upbringing. My parents 
attended a number of Protestant churches while we were in 
Arizona, although not regularly, and the same was true when we 
moved to San Diego. There was nothing really- -nothing like a 
strong organized religious influence. My recollection is we 
attended more Presbyterian churches than anything else, and that 
may have come from my mother s Dutch background . I do recall 
attending a vacation Bible school-type thing in a Lutheran 
church, actually, in Pacific Beach when I was in junior high 
school. 



By the time I was in high school, my mother and father had 
become very interested in Christian Science, and in fact later 
became very active in Christian Science for many years, and then 
in more recent years have kind of fallen away from that . 
However, when I went to college at Stanford, I reasonably 
regularly attended the nondenominational chapel there, I think as 



49 

much as anything else because I really liked the music. It was a 
sort of calm in the middle of the storm of college, and I guess I 
needed that once in a while. I guess I realized that. 

Then after I married Elaine, Elaine had been a lifelong 
Catholic. She s from a large family. Two of her sisters 
actually became nuns. One has spent her life in a religious 
order. One stayed twelve years and then got out and is now a 
social worker. But we had talked about this a lot while we were 
dating, and we had agreed that once we were married, that we 
would raise our children as Roman Catholics because that s what 
she knew. 

After attending mass with Elaine for a very long time let s 
see, I guess it s about ten years ago I went through a program 
called RCIA, which is Rite of Christian Initiation for Adults. 
That was the first year that particular program had ever been 
conducted at the church in our community, and I was in sort of 
the first class and still am an active member of the parish 
there. It s a church called Our Lady of Grace in Castro Valley. 
A large, old church, filled with sort of the original Castro 
Valley Italian and Portuguese families, and it s kind of an old- 
fashioned church. 

For about the last fifteen years we ve had Augustinians who 
have been the parish priests. We have not had diocesan priests, 
and we ve had all these slightly offbeat Augustinians, and I ve 
liked them a lot, and that s one reason we ve stayed in that 
church. I can t profess to have had a really strong religious 
upbringing. But now I am a fairly active member of the parish at 
our church. 

I m not active in the sense of being one of the people the 
church always turns to when they need something done, but I am a 
regular mass attender, I do become involved in some of the 
activities. I make a point of being a participant in certain 
aspects of the congregational life and that sort of thing, and 
it s become important to me. It s sort of a source of --oh, I 



50 

guess I would say strength in a way, but calm, in a way, also. 
So that s always been important to me. 



Decision to Leave L.A. and the Air Force 



LaBerge: Okay. Let s go back to the air force. Your stint was up, and 
how did you get back up north? Or had you decided already you 
were going to come to northern California? 

Maddow: I had always thought that I would prefer to go to northern 

California rather than southern California. My parents were 
still in San Diego. I had become familiar enough with the Los 
Angeles area during the air force years. We were fairly lucky, 
because we lived in Hermosa Beach, and I worked at the Los 
Angeles Air Force Station, which was about five miles away, and 
so I didn t have to get into the rat race of downtown Los Angeles 
too often. But occasionally I did, and I didn t like it. 

My sister at that time was married and lived way out on the 
east side of L.A., and we would occasionally go out there. And 
each time we did, I would say to myself, I never want to get into 
this. 



Then while I was in the air force, we had a fellow who had 
worked in our office while he was in law school, as a law clerk, 
who had gotten out and passed the bar, and he d gone to work in 
the legal department at Texaco. Their office, that particular 
office, was out on Wilshire Boulevard on the west side of the 
city. I guess it was still in L.A. And he had talked to me a 
couple of times about whether I might be interested in going to 
work there, and I d actually gone in and taken a look at the 
office and all that, and I knew that he lived in Manhattan Beach 
not very far from where we lived in Hermosa. So I tried out that 
commute a couple of times, and I said, "This is not for me." 
Because if I had lived in Los Angeles, in the Los Angeles area, I 
would have wanted to stay out at the beach. 



51 

So that had kind of given me a little sense of not wanting 
to stay in L.A. And I had always really enjoyed the Bay Area. 
I d been here seven years for college and law school. So I began 
to think more about trying to locate job opportunities in 
northern California. 

I also need to tell you that up through the early part of 
1972, when I was still on active duty, the Staff Judge Advocate, 
my boss there in the air force legal office, was trying hard to 
convince me that I ought to make a career of the air force. 
Actually, he was able to give me a pretty good indication of 
where I would go, because it was clear I wouldn t be staying at 
Los Angeles Air Force Station any longer. 

LaBerge : Is this Colonel Nunn? 

Maddow: No, by this time I was working in the legal office, I was away 

from Colonel Nunn by now. He was running the business and I was 
in the Staff Judge Advocate s office, so I was away from him. I 
was working for a man named Colonel Chet Taylor. Colonel Taylor 
was a gung-ho military guy. He really wanted to get young 
captains to stay beyond their first tour, and so he worked very 
hard on the four of us he had at that time, as I recall--! think 
there were four of us in our office. One actually did stay and 
made a career of it. But I wasn t very interested, and so he 
began to try and tell me that I ought to be interested because he 
knew that Elaine and I would like to travel, and we had one child 
at the time. That would be good for all of us. 

So he was able, through channels that he had, to find out 
that my next assignment would be either what was known as an 
unaccompanied assignment, meaning I would go alone and leave my 
family behind. That would be to Guam. Or, I had a chance at an 
accompanied assignment to a place called Misawa [spells] Air 
Base, which is up near Sapporo [spells], Japan, which you may 
remember because of the name of the beer that goes with Sapporo, 
but what I remember more importantly is, it s where they had the 
Winter Olympics. So that was going to be a cold place, and I 



52 

didn t want to go to a cold place. I didn t want to go to Guam 
alone either, and I didn t want to go to the Philippines. 

So all of Colonel Taylor s efforts were for naught, and I 
got out. 



53 



II EAST BAY MUNICIPAL UTILITY DISTRICT 1972-1992 



Interview with Jack Reillev 



Maddow: But I had started in late 1971 to look around a little bit. I 
was thinking at that time that a job for a public agency would 
make some sense, but I was more focused on county counsel s 
offices, you know, the lawyer for a county. I actually went up 
and interviewed with the county counsels in Sonoma County and in 
Marin County. They didn t have job opportunities that coincided 
very well with when I was getting out, however, so nothing 
materialized out of that. 

But through that process, I d been back in San Francisco, 
and I went over to Hastings Law School to the placement service 
and put my name in, and did some things like that. 

In the meantime, I was independently pursuing some 
opportunities I had found out about in district attorneys 
offices. A lot of lawyers start there; that s where you can 
first get some trial experience. At that point, I thought, Well, 
maybe, although my military legal experience had convinced me I 
really wasn t a trial lawyer. But I had submitted the papers and 
actually gone through an interview for the San Mateo District 
Attorney s office, and had a job offer that was pending. 

At about the time that offer was made to me, I was contacted 
by the Hastings placement service, and they said, "Somebody has 



54 

taken a look at your application and your resume and would like 
you to come to a preliminary round interview." I said, "Who is 
it?" And they said, "Well, it s East Bay MUD." And I said, 
"What?" They explained it to me, and it still meant nothing to 
me. But I said, "Well, send me the papers." 

What fascinated me was that this was going to be an 
interview the likes of which I d never heard of before. Instead 
of a situation where I would go in and talk to some person who 
would be interviewing me, I would go in along with five or six 
other people, and we d go through what I jokingly told Elaine was 
a group therapy session with somebody who would decide whether or 
not they wanted to hire one of us. Well, I was fascinated by it, 
and I wasn t threatened or anxious, because I had the San Mateo 
County job offer. And so I said, "Oh, what the heck, I ll do 
it," and they said they would pay my way. I think in those days 
you could fly up and down the coast on PSA for nineteen dollars 
or something. 

The person I was speaking to at East Bay, once I decided I 
would do it, was a man named Clark Sharick [spells] . And Clark 
was saying, "Well, this is going to be very early in the morning, 
and we ll put you up in a hotel." I said, "Well, actually, what 
I would like to do, if I can make the logistics arrangements, is 
to fly up and stay with my wife s sister," who was living in San 
Francisco at the time. So I did that, I flew up late in the 
afternoon the previous day and had dinner with her, and then it 
turns out Clark Sharick also lived in San Francisco, so he said, 
"I ll stop by and pick you up." 

I remember two things about it, it s funny. He had a 
Porsche. It was funny, because I knew nothing about Porsches, 
but this one was a very distinctive color, and the one other 
Porsche I d been in, probably ever before then, was the same 
color. And so I said to him, "Oh, this is Bahama yellow." 
[laughter] Well, he thought that was just great, so right away, 
he and I seemed to [hit it off]. 



55 

And then I remember he took me into the cafeteria, because 
he wanted to get a cup of coffee before we went to this interview 
place. I remember looking around and it looked like an old 
barracks building, and I thought, What is this? A steam table 
and all. I had no idea what I was getting into. 

LaBerge: And was he in the legal department? 

Maddow: No, Clark was in the personnel department, and he was the person 
who was running this particular exam. This was their form of 
exam. 

The interview turned out to be, I think there were five or 
six other people, I think all men, as I recall, each of whom was 
interested in this job opening. The people who were doing the 
interviewing included Jack Reilley, and a man named Mack Carter. 
I don t remember what Mack s job title was back then, but he was 
a pretty high-ranking executive at the district. And a man named 
[Ed] Lane. 



I think it was Ed Lane, who at that time--maybe still, I 
guess--is in the county counsel s office up in Contra Costa. 
They brought him in to be an outside interviewer. 

The interview process was one in which they had a series of 
questions and ideas that they would throw out to us, and each of 
us was supposed to address whatever these matters were, sort of 
in turn, and without stepping on one another. This was not 
supposed to be like elbowing each other out of the way. And I 
found it very interesting, because I was very relaxed. Most of 
the other people were uptight. I d had four and a half years in 
the air force by then, and I didn t get intimidated by facing 
legal issues. I had developed a kind of a results-oriented sort 
of problem-solving approach to dealing with issues like that. I 
thought the interview was great fun, and I thought to myself, 
They ll never be interested in me. I m too relaxed, or laid 
back, or something. 



56 

So the interview ended that afternoon. Then I had a one-on- 
one session with Reilley later on during the day, as did each of 
the people, and I was one of the last ones, as I recall. Then 
they gave me a little chit and put me in a taxicab, and I went 
back out to the airport and flew back to Hermosa Beach, and told 
Elaine, "There s no chance I ll get that job, so I guess we d 
better start looking for an apartment in San Mateo." 

The next day, Reilley called me and he said, "I want you to 
come up here and take this job." [laughter] He wasn t quite 
that blunt, but we he and I had kind of sparked right away. 
There was easy communication between us. So I really didn t 
think twice about it. It looked to me like something that meant 
that I would not be a trial lawyer trying burglaries for the next 
two years, which frankly wasn t all that appealing to me. I 
didn t know very much about what a water utility was, but I could 
tell from talking to Reilley, Mack Carter and Clark Sharick, and 
in particular a little bit of the interchange with Ed Lane about 
what he saw about what the East Bay MUD job was, that there would 
be a lot of variety, and that it would be business-oriented, 
transactional-oriented as opposed to litigation-oriented, so I 
said, "Let s try it." For two years, how can you go wrong? 



Describing the Office 



LaBerge: And was thatwas it going to be two years? 

Maddow: No, that s what I thought. Two years . I knew they had a 
probationary process, and I figured I wouldn t have too much 
trouble surviving probation, but I figured, I ll give it a try 
for a couple of years. Because that s what I had always thought 
I would do in a D.A. s office if I went there for openers. 

Well, as it turned out, I had so much fun that I stayed 
twenty years. [laughter] When I first went there, I really 



57 

wasn t sure what I was doing. I had a pretty good idea of who I 
was and what it meant to be a lawyer, but 

LaBerge: What was the job description? 

Maddow: At the time, the district had two other lawyers in the office 
besides Jack Reilley. One of them had been there a very long 
time, maybe twenty years, almost twenty years. One of them had 
been there like five years. Each of them did a little bit of 
everything. I was the new person who came in as what was called 
in those days an assistant attorney, appointed by the board of 
directors to serve at the pleasure of the board to do the legal 
work of the district under the direction of Jack Reilley. 

LaBerge: Who were the other two? 



Maddow: Frank Howard, whom I think you know, and a man named Wayne 

Witchez [spells]. Wayne, I think, is dead now. They were the 
three-person legal staff for the utility district at that time. 
Frank had primarily responsibility in the areas related to the 
district s wastewater department. You know, East Bay has the big 
water function, but it also has a very big wastewater department, 
and wastewater activities were very busy then. And Frank also 
did a lot of work with the district s personnel and human 
resources type issues and that sort of thing. 

In those days, Jack Reilley--he didn t carve out hard and 
fast pigeonholes quite as much as he had to in later years as the 
legal work increased. And certainly not as much as I did later 
on, because the pace and volume of legal work continued to spiral 
upward during the time I was general counsel, and we ll get to 
that later. But Frank was clearly the number-two person. He d 
been there with Jack a long time. Wayne had been there for a 
shorter period of time, and Wayne was like the office pitbull. 
Wayne was the guy who would go off and handle defense matters, 
and take on construction contractors. Wayne loved to get in 
there and just fight. He was kind of a street smart guy, and was 
very effective in his own way. He wasn t a master of the written 
word or anything like that, and sometimes he got his tongue all 



58 

tangled up when he was speaking. But he had a very quick wit, 
and he had a real good litigator s instinct. He was an 
aggressive guy, and he knew a lot of stuff. So he was a pretty 
effective fellow there. 

I was the first ever number-four lawyer. When I went there, 
there was no place for me to sit, because they had not needed a 
fourth office then. So during the first several weeks that I was 
there, I sat in the library as the district s carpenter staff, I 
guess, was remodeling the place a little bit to carve out a new 
office and give me a place to sit. 

I remember being back at this old sort of Formica-topped 
library table with a hot plate. A woman who was no longer in the 
office, she had been until I don t know, not too many months or 
I guess years before I came there, but that was where Myrtle 
cooked her lunch. [laughter] I just have this sort of vague 
recollection of that. 



CEQA. NEPA. and ACWA 



Maddow: When I first was in the office, the first thing that I did was to 
try and learn a little bit about what a water district was all 
about and what it meant to be a lawyer for a water district. I 
fairly early on began to work on some contract problems , because 
Jack knew I had a background in contract work with the air force. 
I had gone to work there in May of 1972 and in June of 1972, the 
state supreme court decided a case called Friends of Mammoth v. 
Board of Supervisors of Mono County. 1 That was the first case in 
which the California Environmental Quality Act was interpreted by 
the state supreme court as having very broad significance in 
regard to decisions made by government agencies. Until that 
case, there had been a perception, I guess, that the 
Environmental Quality Act was meaningful primarily for public 



1 8 Cal.3d 247 



59 

works projects, but in the Mammoth case, the supreme court said 
that a public agency- -in that case, the board of supervisors- - 
needed to evaluate the environmental impacts of a private 
projectas I recall, it was a hotel project prior to granting 
some land use approval. 

That came as a bit of a shock, and it was sort of the 
opening of the era of what we now know as environmental law in 
California state law. The Environmental Quality Act had been, 
enacted I think in 1969 or 1970-- 

LaBerge: This is the California one? 

Maddow: The California Environmental Quality Act, or CEQA. 1 It was sort 
of in the aftermath of the National Environmental Policy Act, 2 
NEPA, which had been enacted a few years earlier. California, 
like a lot of other states, enacted its own environmental 
protection statute. They were commonly called "little NEPAs" in 
those days. And California s little NEPA was thought to be 
narrower in application and significance until this case. 

Well, Jack realized that this case was going to be 
important, because the district had a fairly ambitious program 
ahead of it in terms of its public works needs, and he could see, 
I think, that the new era of environmental law was going to 
change the way in which the district would be able to go about 
meeting those public works needs, and so he wanted somebody to 
get involved, and I was the one he picked. 



Now, at the time I went to work for the district, it had 
already signed the contract with the Bureau of Reclamation for 
the American River water. That was signed in 1970. And in 1972, 
when I went to work there, the district had an American River 
project team, and in fact had already hired a consultant --the 



A.B. 2045, Environmental Quality Act of 1970, 1970 Reg. Sess., Cal. 
Stat. ch. 1433 (1970). 

National Environmental Policy Act of 1969, 83 Stat. 852 (1970). 



60 

name of the firm was Jones & Stokes, they still exist to write 
an environmental impact report on the right of way for the 
pipeline to bring American River water from the Folsom South 
Canal up in Sacramento County down to the district s service 
area. 

So it s not as though the district didn t understand CEQA, 
and that they were going to have to comply with it, but the 
concern was that with this supreme court decision, CEQA was going 
to change, and the utility district needed to be aware of it. 
And so in the aftermath of the Mammoth case, there was a fairly 
extensive effort in the California legislature to amend the 
statute to try and provide a road map to public agencies as to 
what this broader statutory application was going to mean. How 
do public agencies apply CEQA now that we know it s got broader 
application? And there was a bill that was introduced by the 
assemblyman who was from Richmond, his name was Jack Knox, John 
T. Knox-- 

LaBerge: Okay. He was one of your mentors? 
Maddow: Well, in a sense, yes. 
LaBerge: Or you learned something 



Maddow: I learned a great deal from him. Mentor is a little too strong, 
but certainly someone from whom I learned a great deal, and from 
whom I benefited from contact. It wasn t always favorable 
contact. Now, actually, I guess I could say that we re on a 
pretty friendly basis, but there were some tough times at the 
beginning. 

But Knox wasat that time, I believe he was the chairman of 
the Assembly Local Government Committee, and that s why it fell 
under his domain. He had as a staff assistant a man named Tom 
Willoughby. 1 



Thomas H. Willoughby, an oral history conducted in 1988, for the 
California State Archives, Regional Oral History Office, University of 
California, Berkeley, 1990. 



61 

LaBerge: We have an oral history with him. 

Maddow: Oh, that s wonderful. 

Tom was the staff guy who was heading up Jack Knox s effort 
to deal with the act. 



There s a water industry trade association that in those 
days I think was still known as the Irrigation Districts 
Association. It s now known as ACWA, the Association of 
California Water Agencies. ACWA had a state legislative 
committee, and East Bay MUD was very active in that committee. 
Its lobbyist in those days was a man named Rod Franz [spells] , 
who was an All-American football player at Cal and is sort of a 
legendary character, and we can talk some more about him. 
Between Rod s activities with that association and another 
association called CMUA, California Municipal Utilities 
Association, of which Jack Reilley headed the Legislative 
Committee, there were quite a few opportunities for the district 
to become involved in helping to shape that piece of legislation. 

Our concern was that there was going to be a great deal of 
attention paid to cities and counties which have land use 
authority over the development of land, subdivisions, et cetera, 
and that s where there would be a lot of attention paid to 
environmental impact reports, environmental documentation, 
consideration of environmental effects. Here s this water 
district that wants to build this pipeline across hill and dale, 
knowing full well that there would be environmental 
considerations that would enter into it. And in addition to 
that, it was a water agency that even back in the seventies was 
facing questions about urban development and growth, and one of 
the issues that was starting to be heard way back then was, 
what s the relationship between providing water to an area where 
growth is proposed and approving, or dealing with, the growth 
itself? So one of the principal-- 



62 
CEQA Guidelines and Evolution of Environmental Law. 1972 



LaBerge: Okay, the relationship between providing the water and dealing 
with the growth itself? 

Maddow: Yes. The cities and the counties dealt with whether or not a 
particular subdivision met with their zoning and planning 
requirements, et cetera. But what we were faced with was, Is 
there a water supply available to serve those subdivisions? Or, 
are there water facilities available? I can remember 
participating in these meetings where here I was, this young kid 
who barely knew what a water utility was, standing up there 
talking to Tom Willoughby and the people from the California Real 
Estate Association and the Farm Bureau and whoever else. They d 
be talking about the issues that would be of concern to them, and 
I would be saying, "Now, one of those subdivisions has to have a 
water tank, and the only way you can build the water tank is you 
put it up on top of the nearest hill, where it s conceivably 
going to be an eyesore. Now, who worries about those 
environmental impacts, and how does that process work?" 

So that was a part of the discussion of how something that s 
called the "lead agency principle" evolved, and I was very much 
involved in first the legislation and later the evolution of the 
state regulations, called the CEQA guidelines, on what the 
relationships are between water agencies, as an example, or sewer 
agencies, and general purpose units of governmentcities or 
counties--in regard to land use matters. The principle is that, 
since it s the land use that is really the driving factor, the 
city or the county ought to be the lead agency with the primary 
responsibility for dealing with all of the environmental impacts 
of a proposed land use. The water agency ought to be a 
"responsible" agency to deal solely with the environmental 
impacts of getting water to that subdivision, or getting 
wastewater, dealing with wastewater services or what have you. 

The idea was that the water agency should not become a small 
tail wagging a great big dog, because we were always afraid that 



63 

that would happen, and what we didn t want to have happen was a 
city or a county saying it s okay to build this big subdivision, 
but oh, by the way, water hasn t been dealt with, and then the 
environmental impact report or other considerations related to 
the water facilities become the focal point of the concern about 
whether this big activity is going to go forward. In those days, 
the worst case scenario that you thought about was, if you can t 
get your water facilities in, do you end up effectively with the 
utility buying the property or being sued for inverse 
condemnation, because it hasn t done its thing properly or in a 
timely fashion, and therefore, the query as to whether that s a 
taking of the private property. 

We now know that it would not have been. Inverse 
condemnation law and the law of takings has evolved. But in 
those days, we didn t know all that, and so we had to be 
concerned about some worst case scenarios. 

I ve dwelled on all of that because it s important to me, 
from the standpoint of the evolution of my time at East Bay in a 
couple of ways. First place, it allowed me to get in on the 
ground floor of environmental law in the state and for East Bay, 
and I think that s important because environmental issues have 
been very significant to the East Bay ever since. 

Second, it gave me an opportunity to develop sort of a 
network of people with whom I could relatively easily communicate 
throughout the water industry, and at least for a time, in state 
government. Tom Willoughby was one of them. He was one of the 
most capable legislative staff people I ever met, and is now a 
very capable lobbyist for PG&E. I guess that s where he still 
is; I haven t seen him in years. 

Assemblyman Knox was one of the best, in my opinion. He 
didn t always agree with what East Bay MUD was saying or what I 
was advocating, but I always thought he was an absolutely 
outstanding legislator. The people I worked with in this ACWA 
group were primarily lawyers, and some managers; I was very 
fortunate in that I was able to develop some relationships, some 



LaBerge : 
Maddow: 
LaBerge : 
Maddow : 



64 

of which I ve maintained right through to today with people whom 
I consider to be part of the network of people I deal with in the 
water industry, people up and down the state. And it goes back 
to those early days in 72 and 73 dealing with the CEQA 
amendments in A.B. 889 1 and then the first efforts to develop the 
state EIR guidelines. 

So it s A.B. 889? 

I believe it was A.B. 889, and then 

In 73? 

I think it was in 72. 



One of the things that the bill did was to provide that the 
state government would issue regulations that would further 
interpret and implement CEQA, and the process of development of 
those regulations was also quite intense, quite active, and I was 
pretty well up to my hips in that one as well. And again, the 
ACWA group was instrumental in that. 



Political Reform Act of 1974 



Maddow: That formed a kind of a pattern, and a few years later, for 
example, just to digress further, after Watergate in 73, I 
guess, there was an initiative called the Political Reform Act 
that was approved by the voters in 1974. This was a very 
comprehensive initiative, unlike most of the ones we ve been 
living with ever since. But what that did, I believe it was 
called Proposition 9 in 1974, 2 it was written by two people who 



A.B. 889, Amendments to Environmental Quality Act of 1970, 1972 Reg. 
Sess., Cal. Stat. ch. 1154 (1972). 

Proposition 9 (June 1974) . 



65 

worked for then Secretary of State [Edmund G., Jr.] Jerry Brown, 
a man named Bob Stern and a man named Dan Lowenstein. I ve 
forgotten what Bob Stern does now. I ve come across him since 
then, but I ve forgotten. Dan Lowenstein now teaches at UCLA, law 
school. 

But the Political Reform Act involved trying to clean up 
California political life, I guess I would say. That was from 
the perspective of Mr. Brown. It dealt with issues of conflict 
of interest, campaign expenditures and disclosures of campaign 
contributions, and matters like that. The conflict of interest 
chapter required every public agency to have something called a 
conflict of interest code, which in essence was intended to 
require officials of local agencies to disclose their 
investments, their income, et cetera, and to disqualify 
themselves if they ever had the opportunity to participate in 
government decision-making that could have an influence or an 
impact on a business entity in which they had an investment, or a 
real estate investment, or a source of income to them. 

Here again, the legislation, which was by initiative, called 
for the adoption of regulations, and the ACWA group became one of 
the major spearheads for trying to sort through the regulations, 
in particular on conflict of interest. Our concern was that 
water agencies would be able to continue to make decisions in 
spite of, or in compliance with, or whatever it was, that 
whatever the implications of this new statute would be. None of 
us knew at the time. It looked huge and very imposing. 

As I say, the two authors of the Political Reform Act were 
Dan Lowenstein and Bob Stern. The act created the Fair Political 
Practices Commission. Dan was its first chair, Bob was its 
general counsel. We worked closely with them in evolving these 
regulations. And I ll just give you one quick example to give 
you an idea of what we were talking about. 

Suppose you had a water agency official who held stock in 
his or her personal investments in the PG&E company. And let s 
assume that the water agency, as many do, had business 



66 

transactions with PG&E. A water agency that buys its power to 
run its pumps from PG&E is probably not going to have very much 
of an impact on PG&E, because they re just another customer. On 
the other hand, what about a water agency that generates power 
and sells it to PG&E? That could be a pretty significant 
financial transaction. 



The Fortune 500 Test 



Maddow: So the water agency group spearheaded the effort to make sure 

that the conflict of interest law was applied to things that were 
relevant to the particular agency s field of jurisdiction, and to 
make sure that we weren t picking up nickels and dimes, because 
that might be more constraining than the authors of the statute 
or the voters intended, but instead to pick up things that had a 
material financial effect. Those were the words of the statute. 

And we helped to evolve tests. For example, if the entity 
that you re interested in is a very large entity, the water 
agency group, myself included, said things like, "We don t want 
to pick up the nickel-and-dime decisions. We want to pick up the 
things that mean something to them." And the bigger the 
corporation, the bigger the impact needs to be, and we were the 
ones who authored something called the Fortune 500 Test. If it s 
a Fortune 500 corporation, then the impact needs to be big, a 
million dollars or something. Whereas if it s a company with 
annual business of $100,000, a $1,000 transaction is material. 
So we were trying to say, "Let s make sure that everything is 
targeted and focused, because then the resulttrying to achieve 
political reform- -can be achieved in a meaningful, rational way 
that we can explain to our clients, and we can work under this 
law," which all of us knew was a heck of a good idea. 

Reilley let me go work on that stuff. Reilley knew that in 
the long run, it was going to have a big impact on the utility 
district. He didn t say a whole lot about these things, but as I 



67 

would talk to him about these things, there s no question in my 
mind that he had a great vision of what the utility was, what its 
role was, how it was different from other utilities like those 
that get their water supply from the state or the federal 
government. It was independent. It stood all by itself. How it 
was different from cities and counties. Had to relate to them, 
but it was different from them. Stood all by itself. And so he 
knew that as environmental law was evolving, and as this new 
political law stuff was evolving, it was going to be important 
for the utility district to understand it to the extent that the 
utility district was able to see things because of its 
independence that maybe others didn t see, that we needed to be 
able to take a role in shaping the way it all worked. He was 
willing to let this new, wet-behind-the-ears lawyer who still 
didn t know very much about what a water utility was, he was 
willing to let me go and spend a lot of time working on that kind 
of stuff. 

And it was an enormously valuable education, because it 
forced me quickly to learn more about the utility and the utility 
business, and it gave me a sense of how the utility and its 
business related to the rest of the world. I mean, when we were 
doing these things on the CEQA guidelines or the statutory 
amendment, or the FPPC guidelines, there was interaction between 
the lawyers and the lobbyists for the water agencies, and the 
people from the League of California Cities, and the California 
Supervisors Association, and private industry, and the real 
estate association, et cetera. And that s a great education in 
terms of how stuff works. I have always really appreciated 
Reilley s having let me get that education. I ve spent way too 
long in this interview talking about all that-- 

LaBerge: No, this is fascinating, and it s wonderful. It gives a bigger 
picture of what the utility is . I remember going to my first 
interview with Mr. Raines thinking that all we were going to talk 
about was water law. I had no concept about everything that you 
have to do, including politics. 



68 

Maddow: Well, I have a story about that. People ask me a lot why I 

stayed at East Bay MUD for as long as I did, and my answer is 
that I m not a litigator, but in the almost twenty-one years I 
was at the utility district, I saw a little bit of everything. 
I m not a litigator, but I was in court in everything from a 
criminal law case to a divorce case, and my client was always the 
utility district. I don t know too many people who had that kind 
of variety working in a public agency, and in particular, a water 
utility. But I had an enormous variety, and I have to say, It 
was that sort of constantly changing tableau of files stacked on 
your desk that more than anything else made it an interesting 
place to work. That, together with the fact that we were working 
on some stuff of enormous significance. 

The other thing that happened in the first month that I was 
there, besides the Friends of Mammoth case coming down, was that 
the legal challenge to the district s American River contract was 
filed. That also happened I think in June of 1972, when the 
Environmental Defense Fund and some individuals sued the district 
to challenge its contract. That case is still alive today, and I 
know Mr. Reilley would have talked a lot about that, and I know 
you and I will also. But that case involved sort of the cosmic 
levels of water law and water policy, and that was all going on 
at the time it started just after the time that I arrived at the 
utility district, and as I say, is still going on today. It s 
one of the things that Reilley will always think of as being one 
of the most important things he worked on in his career, and I 
feel the same way in my career, and of course, so does my 
successor, Bob Helwick. [tape interruption] 



Establishing a Network of Water Lawyers 



LaBerge: Well, in working with the lobbyists and ACWA to help form both 

the Fair Political Practices Commission and the other guidelines, 
did you have to go up to Sacramento? Who else did you work with? 



69 

Maddow: Most of the work was done in Sacramento. This was before we had 
the fax machines, and so we used the mail and telephone. But we 
did work extensively in Sacramento. In all three casesthe CEQA 
amendments, the CEQA guidelines, and then later, the Fair 
Political Practices Commission guidelines --ACWA had as its 
executive director and general counsel a man named John Eraser 
[spells]. John was very much involved in all of that. There 
were others. There was another association, CMUA, and as I 
recall at that time-- John Fraser s counterpart over at CMUA, 
which was a smaller organization, was Jerry Jordan, as I recall. 
Rod Franz was East Bay MUD s lobbyist; he was involved in 
everything having to do with the legislation. He worked for John 
Plumb [spells], who was the secretary of the district. And so 
that was sort of the internal team. 

Externally, there were lawyers from all kinds of places. A 
man named Bob Jones from Price, Postel & Parma in Santa Barbara. 
Is that the kind of name you re interested in? 

LaBerge: Yes, and if you have any anecdotes about them, or some of the 
names that you gave you before, like Art Littleworth: was he 
involved? 



Maddow: Art was involved to some degree in these activities. So was one 
of his partners at Best, Best & Krieger, a man named Dallas 
Holmes, who is now on the superior court bench down in Riverside 
County . 

LaBerge: Did you work with Jerry Brown? 

Maddow: No, we didn t actually have direct contact with him, but we did a 
lot of work with in particular Bob Stern, who had worked for 
Jerry Brown in the secretary of state s office. Dan Lowenstein 
and Bob Stern were in the secretary of state s office when they 
wrote Proposition 9, the Political Reform Act. Now, whether they 
did it on state time or not, I don t know, but it ended up- -you 
know, in the aftermath of Watergate, it was an easy thing to 
pass. 



70 

We had a fair amount of contact with lawyers from up and 
down the state. For example, the Metropolitan Water District of 
southern California had a lawyer named Jarlath Oley [spells], 
Jarlath had gone to work at the Metropolitan at about the same 
time I went to East Bay, and he was thrown in in sort of a 
similar way by general counsel of the Metropolitan, John Lauten 
[spells] . And then Art Kidman, from a firm down in Orange 
County, was very much involved, along with a man who s now his 
partner, Russ Behrens [spells]. They represented urban agencies 
in southern California. Jim Ganulin [spells] , was at that time 
the assistant general counsel, later the general counsel, of 
Westlands Water District, the biggest of the Central Valley 
irrigators. Jim was involved with all of that. Jim was a former 
deputy attorney general, and so he had particularly useful 
knowledge about how state government worked. 

LaBerge: For the most part, did you all within the water lawyers agree as 
to how things should be, or did you have disagreements? 

Maddow: No, we had disagreements. Frequently, it wasthings were more 
difficult for the people who represented agricultural agencies, 
because people who were on boards of agricultural districts are 
landowners, and therefore, these conflict of interest issues were 
very difficult for them. And of course, in the environmental 
arena, those were areas that were far more conservative, much 
less likely to be attuned to these environmental theories and 
trends and all of that. So we did have differences of opinion. 

One of the things that really impressed me was that there 
was a man from up in Oroville named Jack Minasian [spells], who 
was an older gentleman, and the word "gentleman" should just be 
underscored. He was a true gentleman. He became involved in 
some of the activities related to the Environmental Quality Act 
amendments. He and his clients didn t really understand all of 
that, but Jack knew that it was important, knew he had to become 
involved. He had a very courtly way about him, and I can 
remember having these discussions about how these newsort of 
newfangled ideas --he didn t use those terms --were going to work 
in the communities that he was familiar with. I remember those 



71 

discussions; they weren t really debates, but discussions. They 
gave me a sense of, Gee, what we know down here in the East Bay- 
after all, we represent places like Oakland and Berkeley where 
you have sort of hotbeds of progressive thinking it isn t that 
way everyplace else, and we have to make sure that when we re 
talking about the community of water agencies, we have room for 
both sides of that spectrum there. 

So you asked for anecdotes: I ll tell you one. There was a 
man named Ed Roupal [spells]. He headed an organization called 
the People s Lobby. They were very much involved with 
Proposition 9, the Political Reform Act, he and his wife Joyce. 
We were working hard at the conflict of interest issues, and he 
was primarily focusing on the campaign disclosure stuff as we 
would go to these hearings at the commission on their proposed 
regulations. Five or six of the lawyers from the water community 
would walk in, and we d sit together, and we d be waiting for our 
agenda item, and then we d all have something to say. 

He wanted to get to his issues, and sometimes, when we were 
debating our issues, it would take a while, and he wouldn t get 
to his issues. And one day, he got very frustrated with us, and 
he finally stood up. He interrupted the hearing, and he said, 
"My wife and I came here because we re really interested in this 
other set of issues that s further down on your agenda, and we re 
sick and tired of hearing from"--and he jerked his thumb over his 
shoulder in the direction of those of us sitting over there- - 
"we re sick and tired of sitting here listening to the guys in 
the gray suits." And we sat there and we looked, and sure 
enough, every one of us had on a gray suit that day. We thought 
to ourselves, Oh, my gosh, we re really typecast now. And Ed 
Koupal--that was the only time I think we ever communicated with 
him. 

About that same time, there was the head of the staff of the 
Fair Political Practices Commission, I guess he was probably 
called its executive director, a man named Rudy Nothenberg, who 
is-- 



72 



LaBerge: Still in the news. 



Maddow: Still in the news. He was chief administrative officer in San 

Francisco, and now I think he heads I ve forgotten which of the 
city commissions or departments. A lifelong public servant, and 
a very articulate guy in a way that is interesting. He has an 
accent which I guess is English, and he has a very rich speaking 
voice. I can remember one time, I got up to make a presentation 
on a part of the ACWA pitch on some aspect of the conflict of 
interest regulations; I was really frustrated, because we had 
been debating some issue, and the commission had decided against 
us, or the staff had argued against us, or something like that. 
And I started in to my pitch on the next issue, and I think I got 
the two issues a little bit bollixed up or interwoven. I 
probably wasn t as articulate as I wanted to be, so I just 
stopped. I was kind of composing myself for a second, and Rudy 
Nothenberg said, in his deep, very beautiful speaking voice, he 
kind of cleared his throat and he said, "It s a little hard for 
me to respond to that." [laughter] Everybody laughed, and it 
broke the ice of the moment, and I went on with my presentation, 
and it was just fine. 

But things like that. We were having some pretty difficult 
wrangles in those days, and yet, between the courtliness of a 
Jack Minasian and the feistiness of an Ed Koupal and the style of 
a Rudy Nothenberg, I have to say, I think we did good work. I 
think what happened with the Environmental Quality Act and the 
CEQA guidelines and the FPPC guidelines, because of all that 
effort by a lot of people who really focused on it back then, 
they re still viable matters today. I mean, each of those sets 
of regulations, and the statutes, and things we did, still have 
continuing viability, and they re just part of the everyday 
routine of being in public agency life any longer. So as I say, 
that s all part of the education. 



73 
John Plumb. Jack Knox. Rod Franz 



LaBerge: Who would you need to check with at the district before you went 
to these meetings? 

Maddow: Generally Jack Reilley. John Plumb, who headed up the district s 
activities in the legislature. He was the secretary and had as 
his responsibility I don t remember if this was his title but 
he was sort of the manager of the district s legislative affairs. 
The lobbyist reported to him, and he and Jack worked very closely 
together, and the general manager in those days, Jack Harriett, 
knew that Jack Reilley wouldn t do anything or allow anything to 
happen that would not be in the best interests of the utility 
district. He trusted Jack a lot. 

But John Plumb and Jack Knox didn t see eye to eye on a lot 
of things. I think that s largely because John had spent his 
career kind of working on the Republican side of politics as it 
existed back then in the sixties and the early seventies, and 
Jack Knox was one of the leaders of the Democratic party. There 
were times when the Contra Costa County Republicans and Jack 
Knox, who was the leader of the Contra Costa County Democrats, 
the Bert Coffey wing of the Democratic party, they crossed 
swords. And Jack Knox usually came out the winner, so I suspect 
John Plumb and he didn t see eye to eye very often. 

I can remember one day when there was going to be a hearing 
on A.B. 889 someplace down in Los Angeles, and Knox was flying 
down, and as it turned out, John Plumb and I were flying down for 
the utility district on the same plane. Knox and Plumb had one 
of their typical sort of acerbic exchanges as we were in the 
terminal, but I had a particular issue I wanted to talk to Knox 
about, and I got the opportunity. I think Knox had seen me in 
action a couple of times, and I was able to talk to him on a real 
businesslike level, because I stayed away from the politics of 
things. I began to understand early on what lobbyists and so- 
called governmental affairs people did, and I knew I didn t do 
that and didn t want to. So that was one of the times when I 



74 

pretty much was following the direction I got from Jack Reilley, 
and was kind of given my head to try to accomplish the objective 
through persuasion. 

One other aspect of all of that that I think is interesting, 
especially since this is a UC effort: Rod Franz was the 
district s lobbyist, and Rod was extremely successful as a 
lobbyist. It was because he never, ever told anybody anything 
that was anything other than 100 percent truth. He never, ever 
shaded things. He wore his feelings on his chin, and he just was 
the nicest guy in the world. And here was this guy, he was the 
only three-time Ail-American football player in the history of 
the University of California. That was after he d come back from 
World War II, where he had- -I don t know if it was an injury or a 
wound or what, but his voice box had been cracked, so he has this 
real raspy voice. And Rod is not an issues guy. He wouldn t be 
the one who would go in and lobby the issues for East Bay, 
because he didn t always understand them. But because everybody 
trusted him, and they knew that he would- - 



LaBerge: Okay, he could open any door in town. 

Maddow: Right, and for a couple of years on, in particular, the 

environmental law issues and the Political Reform Act issues, Rod 
would get the door open, and I would be the one he d push 
through. So the two of us became sort of the spokespersons for 
the utility district on those issues, and we were a good tandem, 
good team. Rod used to take me to all of the meetings of the 
state legislative committee of ACWA, and that helped me again to 
form these relationships that resulted in my having a kind of a 
network of lawyers with whom I have been dealing ever since. I 
still deal with many of those people in my capacity where I chair 
the Legal Affairs Committee for ACWA, and it s largely because 
the people who are on that committee are people whom I started to 
get to know back through those processes in the mid-seventies, 
[tape interruption] 



75 



Board of Directors 



LaBerge: What about any dealings with the board of directors? Did you 

have to go to any board of directors meetings and say, "This is 
what I m doing up in Sacramento," or--? 

Maddow: The utility district board during the times we ve just been 

talking about was a five -per son board, and the members of the 
board were elected at large, even though they had to live in 
individually drawn districts. That s in direct contrast to now, 
when there are seven directors and they not only live in those 
districts but they re elected from those districts. So back 
then, they ran in front of a million people, whereas now it s 
150,000 or something like that. 

The principal difference between that older board and this 
board is that older board looked at things that were of broad 
concern to the whole district. They didn t ever think so much 
about my ward versus somebody else s ward. The way in which 
matters were presented to the board mirrored that. They did the 
regular business of the district: awarding contracts and all 
that. The Political Reform Act issues or broad environmental law 
issues or these kinds of things would be brought to them in the 
context of something that is of district-wide concern. And so 
occasionally, Jack Reilley would have me make a presentation, 
usually a brief one, about summarizing what was going on, how 
these issues worked, what the implications were for the utility 
district, how the utility district was working with other 
segments of the sort of political marketplace. 

Now, sometimes I d brief Jack and he d do it, and other 
times, he would actually have me become involved. In those days, 
if you went to a utility district board meeting, you would 
typically see a lot of staff there . We went through a period 
during my time at the district when that wasn t the case. We had 
a subsequent general manager who wanted to limit the number of 
staff there. But in the days when Jack Harriett was general 
manager, if there was something on the agenda that was of concern 



76 

to you as a staff member, you would go to the meeting. So I 
relatively frequently went to board meetings, developed a pretty 
good sense of the ebb and flow of what happened at those 
meetings, did not pinch-hit for Jack. If anybody- -if Jack was 
going to be away, or if he was ill, Frank would be the one who 
would pinch-hit, because he was the senior person after Jack. 

But Jack gave me a lot of assignments on things that 
directly involved the board of directors. For example, in local 
agencies, you always have to deal with something called the Brown 
Act, 1 which has to do with what are called the open meeting 
requirements, and how your agenda is set and those kinds of 
things. Over the years, I think I probably had more of those 
issues than the other lawyers did, and then in later years, I had 
them all. 



Brown Act Requirements 



LaBerge: Can you give me an example? 

Maddow: I m a little hard pressed to think of a real specific instance, 
so I ll need to generalize a little bit. The Brown Act was 
passed to keep public agencies from doing business behind closed 
doors . Over the years , there were cases that came down that had 
to do with what you could do in a closed session, because it was 
an attorney-client privileged matter or something like that, and 
what you had to do out in front, what you had to put on your 
agenda, that sort of thing. It s much more specific now. The 
law is just very tightly bound up in all these little 
pigeonholes. 

But Jack had me watch those areas of the law, or maybe he 
allowed me to watch those areas of the law. I can t remember 



A.B. 339, 1953 Reg. Sess., Cal. Stat. ch. 1588 (1953), Government 
Code Sec. 54900 et seq. 



77 

that he said, "You do this." And I would keep him advised and 
keep John Plumb advised so that the agendas were written in a 
manner that was consistent with the law, and so that at the times 
when it was time for the board to discuss something in closed 
session, you would check to be sure it was being done right. It 
wasn t anything like the degree of intricacy that that subject 
area of the law is now, but it was something that had a lot to do 
with the way the board of directors functioned. Jack let me 
observe all of that, or participate in a great deal of that. 



Helen Burke s and Ken Simmons Contributions 



Maddow: Then in the mid- seventies, there was a big change, because that s 
when the legislature passed the statute that changed the East Bay 
MUD board from one that was five people elected district-wide to 
seven people elected ward by ward. And for the first time, we 
began to see, I guess I would say, regular majority and minority 
views on matters that came before the board. It began right 
away, with the first election after the statute had been passed, 
when a woman named Helen Burke was elected to the board. 

Helen had been a critic of the district. She was an 
official with the- -not an official. She was involved with the 
Sierra Club. At that time, I don t know whether she held an 
official position or whatever. But she was elected from the 
Berkeley ward, and frequently disagreed with the majority of the 
board on a number of issues. 

For example, in 1972, the litigation had begun over the 
implementation of the American River water supply contract. She 
sided with the people who were opposing the district s efforts to 
develop that contract. They were people whom she knew through 
various environmental organizations. In particular, a woman 
named Jean Siri [spells], who was one of the four individuals who 
was an individual named plaintiff in that case. She and Helen 
Burke were friends, and political colleagues, that sort of thing. 



78 

Jean Sir! later served on the city council in El Cerrito and has 
done a number of things in political life. Her husband, Dr. Will 
Siri, was one of the founders of the Save the Bay Association. 
[Jean Siri later was elected to Board of EBRPD] . 

LaBerge: Okay, that sounds familiar. 

Maddow: I think you ve done some things on them. 1 

LaBerge: Yes. 

Maddow: He was very much involved with the creation of the BCDC. 

Anyway, Helen was frequently at odds with the rest of the 
board. I was the lawyer who I think she maybe developed the 
ability to communicate with more so than the others. And I think 
that she saw Jack as being the board s lawyer, and me as being a 
lawyer who worked for Jack to whom she could talk a little more 
easily. She might not see it that way or say it that way, but I 
always had the feeling thatshe didn t always like what I had to 
say, but she talked more easily to me than she did with Jack, on 
some things . 

Early on, when the Environmental Defense Fund had brought 
this litigation against the district, Jack was handling the case. 
I was not really on point in the litigation, although I did some 
writing and some of the that case was all done on the papers in 
the early days. It wasn t being tried in the courtroom at all. 
That came much later. I had something to do with the papers 
early on; we all had a piece of it. But it was Jack s case. 

But occasionally, as environmental law was kind of getting 
started here, there were various and sundry meetings that I would 
want to go to on behalf of the utility district so I d know what 



See William E. Siri, "Reflections on the Sierra Club, the 
Environment, and Mountaineering, 1950s- 1970s, " an oral history conducted 
1975-1977, Regional Oral History Office, University of California, 
Berkeley, 1979. 



79 

was going on, and Jack would say okay. And I got to know Tom 
Graff, who was the Environmental Defense Fund attorney- -whom you 
know, of course. 1 



LaBerge: Yes. 

Maddow: And a man named Dick Gutting [spells], who was in those days in 
the fund. I early on developed the ability to communicate with 
people in these organizations, even though they didn t 
necessarily agree with anything I was representing or anything 
like that, but at least we could communicate. And I think Helen 
respected that. Even though, as I say, I don t think she liked 
what I said all the time, I think that she knew that I would 
never deceive her, that I was going to play as straight with her 
as I would with anybody else on the board, and I think we formed 
reasonably healthy mutual respect. I d like to think that still 
continues today, although I haven t really seen her in quite some 
time. But she s been gone from the East Bay MUD board for a 
while. I ve had a couple of contacts with her since then. I 
always respected her for her having the courage of her 
convictions, even in the days when she was one of seven, and when 
the others were unwilling to be very accepting of her. I think 
Helen did she didn t win a lot of votes, but in her way, she won 
a lot of battles. I think that her coming on the East Bay board 
was a very healthy thing. I think East Bay has been far better 
off in the years since the mid-seventies than a lot of other 
agencies from the standpoint of East Bay s sensitivity to 
environmental considerations, for example. 

Another person who came to the East Bay board about then was 
a man named Ken Simmons, who s still there. Ken was the first 
black to come on that board. Ken brought the initial round of, I 
guess I would say, really serious concerns about diversity: 
diversity of the workforce, diversity of the way in which the 



See Thomas J. Graff and David R. Yardas, "The Passage of the Central 
Valley Project Improvement Act, 1991-1992: Environmental Defense Fund 
Perspective," an oral history conducted in 1994 by Malca Chall, Regional 
Oral History Office, The Bancroft Library, University of California, 
Berkeley, 1996. 



80 

utility district does its contracting for supplies and services 
and what have you. I have thought since early on when I got to 
know him that, of the directors that I knew at East Bay, he was 
the smartest, but unfortunately, he was not as interested in East 
Bay MUD as he was in the many other things he was doing. He was 
a faculty member at the University of California and had his own 
architectural firm and things like that. But he was smart, and 
when he put his mind to it, he could just be terrific as a 
director, as a problem- solver, as somebody who could get through 
whatever the political or technical or administrative details 
were. He always seemed to be able to do it. It s just that he 
didn t do it as often as I would have liked to have seen, because 
he was so good. 

But as I say, what he brought to the board that was unique 
was, for the first time, causing the district to really have to 
face up to, both literally and figuratively, face up to issues of 
diversity. I think that Ken Simmons brought some just invaluable 
traits and characteristics and thought processes to the utility 
district. And there too, I think that the district has profited 
by having had somebody like him. Just in the same way that Helen 
Burke broke the ice in so many ways, he broke the ice in so many 
other ways. Split votes are healthy things, and having that 
loyal minority, or that other side of questions, that sort of 
thing: that s how you grow, as an institution. 

So I was real fortunate to be able to see that from sort of 
an inside position and to work with those people. They didn t 
look to me for political considerations in regard to the issues 
they were involved with; they looked to me for legal 
considerations. They knew that, and I knew that, and sometimes, 
I had to say--I can remember sometimes hearing Jack Reilley say, 
"The legal considerations here are" as opposed to the political 
considerations that are somebody else s to worry about. So a 
great education, to be there at that time when that set of 
changes took place. 



81 
Change in Board Elections 



Maddow: Now, I have to say there is a flip side to it because I believe 
that when the utility district board changed from a five-person 
board to a seven-person board, in addition to it becoming 
modernized to some aspects of what I would consider to be more 
progressive thinking than might otherwise have happened, the 
district lost the ability to some degree to focus on the big 
issues of broadest concern district-wide. It s not that they 
didn t understand the issues; they knew that they were there. 
But the people who became the directors of the utility district 
after it changed to ward by ward elections were people who seemed 
to be focused more on the election process and election-related 
issues, that were usually more focused on their individual ward, 
than on looking at the broader view. 

Big water supply projects are not done in four-year 
increments, they re done in twenty-year increments or thirty-year 
increments, or hundred-year increments. You ve got to be able to 
take that real long view in order to succeed with the kinds of 
things that the utility district had done in the first fifty 
years of its existence. And some of that was lost when people 
came to the board with more of a focus on their individual ward, 
and what it would take to become elected or reelected there, or 
who would their successor be, et cetera. 

I m not saying one system was right and the other was wrong. 
But what I am saying is that, from the standpoint of the 
direction of the institution, and what it takes to be truly a 
leader of that institution, that kind of institution, that 
statutory change, from a five-person board elected at large to a 
seven-person board elected by ward, was like night and day. It 
was relatively easy with the five-person board, once they were 
convinced that they ought to go in a certain direction, to keep 
them going in that direction. With a seven-person board, getting 
them to focus on what that big issue was and remain focused on it 
was harder, because those seven directors had more pressures on 



82 

them in the limited time that they had to devote to utility 
district matters . 

In the days prior to--in the fifties, for example, the 
utility district had to do something big and important, because 
the first phase of the development of the utility district all 
swirled around the water rights that they filed for in 1924. 
That project that they built in the twenties was built way bigger 
than they thought would really be necessary for a long time, but 
it wasn t nearly as big as what the need turned out to be, 
because along came World War II. And so as soon as the war was 
over, they went back and built the second barrel of the 
[Mokelumne] aqueduct. And in 1949, they filed the second water 
rights application. The big thing that happened in the fifties 
was to build- -to lay the foundation for what became the second 
leg of the East Bay project you know, the Camanche Reservoir, 
the second set of water rights, all those things that Harold 
Raines and Jack Reilley were so much responsible for. They had 
real leadership then, coming from the board of directors and 
coining from managers, all of whom were able to focus in sort of 
the old traditional way on how you did these things. 

Those were the days when the utility district board knew it 
had to go to the voters to get a bond passed, a bond issue 
approved. And so they did it in the old-fashioned way: utility 
district managers became officers in the local service clubs, 
they went to the chamber of commerce; you made the rounds, you 
put together a committee of leading citizens. There was a 
retired admiral named Earl Hipp who headed up this committee, 
I ve forgotten what they were called. They put together the Big 
M" project to build the third aqueduct and to build Camanche 
Reservoir and all of that. It was the kind of project that 
emanated from the downtown business leaders and civic leaders and 
the chamber of commerce, and those were the kinds of people who 
were on the East Bay MUD board. They were all business people. 

In the seventies, things changed. And so when it came time 
to do something about the American River project in the seventies 
and on into the eighties, you didn t have that sort of focused, 



83 

sort of business community, chamber of commerce-type that had 
all become much more fragmented over time. And within the 
utility district, you had a couple of choices as to where you 
were going to get that kind of leadership. You might get it from 
the board, or if you d have a board that isn t going to provide 
it, then you might have to get it from a real strong general 
manager. 



Role of the General Manager 



Maddow: Mr. Harriett was from the old school of general managers, and 

probably would not have been allowed to step out and become the 
real champion, the real leader, the real visionary, for the 
utility district, because it wasn t as necessary and it would 
have been seen as being sort of out of character for the utility 
district. 

Then the board changed. Mr. Harnett was still there, and he 
was doing his darnedest to make sure that the utility district 
stayed on track, in spite of all these changes that were going 
on, and there were lots of other pressures on the district as 
well. 

When Mr. Harnett left in 1980, I guess it was, and Mr. 
[Jerry] Gilbert came in 1981, Gilbert was a guy who had done big 
things in the water business, and suddenly here was a general 
manager who was willing and able to be the big thinker, the 
visionary, to fill the vacuum that was left by the changing 
pattern, changing events that went way back to the sixties when 
the utility district had built the Big M project. Gilbert came 
in and tried to be that real strong leader. He needed to 
mobilize the support of the board. He could never get the whole 
board. The board was always divided. And so his efforts were 
not totally successful. And now, I don t know enough about the 
utility district to know where that vision comes from, where that 
leadership comes from today. I don t know if it comes from 



84 

within the management, or within the board, or a combination of 
them, or whether it exists at all. 

But I m convinced, from what I ve seen from all the history 
I ve read, that unless you ve got some sense of what that vision 
is and some sense of what that big institutional objective is, 
it s hard to move the institution in any particular direction. 
It s ever so much harder now, because of all the legal 
entanglements and public policy entanglements that institutions 
like this have to deal with. So from a public policy standpoint, 
it s a much tougher world in which to solve the kinds of problems 
that the utility district has been confronted with over the 
years. If you were to try in the nineties to build what the 
utility district built in the twenties or the forties or the 
sixties, I don t think you could do it. What you would do in the 
nineties is to build something that would be a substantially 
different institution, if you could do it. It would be kind of 
like watching the efforts to build the new Bay Bridge . It s 
going to be a lot different than the effort to build the one 
that s there now. 



Bert Carrington and Other Directors 



LaBerge: Yes. You once mentioned one of the old board members, Mr. 
Carrington. 

Maddow: Mr. Carrington was one of the really interesting people at East 
Bay, and I hope that Jack or Harold Raines talked about him. 

LaBerge: No, they didn t, so I d like you to. 

Maddow: When I came on the board, there were two very elderly gentlemen 
on the board. Bert Carrington- -his initials were A. C. 
Carrington, I don t know what A. or C. stood for, but everybody 
called him Bert. I think he served on the board for more than 
thirty years, and I don t think he started until he was past 



85 

sixty. When he left the board, I believe he was the oldest 
living elected official then serving in the United States. He 
was well into his nineties. 

He had been, I think, the owner or perhaps the president of 
a chocolate company. I think it was called Baylor s [spells] 
Chocolate, which was an old Oakland firm. I don t think it 
exists any longer. I imagine he was probably appointed to the 
board- -that s the way it worked back in the old, old days, sort 
of the business people would appoint people they knew. 

He was an interesting man, because when I first met him in 
1972, he was almost totally blind. His wife, as I understood it, 
would read the materials to him that were sent to him by the 
district. He would come to board meetings, and he wouldn t 
always have a great deal to say, but when he said something, he 
was obviously dealing from insightful knowledge and from sort of 
a business person s sense of things. Even though he was blind, 
he was very sharp. There was someone from the district staff who 
would go and pick him up and bring him to the meetings, and make 
sure he got home safely. After Mrs. Carrington became ill and 
eventually passed away, I think a district person would actually 
do some of the reading to him so that he could continue to 
function. I think he was on the board until he was ninety- four, 
something like that. 

Now, Howard Robinson was an insurance executive. He served 
a similarly long period of time, something on the order of thirty 
years. He didn t speak out as much as Mr. Carrington did in the 
board meetings that I can remember attending, but I do recall one 
time, there was a contract that was coming before the board, and 
there was something odd about it. I frankly don t remember what 
it was . But there was a question about whether a contractor 
could be either allowed to walk away from its bid, or allowed to 
make a change for some reason midstream in the contract. Oh, I 
know what it was. It had to do with the purchase of chemicals 
that were used in the water treatment process. I think the 
particular chemical was lime. The refinement process that was 
used for the lime that was purchased by the district for use in 



86 

its treatment plants involved heat. I ve forgotten just what 
year it was, but I think it was 73 when we had the first Arab 
oil embargo, and the price 

LaBerge: That sounds right. 

Maddow: and the price of oil shot upward. This contractor begged for 
relief from the firm, fixed price it had quoted, because it 
couldn t possibly stay in business at that price. I was asked 
whether there was a legal theory under which that could be 
accomplished. I remember doing a lot of research, and finding 
some theories, and putting something together that Jack was 
satisfied with, and finally, it came time for that matter to go 
before the board. It was being presented to the board, and I 
can t remember whether it was Jack who asked me to answer the 
questions or the staff person, I just don t recall that. But I 
had to stand up and offer these legal theories to the board. 

Howard Robinson was a stickler for procedure, and for 
business people sticking by their word. We ended up with, as I 
recall, a four- to-one vote in favor of granting the relief that 
this contractor had sought, that the staff wanted to give, for 
which I d found a legal theory that would work, and Howard 
Robinson would have none of it, and he voted no. I can remember 
people coming up to me afterwards and saying that s the first 
time that they could remember in all the years that Mr. Robinson 
had been on the board that there had been a split vote where he 
was the only one in the minority, and it was all on this matter 
of principle. And "Maddow, you ve achieved something." And I 
can remember saying to somebody, "Yes, but I don t know if it s 
good or bad." [laughter] So that one kind of sticks out for me. 

There was another man on the board then named Bob Nahas 
[spells], who is best known around here because of the Coliseum. 
He was the person who was the major thinker in terms of putting 
together the Oakland-Alameda County Coliseum. He was a 
developer, he developed the Orinda Woods complex, and he s done a 
number of other things like that, shopping centers and things 
like that. He s a fascinating man. Many, many years later, my 



87 

daughter won a scholarship called the Nahas Scholarship when she 
was graduating from high school and going off to college. I 
happened to have an opportunity to talk to him after that, and I 
reminded him that he was the person who made the motion, as I 
recall, that resulted in my being hired by East Bay MUD. It had 
to be a board appointment. Maybe he didn t make the motion, but 
he was the one who spoke up at the meeting. And I remember him 
looking out at me and saying, "Now, Mr. Maddow, I want you to 
make sure you keep us out of jail." And I said, "I ll try, Mr. 
Nahas , " and that was it . Here I was , shaking in my boots , not 
knowing what was going on. 

But Bob Nahas was another one of those big thinkers who East 
Bay MUD was fortunate to have on its board for a while. I can 
remember that there was a time when there was discussion about 
implementation of the district s American River water service 
contract, and it was clear that it was going to be a very long 
time before it would be built, the facilities to bring in the 
water would be built, and yet, the district had to start paying 
for the water under what s called a "take or pay" contract. 
Somebody, one of the environmental organizations, got up and 
started talking about that, and Bob Nahas said, "If we didn t 
take this water until," and then he said some date, I don t 
remember what it was, "how much would we have paid out prior to 
the time we started taking any water?" And the staff had done 
the analysis, and it was millions and millions of dollars. And 
he said, "That is absolutely dirt cheap, given the insurance that 
that the contract will provide . " 

II 

Maddow: [Bob Nahas] was willing to think about what was going to happen 

twenty or thirty years down the road, and I think that that was a 
valuable type of thinking. He was the big thinker type guy who 
used to be on boards like this, and I think that that was real 
important. 

I ve spent a lot of time on that, Germaine; I think it s 
time for you to give me another question. 



88 



Affirmative Action 



LaBerge: Okay. Well, just talking about Ken Simmons brought up just the 
issue of affirmative action. One of the dates I have is 75, 
voluntary affirmative action? 

Maddow: Yes. 

LaBerge: Do you remember how that came about, and was that before Ken 
Simmons was on the board? 

* 

Maddow: I believe it was before Ken came on the board. If I am not 

mistaken, Ken came on the board in 76 or in 78. I think it was 
78. I should remember that. 



LaBerge: We can check that date. 

Maddow: The district had already moved in the direction of a voluntary 

affirmative action program and this was in regard to employment 
establishing employment objectives in terms of what I guess we 
would now callwell, I guess even then it was an affirmative 
action principle. But the district began to look at the 
distribution of women and people from ethnic minorities 
throughout the workforce, and concerns about that issue were 
obviously going to exist in a community in the East Bay in the 
sixties and seventies. They began to be recognized. The 
district had a human resources department that was pretty good, 
and I think this was happening to some degree spontaneously and 
to some degree because there were workers within the workforce 
who were concerned. There were broader political pressures in 
regard to these kinds of issues. 

LaBerge: Well, I know it was out in the world. 
Maddow: Absolutely. 

LaBerge: For instance, Bank of America was picketed, and a couple of other 
large companies, so-- 



89 

Maddow: I can t really put my finger on the genesis of it at East Bay, 

but I can tell you that these efforts had begun prior to the time 
that Ken Simmons came on the board. Ken was sort of the 
principal ramrod of not only making these efforts but increasing 
them, stiffening them, and expanding into other areas. For 
example, Ken more than anyone else was responsible for the 
affirmative action efforts of the utility district in regard to 
contracts for materials and supplies and services. The utility 
district early on, in relationship to lots and lots of other 
agencies, was very active in those areas, and has been able to I 
think has had a remarkable track record in terms of bringing 
minority and women-owned businesses, disadvantaged businesses, 
into sort of the mainstream of the district s work. 

And it s happened in a lot of ways. I remember during the 
time that the risk manager reported to me while I was general 
counsel, he went out on his own and in effect developed a 
minority insurance brokerage firm. What he did, he found a 
commercial lines insurance firm in the East Bay that was owned by 
a black family. Actually, my recollection is it was a man and 
his brother and the daughter of one of those men. They did 
commercial lines insurance for small businesses, but they had 
never done anything on the scale of the kind of insurance that 
East Bay MUD buys, which is pretty sophisticated stuff. And the 
fellow who was the risk manager then and is now, Tom Nordin 
[spells], he knew that a firm like that couldn t take the place 
of the big commercial lines insurance brokers the district was 
using. 

But what he did was to get this firm moving in a direction 
where they kind of educated themselves , and came in as a 
subcontractor sort of, almost like on-the-job training, working 
with the big firm. Tom worked at carving out certain of the 
tasks that had to be accomplished by the broker, and sort of 
earmarking them for the minority subcontractor at the beginning, 
and later joint venturer, if you will. 

That was the kind of thing that a lot of people at East Bay 
worked hard at, because they knew the institution had this 



90 

commitment, and they knew that their own success as a district 
manager depended upon their meeting the district s objectives, 
standing up for the district s commitments, et cetera. And we 
had real good people who, regardless of whether--! don t know 
this, but it wouldn t surprise me to find out that some of the 
people were doing this against their own personal views or 
values. But they were committed to it, because the institution 
not only made it the institutional objective, but it looked at 
its individual employees and said, "We re going to gauge your 
performance on how well you measure up to those institutional 

goals and ob j ectives . " 



You find that in the private sector a lot more than you do 
in the public sector, and that was one of the things that 
happened at East Bay in the whole area of affirmative action, 
both in the workforce and for contractors. It was with Ken 
Simmons being the ramrod. I give him a lot of credit for that, 
because sometimes, he too was out there all by his lonesome, and 
he s a very bright guy and has been a very valuable director in a 
lot of ways, even though there are those who will be critical of 
him because he wasn t always there. He wasn t always as 
committed. There were many times when he would sit out the 
debate, and he wouldn t go to meetings and things like that. 
Because he s a busy guy, pulled in a lot of directions. But when 
he was there, boy, was he effective. 

LaBerge: Well, who else was involved, though? Because if in fact the 
district really had this policy, a lot of you must have been 
behind it. 



Maddow: Yes. Frank Howard was very much involved from the legal 

perspective and did a lot of good work. Frank really believed in 
this stuff. Frank s wife was an attorney who had not had the 
easiest time practicing her profession, because there weren t 
very many women attorneys around in those days , and Frank 
recognized that. I think that had a bearing on his thinking. 

There was a man named Jay Smiley, who was the head of the 
personnel department for much of that time. He had a man who 



91 

worked for him who s dead now named Norm Schwab [spells]. They 
really believed in these things. The district hired a woman 
named Jean Love Smith to be its affirmative action officer I 
think around 75 or 76. I took my hat off to her when I first 
met her, and I continued to for the whole time she worked for the 
district, because she was the one who had to go out there to the 
East Bay MUD field forces where you had construction people who 
had always done it their way, and she said, "When you re making a 
hiring decision, you re supposed to, all things being equal, take 
the person who looks like people who you ve never taken before." 

We didn t have quotas, we didn t have the things you 
couldn t have. What we had were programs that were built on 
jawboning and establishment of objectives and doing our 
darnedest, and that s the hardest kind of program to run. And 
Jean Love Smith was the person who really fought the hard fight. 
She was the district s affirmative action officer; she was sort 
of ombudsperson for people who had a problem, be it because they 
were black and weren t getting consideration they thought they 
should, or female, or whatever it was. She got right down in the 
trenches and fought some of the real hard, lonely fights. In her 
quiet way, she was a very gracious person and a quiet person, but 
who could shout when she needed to. She really is owed a great 
deal of credit. 

I also think, though, that you have to give a lot of credit 
to the people who were at the top of the organization, because it 
goes back to Jack Harnett and it went through Jerry Gilbert, and 
I think every other person I know who has occupied that chair. 

I don t know what any of those people thought about in their 
personal beliefs about equality in the workforce and 
nontraditional employment and all those kinds of things. But 
they were willing to put themselves on the line for those issues, 
because it had become what East Bay MUD did. 



92 
Settling a Lawsuit 



Maddow: During my tenure as general counsel, we fought the hardest fight 
about all that stuff, I think. There was a case that actually 
began before I became general counsel, but it matured while I was 
there. There were two black employees, a man named Frank Erving 
[spells] and Stan Mclntosh. They had brought a lawsuit against 
the district alleging that they had been discriminated against on 
the basis of race in regard to job opportunities. They were in 
the workforce, and they alleged that they were still at the lower 
reaches of the workforce, in spite of the fact that they were as 
qualified, or they even alleged that they perhaps were better 
qualified than others. And they in effect alleged, I guess I 
would call it, institutionalized discriminatory practices. 

The case didn t look like much at the beginning, because it 
wasn t very actively litigated. But then it took on significant 
proportions later on. They hired an attorney named Todd Withy 
[spells], who was sort of a classic civil rights attorney. He 
was a big, tall, angular guy who I think had grown up in 
Berkeley, and who always had a smile on his face, and by golly, 
he was going to change things. And he did, he was very effective 
in his way. 

They were able to show on a statistical basis that there was 
enough of a track record to allow an inference to be drawn that 
in fact, there could have been discriminatory practices or 
policies or procedures or something. They didn t prove it. It 
would have been difficult to disprove. It was very intricate and 
very hard stuff. 

What we ended up doing, when we realized where we were in 
that case, was to say, "We think we could win at trial, but it 
will be ugly, and it will be divisive. We could lose at trial, 
and that might be even uglier and more divisive. That s sort of 
a Hobson s choice, and maybe the better thing to do is to find a 
way to resolve this case without getting to that endpoint that 
says, Yes, by golly, there was fire indicated by that little bit 



93 

of smoke, or No, by golly, it was a puff of smoke and there was 
no fire." I m still convinced that if you had you see, East Bay 
MUD is a pretty big organization, but it s not anything like the 
state government or the federal government or something. And so 
you can find that there will be one or two incidents that might, 
from a statistical standpoint, end up taking on enormous 
significance. And we had some of that. 

The main statistical results looked pretty good, but there 
were some things on the edges that looked not so good, 
aberrational or whatever, but it was out where we had the onesies 
and twosies. We had special counsel on that case, a firm called 
Carroll, Burdick, and McDonough [spells] . Our lead counsel was a 
woman named Betsy Leavy [spells], and occasionally a man named 
Chris Burdick, who was one of the main partners, came in. We had 
the task of going back to our clientthe board of directors, 
management --and showing that, no matter how this case proceeded, 
it was going to be potentially inflammatory and extremely 
divisive for a workforce that didn t need division at that point, 
it needed healing. If there was anything that needed to be 
healed, we needed to heal it. We didn t need to make it worse. 
We didn t think things were all that bad. 

And so we did settle the case, and the district paid out-- 
I ve forgotten the numbers I think it was around $800,000. By 
this time we had set it up as a class of district employees who 
were primarily in the blue-collar workforce. We had a settlement 
fund administered by a trustee. We also paid out hundreds of 
thousands of dollars in attorneys fees to the plaintiffs, and we 
administered the case in the most professional way we could, and 
tried as best we could to not run from it but to say, Okay, we 
are not going to battle this out and leave anybody s blood on the 
courtroom steps. Because that s not healthy for an institution 
that is as small as East Bay- -for any institution. And although 
it may seem a large one, it s a real small one when you re 
fighting with your own family, and that s kind of how it was 
viewed. 



94 

I give a lot of credit to the Jean Love Smiths and the Jerry 
Gilberts and the board of directors, frankly, for being able to 
sort of lead the district through that tough time. It was a very 
tough time, real hard stuff. Real hard stuff as a lawyer, real 
hard stuff as a manager, probably hardest stuff as a director. 
In the final analysis, I think the directors think that they were 
well served by the legal process, even though they didn t like 
having to pay out all that money to Todd Withy, but that s the 
way civil rights litigation works and they realized that. 

Now, I suspect that if you were to go back to that 
workforce, and you were to go to today s Frank Ervings and Stan 
Mclntoshes--they re both retired nowyou would probably find 
that the things that were done that were affirmative steps that 
were put in, in addition to paying out money, there were all 
kinds of tests that we applied and tracking mechanisms we 
.established and all that, and training programs and the full 
gamut of things you can do--I think you would find that the 
frequency and the severity of the complaints that are related to 
diversity of any sort has probably been significantly diminished, 
and I think it s in part because the utility district learned a 
great deal through that trying time. 

I m saying all that on the basis of having been gone three 
and a half years, so I may not know all of what I speak. I guess 
it s almost four years now I ve been gone. But my sense is that 
it s a healthier workforce, healthier workplace as a result. 
That s not to say it s entirely healthy; I know they have other 
sets of problems, but I think that that one has been, or 
hopefully has beenit s never taken care of, but it is being 
attended to better. 



LaBerge: So you were never in court on this. You were always-- 

Maddow: Oh, we were in court, but it was not in a full-blown trial. The 
judge was Lowell Jensen, who was formerly the district attorney 
of Alameda County and is on the federal bench. We spent a fair 
amount of time with him. A good deal of the work with regard to 
these statistical things was done by the magistrate, a man named 



95 

Wayne Brazil. We had significant amounts of activity. We had 
experts and statisticians and all those kinds of things that you 
do. So there was a lot of litigation activity, but it never went 
to trial; it was at that point, before we were going to get to 
the point where we had to go to trial, significantly before that, 
that we said, "There s a better way." It was a very difficult 
settlement to negotiate, but we made it work. 

LaBerge: Did you initially start being the trial attorney for it and then 
hire--? 

Maddow: No. At the time that I became general counsel, the case was 
already underway, and Frank Howard had been the lawyer in the 
office who knew more about it than anyone else. The legal work 
was primarily being done by outside counsel who were specialists 
in this type of law, and Betsy Leavy was the lead lawyer. Betsy 
was--I think very highly of her. I still consider her to be one 
of the best lawyers I ve ever known. Betsysome people took a 
dislike to her, because Betsy has a thick East Coast accent- - 
Betsy is the kind of speaker who wouldn t need a microphone to 
address a political rally. She has a voice that can be loud and 
harsh and all that stuff. She is not a harsh person or a loud 
person, but for some people, she was a little off-putting when 
they first met her. That took some getting used to. 

I loved working with Betsy, because by golly, she was 
direct, she was straightforward, she could cut right to the 
chase, and she was a real fine lawyer. And she had a number of 
younger people who worked with her who were also very good 
lawyers . 

When I came to the office; the case was still a little on 
the quiet side. It heated up again after I had been in the 
office for a while. Frank was still there, but then Frank 
retired not too long after I had become general counsel, and I 
pretty much took the lead myself. That was in part because we 
were a small office at that time and it had to be done, and in 
part because I was aware of the sensitivity of it and I thought 
it demanded my attention. 



96 



Human Resources Department 



LaBerge: Maybe I am beating this to the ground but I have one more 
question. Was it your responsibility or was it the human 
resources office in general? 

Maddow: You mean the case? 

LaBerge: No, not the case, but just affirmative action-- 

Maddow: Oh, it was human resources. 

LaBerge: But they would come to you with questions or problems? 

Maddow: Yes, yes. And for a very long time, the utility district had 

been looking at the legal aspects of the affirmative action and 
the whole range of employment law. Frank was pretty good in that 
area. After a while, we had another lawyer, Nancie Ryan, who 
went to work for the district in 1981. When she first came 
there, she was Nancie McGann, and she went to work there April 1, 
1981. She s now I think the assistant general counsel. Nancie 
was pretty good in these areas, but we had these outside lawyers, 
the Carroll, Burdick, and McDonough firm as I say, and in 
particular Betsy. They d worked with the district for a long 
time. The district had worked with a consultant named Dick 
Biddle [spells], whose work was highly regarded in these matters. 
Later some other analytical approaches for this kind of work came 
along, but for what he did at the time he did it, it was valuable 
work for the utility district, and the human resources people 
worked closely with him. 

On the affirmative action in contracting side, that took a 
little different twist. That really got its start, I guess I 
would say, in the early eighties, when a woman named Artis Dawson 
[spells], she came to the district right after Jerry Gilbert 
became general manager. There was quite a dispute when Jerry 



97 

became general manager. The board was divided. There were some 
other candidates who were being considered and could not get four 
votes. Ken Simmons was the fourth vote, and had his own ideas. 



Jerry was not a candidate at that time. He was in private 
business. But for some reason, right toward the end of the 
board s labors looking at some other candidates, Jerry knew one 
of the directors, I think, and there was some contact--! don t 
know who initiated it. Jerry became known to the board as a 
candidate. They knew Jerry; Jerry was quite well known in the 
water industry. Ken Simmons wasn t real pleased with that, and 
in fact, at one point in all of that, Ken actually filed a 
lawsuit against the district in regard to the manner in which, the 
board of directors was going about employing its new general 
manager. And Jack Reilley probably talked about this. 

LaBerge: No, he didn t. 

Maddow: Well, it was an issue that I don t know all the details of. It s 
something that Jack would have been much closer to. But in 
effect, some of the things that Jerry Gilbert tried to do and did 
in the first period of his tenure as general manager were 
reflections of Ken Simmons efforts to diversify the workforce at 
the top of the organization. And Jerry hired a series of, I 
think it was six people, in a capacity known as something like 
executive assistant to the general manager. And the idea was to 
bring in people who would be sort of new manager embryonic 
managers, sort of. People who were from outside the organization 
or who were making a change in their career field within the 
organization or something like that, and hopefully would bring 
some diversity. 

Artis was one of those people. She had previously been, I 
believe, the executive director of the Alameda County- -hmm. It 
was not the parole board, but it was, I think, something like the 
Criminal Justice Advisory Board. 

But she worked with Lowell Jensen, who was D.A. at the time, 
and she was the person who- -she was like thirty years old. And 



98 

Jerry brought her in, and one of the things he had her do 
initially was to work in the operations and maintenance 
department working directly for or with the department manager to 
deal with labor negotiations issues, because that s where most of 
the workers were and that s where most of the workforce issues 
came up. So Artis observed the labor negotiations in 1982 and 
all that. Not too long after that, she ended up being appointed 
to a position in the human resources department where she had 
responsibility, among other things, for some aspects of the 
affirmative action program. 



Minority and Women-Owned Business Enterprise Office 



Maddow: Eventually --not eventually, but almost right away, I guess--she 
was also given the responsibility for the minority- and women- 
owned business enterprise program, the other half of affirmative 
action. And Artis still has that responsibility today, as I 
understand it. I don t exactly know the position she occupies 
now. She s a department manager. But under her prodding, 
pushing, whatever- -she was the one who implemented the Ken 
Simmons policies, the things that he had ramrodded. She has had 
a number of people who have worked for her in that capacity, and 
one in particular is a woman named Audrey [Rice] Oliver, who is 
now quite well known as a consultant. As a matter of fact, if 
you read the business section of yesterday s San Francisco 
Examiner- -actually, there s a section called "The Bay Today" or 
some thing -- 

LaBerge: Yes, it s a new special section. 

Maddow: There s a write-up about three women, successful business 

entrepreneurs et cetera, and executives in the Bay Area. Audrey 
is one of them, and for a while, she was East Bay s minority and 
women business enterprise coordinator, working directly for 
Artis. Audrey has close contacts with the Clinton 



99 

administration, and she is reputed to be a candidate for mayor of 
Oakland. 

LaBerge: I went to one of their community meetings, and I was very 

impressed. They have three or four a year, with statistics and 
everything, it was very impressive. 

Maddow: Oh, yes. It s run now by a woman named Beverly Johnson who first 
worked at the district as an engineering aide. I remember 
working with her when she came there and was carrying drawings 
around, and lo and behold, she got so interested, she went back 
to school and got a degree. I don t remember the stories that 
led to her ending up as the MBE coordinator, but she s a real 
favorite of mine. I knew her when she was probably twenty years 
old working in the engineering department. 

But people like that have fought long, hard fights. And 
you ve got to give them credit. And the institution is better 
for it. I really like working with those kinds of effective 
people, and they wereas I say, most of the time, those 
functions were run through the human resources department. After 
a while, Artis moved over to run the district s public affairs 
department, and in that capacity, she took minority- and women- 
owned business with her. But affirmative action having to do 
with the workforce stayed back in human resources . 

LaBerge: We re almost out of tape, so should we end there? 
Maddow: Let s end here. 






100 



District s Response to Drought of 1976-1977 



[Interview 3: March 7, 1997] ## 



Middle River Pumping Plant 



LaBerge: We re going to talk a little bit about how the district responds 
to shortages. 

Maddow: I thought we might talk about a couple of aspects of what 

happened first in the seventies and then a little bit in the 
eighties. Until the drought period in 1976 and 77, the utility 
district had never really faced a significant problem with 
shortage of water, but the combination of very dry years, 76 and 
77, resulted in very serious problems for the utility district 
and for many other utilities, many other water suppliers, and 
resulted in some interesting things, both from a legal 
perspective and from an institutional perspective. I thought I d 
touch on the water supply end of the equation and then a little 
on the customer end of the equation. 

LaBerge: Good. 

Maddow: On the supply end, the utility district was facing unprecedented 
shortage of supplies. Up until the time of the 76- 77 period, 
the utility district thought it had a greater safe yield from its 
project than it now knows that it does, because 76 and "77 did 
happen. I don t remember all the technical details or the 
numbers, but suffice it to say that after 1976, the utility 
district entered 1977 in a somewhat more precarious position from 
a water supply reserve standpoint than it had done in the past, 
and of course, 77 was an even worse year. So the district had 
to look at a variety of arrangements to try and cope with that 
shortage. It looked at all kinds of things, including, for 
example, figuring out a way to take water out of Camanche 
Reservoir, which isn t connected to the domestic water system, 
and get it down to the East Bay. 



101 

Eventually, instead of doing that, one of the things that 
the district did was to build a pumping plant out in the Delta on 
an island called Woodward Island. The pumping plant was adjacent 
to the intersection of Woodward Island levees and the district s 
aqueduct. The purpose for that pump station was to let the 
district take water directly out of the Old River- -actually, it 
was out of the Middle River. Woodward Island has Old River on 
one side and Middle River on the other side. 

LaBerge: Old River being the name of the river, not--? 

Maddow: Old River is the name of the river, and Middle River is the river 
on the other side of the island. The district was on the Middle 
River side of the island, because there was a little easier 
access there for construction purposes. The district built this 
pump station, which pumped water which was made available to the 
district under its federal water supply contract. The federal 
contract was written to provide for the district to get water out 
of the Folsom South Canal, but in the drought period, the 
.district negotiated an emergency change in the contract terms, 
and the federal government and the State Water Resources Control 
Board allowed the district to take some of the water under its 
federal contract at Middle River. 



LaBerge: And this is the federal contract for the American River water? 

Maddow: That s correct. It s a contract that had been signed in 1970, 
and that contract has a specific point of delivery along the 
Folsom South Canal up near Grant Line Road in southern Sacramento 
County. What was done in the drought period was that the 
district and the bureau agreed upon an emergency change in the 
point of delivery of that water, and the State Water Resources 
Control Board consented to allowing the water to be in essence 
rediverted, federal water to be rediverted in the Delta at a new 
point of rediversion. That s a water rights term of art. 

And so the district quickly built this remarkable pumping 
plant and pumped Delta water into the district s #2 aqueduct, 
which was in essence valved out of serviceyou could no longer 



102 

get water from the Mokelumne , from Pardee into East Bay via that 
aqueduct . 



Contra Costa County Supply 



Maddow: But at the same time the district was doing that, it was 

participating in a variety of other arrangements involving other 
utilities to try and move water in this drought circumstance. 
And two of them I have always thought were very interesting from 
the standpoint of both institutional arrangements and legal 
considerations for moving California water around to meet needs . 

As you know, the district has three barrels to its Mokelumne 
aqueduct, and the Middle River pump station was built to pump 
Delta water for the district at Middle River via this special 
pumping plant. On the other side of the aqueduct right of way, a 
second pumping plant was built. And this one took water out of 
Middle River, pumped it into the utility district s #1 aqueduct, 
and moved it just a few miles through- -across Woodward Island, 
and then across the island just west of there, which I think is 
called Roberts Island, something like that, and deposited the 
water in what was called Indian Slough. Indian Slough is 
hydraulically connected with Rock Slough, which is the point at 
which the Contra Costa Canal takes water for the Contra Costa 
Water District, which serves about 400,000 people in central and 
eastern Contra Costa Countysort of the other half of the county 
that East Bay MUD doesn t serve. 

Now, Contra Costa has a federal water supply contract, and 
in effect, could still get plenty of water through its contract. 
It s just that because of the dry period we were in, the quality 
of the water in the western Delta was quite degraded, the salt 
content was very high. And, from a legal perspective, Contra 
Costa was able to exercise some rights that it had against the 
state, regarding salinity control. The federal government built 
its project, the Central Valley Project, which included the 



103 

Contra Costa Canal, prior to the time the state came along and 
built the State Water Project. State rights are junior to the 
federal rights, et cetera. 

Contra Costa had always asserted that it had a right to 
higher quality water for drinking water purposes than the feds 
were prepared to deliver, but the state had this junior water 
rights priority. And so Contra Costa had many years before been 
able to negotiate to a point, or litigate to a point, where the 
state in essence had to make a commitment to guarantee the 
quality of the water at the intake to the Contra Costa Canal. 
And so at the same time the utility district was building the 
Middle River pump station for its own water supply, the state 
came along and built a pump station on the other side of the 
right of way to use the district s #1 aqueduct to move water from 
Middle River--! think it was about eight miles west in the Delta- 
-to deposit it in Indian Slough to sweeten the quality of the 
water there so that Rock Slough would not be sucking salt water 
and the people of Contra Costa County served by CCWD would still 
be able to use their water supply. 

So there were two relatively unique arrangements that were 
made virtually simultaneously, and in a couple of days. I mean, 
the arrangements were worked out in just a few days. The 
construction cycles were very short, but in particular the 
institutional arrangements took just a very brief period of time. 



Marin County and the Great Circle Route 



Maddow: But the most surprising part of all was that at the same time, 
there was what I call the "great circle route" that also was 
going on. The entity in the Bay Area that was in the worst shape 
from a water supply standpoint at that point was the Marin 
Municipal Water District. They take their water supply from the 
rainfall that falls on the slopes of Mt. Tamalpais, and of 
course, during that cycle, there wasn t much of that, and they 



104 

were really up against it. The great circle route was just a 
really remarkable arrangement that got worked out in a very short 
period of time with some very simple agreements . 

The Metropolitan Water District of Southern California 
recognized what was going on, and they agreed to forego 
deliveries of some of the water to which they were entitled from 
the State Water Project. The state then pumped some of that 
water that was contractually bound for Metropolitan, they pumped 
it out of the Delta via the Delta pumps, the regular State 
Project pumps, and pumped it into what s called the South Bay 
Aqueduct . 

Now, in order to get the water from the Delta to Marin 
County, it was going to take some remarkable arrangements. There 
are no hydraulic connections to any of those places. They had to 
fashion a very special connection between the South Bay Aqueduct 
and the water supply system of the City and County of San 
Francisco, which is the wholesaler of water to the City of 
Hayward. San Francisco managed to find a way to get the water 
that they got out of the South Bay Aqueduct to the City of 
Hayward. The City of Hayward abuts the service area of East Bay 
MUD, and so there are some pipe connections that were made 
between the Hayward system and the southern end of the East Bay 
MUD system. 

At the northern end of the East Bay MUD system, a pipe was 
thrown across the Richmond-San Rafael Bridge, the Richardson Bay 
Bridge. In essence, one lane of that bridge was sort of 
sacrificed to become a pipeline, and it looked like it was what 
people used to call invasion pipe, I think. As I recall, it was 
just steel pipe, unlined, uncoated. East Bay MUD built a pump 
station quickly near the base of the bridge. 

So the great circle theoretically involved Metropolitan 
giving up some water, the state pumping that water to San 
Francisco, San Francisco moving it to Hayward, Hayward moving it 
to East Bay, and East Bay moving it through its system to Marin 
County . 



105 

Now, if you were to try and sketch out that arrangement and 
then do all the contractual ramifications of it, et cetera, you 
would take months. But this deal was done in about a day, and it 
was--I wrote a couple of drafts of what ultimately became the 
contract. My recollection is that it took just a very few pages. 
I think the arrangements that allowed Contra Costa to benefit 
from East Bay s #1 aqueduct, I think that was a three-page 
agreement. And it seems to me that the one involving the great 
circle route was about six or eight pages, something like that. 
And I used to jokingly say that we worked all these things out on 
the two sides of one envelope. 

But the thing that amazed me was that in these tough times, 
entities which had not always gotten along all that well made 
these things work, and I think we did it all legally, and I think 
we did it all appropriately. I don t think that there s anybody 
who ever felt that they had taken a terrible financial beating or 
anything like that as a result of it. The people of Marin County 
voted to pay their share of the construction costs, et cetera, 
out of their current revenues. They did not go into debt to do 
it; they took an enormous economic burden on in a short period of 
time, because there was a lot of construction that was involved. 
But all in all, these systems worked. 

Now, I don t think you could ever find a molecule of water 
that went from the Delta around through San Francisco and East 
Bay and all that to Marin. What basically happened was the 
people of Marin County were getting water out of East Bay MUD s 
San Pablo Reservoir, I imagine. But for every drop of water East 
Bay sent to Marin, it got that much water in return, and most of 
the water that it was getting was basically San Francisco water. 
So from a water quality perspective, it really did not make an 
adverse impact on East Bay, which has always prided itself on its 
pristine water supply. 

However, pumping that American River water out of the Delta 
at that Middle River pump station did have an adverse impact on 
East Bay s water quality, because that water was dramatically 
different in quality from what East Bay had in storage, and from 



106 

the water it was still getting out of the Mokelumne via its #3 
aqueduct. So my recollection is that operationally, the utility 
district decided to put all of that water, all of their Delta 
water, into San Pablo Reservoir, rather than spread it throughout 
the system. And someone would have to check this, but I believe 
that that s the way it worked operationally. 

Getting that lower quality water through the East Bay MUD 
system presented a bit of a problem, because the utility 
district s treatment works are not set up to cope with that lower 
quality Delta water. But as it turned out, in what perhaps was a 
lucky coincidence, or perhaps it was great planning, I m not sure 
which, shortly after this drought cycle ended, East Bay had to 
rebuild San Pablo Dam. After the 1971 earthquake down in Los 
Angeles, the state Division of Safety of Dams required a new form 
of dynamic analysis of earth-filled dams like San Pablo, which is 
a very old dam. San Pablo needed to be rebuilt for seismic 
safety purposes. After a lot of engineering work, it was 
determined that the only way to rebuild it was to take it out of 
service. And so in effect, San Pablo Reservoir was drained 
shortly after the drought period, and I suspect that much of that 
lower quality water eventually just got dumped to the sea, as San 
Pablo Reservoir was being taken out of service for that 
reconstruction job. 

Again, there are facts there that I m probably forgetting or 
oversimplifying, but I ve always been kind of fascinated by the 
fact that we overcame a lot of legal hurdles and obstacles, a lot 
of institutional biases , a lot of regulatory proceedings , and did 
a whole lot of stuff in a big hurry on the supply end to try and 
share the water that was available. I have never seen anything 
quite like it since. It took a lot of doing and was a lot of 
fun. 

From a legal perspective, I don t think we broke any great 
new ground there. We did a lot of things by virtue of very 
simple, very straightforward contracts. But I think what we 
demonstrated was that, when the parties are willing, and when 
there is an obvious need, that water can be transferred very 



107 

efficiently and effectively to meet crying needs. Of course, the 
trend that we re moving to in California water law, and western 
water law, is that transfers of water need to be facilitated. 
It s one of the points of the Central Valley Project Improvement 
Act, it s one of the points of efforts to develop and improve the 
water transfer legislative system, et cetera. I would say that 
to some degree, at least my thinking, and I think the utility 
district s thinking, about what can be done with regard to 
transfers helped to get shaped in that period. 



Customer Usage during the Shortage 



Maddow: Let me switch for a moment now to the- -I call it the customer 
side of the equation. East Bay didn t have enough water to go 
around, and needed to do something about it. There weren t a 
whole lot of models for how to do this. We in effect needed a 
way to ration water, which was the term that we used internally, 
although it was not a term that the district wanted to use in its 
publicity or anything like that. It was not intended to be it 
wasn t supposed to have the feel of a mandatory imposition by the 
government. Part of the reason for that was the utility district 
did not have police power, and therefore it could not really 
impose a real rationing program. 

Instead, the choice that was made was to do what probably 
was the only thing the utility district could have done to try 
and get its customers to reduce water. That was to do as much as 
you could to educate your customers about the nature of the 
problem, and then to deal with rationing through a pricing 
mechanism, and let the fare box, the marketplace, do some of the 
control . 

That s a difficult thing to do. It hadn t been done before 
by this utility. It had been done by Marin Municipal, and I 
found myself sort of going to school on the experiences and the 
ordinances and programs written by the man who was then the 



108 

lawyer for Marin Municipal, a man named Tom Thorner. Tom had 
helped develop some pricing structures for Marin, which of course 
was receiving the effects of water shortage, of no precipitation, 
a year faster than everybody else, because they didn t have the 
kind of storage that people like East Bay did. 



Will Rationing Work? 



Maddow: So we looked at the kinds of things that Tom had done. In a 

nutshell, the utility district management and board gave the task 
of developing a rationing program that would work to the man who 
was at that time the director of engineering of the district. 
His name was Walt Anton [spells]. He s dead now. And to the 
district s data processing person, a man named Larry Qvistgaard 
[spells]--! think that s right and to the district s customer 
services manager, a man named Bob Eaneman [spells], an Old Blue. 

LaBerge: I ve heard his name. 

Maddow: Yes, he s been around here forever, and was very active in 
Berkeley service clubs and things like that. 

But our task was to come up with a program that would work 
across the board for the district s customers. It was all 
premised upon the idea that there would be across-the-board 
percentage cutbacks for all customers in an effort to achieve an 
overall 25 percent reduction in the consumption of water by the 
district s customers. 



LaBerge: When you say "our task," was the legal department part of this 
group? 

Maddow: Yes. I was the fourth person, and I was the one who was always 
the scrivener, and I found myself sometimes having to be the one 
who would either be the architect or the gatekeeper. I would 
sometimes find myself saying, "You ve gone beyond where I think 



the law will let you go, 
thing . 



109 



and it was that kind of an interactive 



The four of us worked well together. We didn t always agree 
on things, but we worked well together. We worked hard, and 
worked some long hours. 

LaBerge: What were the legal issues? 

Maddow: The legal issues had to do with what you could do in the absence 
of the police power, what could you do from a rate -making 
standpoint to try and cause customers to reduce their consumption 
in a manner which would afford them due process and which would 
observe the constitutional provisions regarding equal protection. 
And it was equal protection that became the big issue when we 
first came up with the program. 

The board of directors had thought, and the management of 
the utility district had thought, that the way to do this was 
simply to start imposing across-the-board, uniform cutbacks for 
everyone. And so the first theory was, do it on a percentage 
basis. Look at the single- family, residential customers, and the 
multifamily, apartment customers, and commercial, and industrial, 
and just cut them all back. And you might have different 
percentage cuts between classes, but give everybody in each class 
the same kind of cutback. So that was the proposal that the 
staff made. 



One of the critical legal issues was that the utility 
district has a statutory notice provision with regard to how it 
makes rates . It can only make rates after the general manager 
gives the board a report and recommendation on what the new rate 
structure should be. Then there is a provision that requires a 
public hearing, and there are some time limits on when the public 
hearing can be held and when the board can act. 

So we went through all the notice stuff, and put out this 
program, and went to the public hearing. I d have to go back and 
check the records, but I think the public hearing--! think this 



110 

was one that was held in the auditorium at the Kaiser Center in 
Oakland. I think that s right. In any event, we got a roomful 
of people who came in and said, "Wait a minute. I have been 
conserving water at my home for a long time. I have been 
redoubling my efforts during the drought of 1976, and here you 
are coming along in 1977 and telling me I m going to get a 
percentage cutback? That s not fair. You re denying me my 
rights. I m not being equally protected. All of my good works 
in the past will have gone for naught, because now I have to cut 
back from an already degraded base," and all that. 

Well, the board of directors decided that that percentage 
cutback. plan wasn t going to work, and so they directed the staff 
to come up with an alternative. As I recall, that hearing was on 
a Tuesday. And it went until quite late in the evening, which 
was rare for the utility district, which normally has its board 
meetings in the afternoon, but never in the evening. That one 
was in the evening. 



Developing Usage Allotment 



Maddow: So the team of us went back to the drawing boards, but it was 

primarily Mr. Anton who went home, and I am convinced he stayed 
up all night working on this, because he came to work in the same 
suit the next day. I m also convinced that, although he changed 
his suit the next day, that when he came to work on Thursday, he 
had not been to sleep yet. He developed a rationing program 
which he first had to sell to me and convince me that we could 
make it work from the standpoint of due process under the law and 
equal protection. 

Basically, it was a system that provided for establishing an 
allotment for each single-family residential customer. And the 
way we established the allotment was to find data which allowed 
us to determine in essence how much the typical single-family 
residential consumer would use for inside- the-house usage, and 



Ill 

establish an allotment based on basically what we called health 
and safety needs that reflected those inside-the-house usages. 
And then, everything over and above that allotment, we suggested 
that the board should determine was in the nature of outside use 
or more discretionary use, not health and safety related. So we 
wrote some measures that said basically, if you use water within 
your basic allotment, the price really won t changeat least: not 
as much- -but if you use water above your allotment and get into 
those discretionary areas, the further you go into the 
discretionary use area, the more expensive it s going to be. So 
we adopted what was called a tiered rate schedule, and it was the 
first time the utility district had ever done it. 

The theory of our tiered structure was that we would be 
still trying to achieve the same 25 percent reduction in water 
use. The board of directors was to meet the following week. The 
staff spent literally three straight days without a break trying 
to fit this together, trying to make it work, convincing top 
management to let us take it to the board. The board scheduled 
committee meetings for that weekend--! think it had a finance 
committee and an engineering committee meeting, and the staff 
made presentations to both committees so that the committees at 
least had a sense of what was going on prior to the continuation 
of the public hearing, which had been carried over from the 
previous week. And we went back out the next Tuesday afternoon, 
I think, and the board adopted this rate structure. 

Now, from a legal perspective, I was fairly comfortable with 
it, because I thought it had a rational basis, that it was an 
appropriate legislative action by the boardthat s what the 
board is doing when it adopts rates, exercising its legislative 
function- -and I thought that we had a defensible nexus between 
the objective- -water consumption reduction- -and the mechanism 
that we were using. I frankly thought that we d covered our due 
process bases and our equal protection bases through the way in 
which we d arrived at it and I thought the allotment system would 
pass equal protection muster. 



112 

What we didn t do, and frankly, we got trapped by the legal 
requirements with regard to notice, we didn t reckon on the 
drought getting deeper than it was when we started. Because when 
we started and when the general manager made his initial 
recommendation, we were focusing on a 25 percent consumption 
reduction goal. When we finished, the snow surveys for on into 
1977 had come in, and there was less water than we had hoped, and 
as a result, the district adopted a 35 percent consumption 
reduction goal. And in fact, the consumption reduction that was 
achieved by district customers was 38 or 39 percent below what 
would have been anticipated in a normal year for that period. 

But the rate structure was calculated on recovering the 
revenues that youstaying revenue -neutral. In other words, if 
you start from the premise that a utility is basically a fixed- 
cost enterprise, you ve still got to recover those fixed costs, 
plus the extraordinary costs of the drought, through the fare 
box, and if you re trying to get a 25 percent reduction in 
consumption, that translates to needing a 33 percent revenue 
increase just to stay even, if you just think about it for a 
minute -- 



LaBerge: Right. 

Maddow: And so that s how the rate structure had been conceived. But 

then, that 25 percent consumption reduction goal increased to 35 
percent, but we had already gone so far into the rate process 
that the board couldn t back out, in essence. So the rate 
structure that was adopted was aimed at a 25 percent revenue- 
neutral program, and in fact, the district lost a lot of money. 
It really ate up its financial reserves during that period of 
time, because the rate structure was not consistent with the 
ultimate consumption reduction goal or with what actually 
happened. 

Recovering from that revenue drain was a tough issue for the 
utility district after it came out of the drought, because you ll 
remember that at about the same time, Proposition 13 was being 
passed. We were in a period of sort of taxpayer and rate-payer 



113 

revolt . And so the utility district went through some very 
difficult economic times after that that were kind of triggered 
by our getting trapped by the notice provisions of the Municipal 
Utility District Act [1921] 1 in terms of this revenue program. 

But the program worked. The main reason it worked, I am 
convinced, is not the fare box measure, but it was public 
education and public understanding of what was going on. The 
ethic of conservation took hold, and I think it s still evidenced 
in the utility district. The principle of tiered rates as a 
consumption management tool became established at the utility 
district. It was used again in the 1980s, and now it s become 
part of their permanent, nondrought rate structure. It s very 
controversial, as I think you probably know with this sort of 
east- and west-of-hills divide 



LaBerge: Yes. 



East vs. West Argument with Examples 



Maddow: And that relates back to what I said in an earlier interview 

about how the utility district is now much more subject to ward- 
versus-ward debates, and this tiered-rate structure debate is the 
principal subject over which that takes place. And the reason 
for it is that, in establishing the allotments or the basis for-- 

II 

Maddow: --the more you use, the more you pay type structure. Where are 
the knuckles in that rate curve going to occur? And that gets 
into a big debate about larger lots versus smaller lots, and 
warmer climates versus [colder] and all of that. And that has 
become very much an east-west thing that the utility district is 
still dealing with, and has had litigation over, and now there 



California Public Utilities Code, Section 11500 et seq. 



114 

are legislation efforts, et cetera. But in many respects, it s 
sort of rooted back in the 77 drought management rate structure 
that we put together. 

LaBerge: Did you get those objections at the public hearing too? 

Maddow: In the seventies, we got some of those objections. One of the 

people who was one of the loudest objectors was a gentleman named 
Dean Lesher, who was a newspaper publisher out east of the hills. 
Mr. Lesher had a very large property, and it was lushly 
landscaped. He was bitterly angry at the fact that he could 
conceivably lose some of his landscaping or what have you. 

The district was aware that there would be cases like that, 
and so we built in a variety of what I used to call safety 
valves, which would allow people to appeal for an exception, so 
that they could get a larger allotment. For example, more people 
in the house would mean more showers, more toilet flushing, et 
cetera, and therefore, you could get a larger allotment for that. 
But you could also in some circumstances get a larger allotment 
if, for example, you had permanent crops or some such thing that 
might be affected. I don t remember that that was one, but 
something like that. 

Thousands of people requested exceptions, and Bob Eaneman 
put an extra desk in his own office where Gloria McKnight helped 
him process all of the extraordinary paperwork. I think Bob also 
ended up with blood pressure problems--he told me that he bought 
his own blood pressure monitor during this hectic period. 

And Mr. Lesher wanted exceptions for his ornamental trees 
and things like that. So there were some pretty heated arguments 
about those issues. But remarkably, there was virtually no 
litigation. I think Bob Eaneman had a couple of small claims 
court actions, but we never had a superior court or muni court 
case. I think Eaneman s cases were collections-type cases, or 
someone attempting to recover something in small claims court for 
some minor damage or something like that. But we literally had 
no litigation over that rate structure in the seventies, which I 



115 

always thought was quite remarkable, because it was so new and it 
was such a dramatic change from the past. I like to think it was 
because, at least to some degree, the staff work and the legal 
work was good work. I can tell you that it must have been okay, 
because I think it still serves as the model for the way people 
do it in lots of places. 

But that was the history of it in the seventies. There are 
a lot more details that get kind of interesting, but 

LaBerge: Well, do you have some anecdotes? Like, whatever happened with 
Mr. Lesher? 

Maddow: He made a lot of noise. At one point, someone told me that he 
was buying water by the truckload someplace. I don t believe 
that he ever actually threatened a lawsuit, but I guess it was 
thought that he was the kind of person who might well sue over 
those kinds of issues. Mr. Lesher was a sort of a crusty 
gentleman. I met him a couple of times, and I found him to be 
really fascinating, because I think in his own way, he was 
brilliant. There were some parts of his thinking that I think 
may have been a little misdirected, from my point of view, but 
more than anything, it was a loud fight, and one which featured 
him getting in his own newspaper and that sort of thing. 

I don t remember any other great anecdotes right off the top 
of my head. I ll have to think about that a little bit. 

We did, during that period of time, have a really 
unfortunate incident --shortly thereafter, I guess. We had a 
couple of cases where the newspapers and the electronic media 
were looking for examples of people who were using so much water 
that they were going to be either shut off, or have what was 
called a flow restrictor placed in their meter. If someone was 
using too much water and continued to do so, the district was 
loathe to start cutting people off, because it didn t have police 
power, but it did have a policy, which we wrote into the 
regulations, which said that if you use way too much water and 
you continue to do it and don t abide by the allotment program, 



116 

we re going to put a flow restrictor which will allow you to get 
enough water for health and safety purposes but no more. 

And there was an unfortunate incident in which the first 
time a flow restrictor was going to be installed, and the press 
wanted to go along, of course, it turned out that the person was. 
a person who was somewhat unbalanced, and it was a very sad case. 
I was really pleased to see that the press chose to not report 
it. It was a difficult case, social service agencies became 
involved later, et cetera. 

It was not too long after that that the utility district, 
shortly after the drought, had to deal with the case of the 
famous Richmond water lady, who thought she was washing away the 
sins of the world by running water from every tap that she could 
all the time, and saturating her home, water running on the roof 
and all over the property, et cetera. She was an elderly person 
who had been a schoolteacher, as a matter of fact, and I think 
that in her later years was just a little unbalanced or 
disturbed. That was a case where the police became involved, and 
the courts, and that sort of thing, and flow restrictors were 
installed, and an effort was made to try and control it, 
basically with the assistance of county mental health 
authorities, et cetera. But it was tied back to whether or not 
water was going to be available, and so I guess that s an 
unfortunate anecdote. 

I do remember one other anecdote about the whole business 
about the construction, and I can t verify this, I can just tell 
you the story. When the pipe was being put across the Richmond 
Bridge, it was as I say, it was just lengths of steel pipe. 
Right in the middle of the construction project, in the wee hours 
of the morning, a man was in a truck, and he was going to go 
duck-hunting, and I guess he fell asleep as he was driving across 
the bridge. His car veered to the right and struck a stack of 
this pipe. The way the story has been told to me by two 
different people, one of these lengths of pipe came right through 
the windshield of his car, through the rear window of the car, 
and out the back part of the camper shell. When his car stopped, 



117 

it was there with this big piece of pipe, with him on one side of 
the car and his dog on the other side, and neither one of them 
with a scratch on them. I always thought to myself, Somebody s 
going to get sued over this, but I don t think anybody ever was, 
so we got very fortunate in that one, I guess. 



Public Hearing on Rates and Board Support 



LaBerge: Well, when they had the public hearing, were you one of the 
persons up there answering the questions? 

Maddow: Yes. And it was a situation in which Jack Reilley, of course, 
was still the general counsel at that time, but I had done most 
of the work. For at least one of the hearings, the big hearing 
on the rates, I know I was sort of directly in the line of fire. 
And the lawyer s role was to explain and to answer questions and 
that sort of thing. The board took most of the heat, and it was 
hard. It was something they had not been subjected to before, 
and they didn t like it. But I thought that they actually did a 
pretty good job. 

And when they came out of that hearing and when it was time 
to give the staff direction, my recollection is that the board 
went at it in a very professional way. They could very easily at 
that point have run for cover or looked for political ground to 
protect or that sort of thing, but they were looking at what it 
was going to take for the utility to get through this grave 
crisis. And I have to say that I thought it was handled--! 
thought it was sort of one of those shining hours for that board. 
There were occasional outbursts or flashes of anger or emotion 
from directors , but that is to be expected from elected officials 
at tough times . 

They were aware of this problem with revenues. They were 
aware that the utility district was facing economic problems down 
the line, but they were not about to exacerbate a difficult 



118 

situation by ratcheting up that revenue structure after they had 
already said, "This is what it s going to be." So that took a 
lot of courage, and I think that was a good thing to have done. 

LaBerge: Do you remember who was on the board then? 

Maddow: I believe the chair of the board at that time was a man named Ted 
Hitchcock, and I think Jon Q. Reynolds was on the board. He was 
the board president later. Helen Burke. I think it was probably 
Chuck Wright from Richmond. Ken Simmons. And at that time, I 
can t remember if it was Sandy Skaggs or DeWitt Krueger from the 
east side. The 78 election was after all of this, and so it s 
whoever got elected in 74 and 76 that we were dealing with. I 
ought to remember that better, but I don t. 



More on Agreements to Share Water, 1976-1977 



LaBerge: Going back to the agreements about the transfer of water and 

everything: when I was going through some of the papers, I read 
about agreement number two and agreement number three. I don t 
know if that s what-- 

Maddow: That s precisely what I m referring to. I d forgotten about that 
nomenclature . 

LaBerge: Okay. And it said agreement number two was East Bay MUD, CCC-- 
what s that, Contra Costa County Water District? 

Maddow: Yes. 

LaBerge: --Department of Water Resources, and the Bureau of Reclamation. 
So that s four. 



Maddow: That s correct. That s the agreement that provided for the use 
of the district s #1 aqueduct to pump Middle River water to 
Indian Slough. The bureau was the water supplier to Contra 



LaBerge: 
Maddow: 



119 

Costa. What the state did was to takethe state provided a new 
intake for Contra Costa 1 s water supply, is what it amounted to. 
And the bureau had to be involved, because the bureau also owns 
the Contra Costa Canal. It s operated by and for Contra Costa 
Water District, but it was a bureau facility, and the state was 
exercising its legal duty to Contra Costa Water District to try 
and get better quality water, and so they built this eight -mile 
extension, if you will, to the intake. And that was a four-party 
agreement that was written very quickly 

And were you involved in writing it? 



Yes. 



LaBerge: And who else? 



Maddow: Oh, gosh. 



LaBerge: Were you the only one from the district? 



Maddow : 



LaBerge: 



No, I wasn t the only one. I was certainly involved. Walt Anton 
and a man named Orrin Harder, who was the Water Resources 
Planning Division manager, were both involved. From the Contra 
Costa Water District, I think it was a man named John Gregg. 
He s now the general manager of the San Benito County Water 
Agency. From the Department of Water Resources and the bureau, I 
just don t recall. I should. 

Well, if it wasn t controversial, maybe people s names don t 
stick. 



Maddow: No. I remember that the lawyer for the DWR was a man named John 
Cape, and I think the main staff person was Wayne MacRostie. But 
the other names don t come back to me. 



LaBerge: Well, then in the other agreement, the different 
Metropolitan Water District. 



person was 



Maddow: Yes. Agreement number three would have had a bunch of parties. 



LaBerge: 



Maddow: 



LaBerge: 



Maddow : 



120 

Yes. It was East Bay MUD, Department of Water Resources, 
of Reclamation, and maybe MMWD is Mar in. 



Bureau 



Marin Municipal Water District. San Francisco got involved in 
that too, somehow, and so did the City of Hayward. I could still 
take you to the place in the city of Hayward right next to the 
Mervyn s department store, their bigit s like their 
administrative building in the old Capwell s, across the street 
from what used to be Joseph Magnin s, right by the creek there in 
downtown Hayward, where there are two sets of manholestwo 
"personnel access structures." [laughter] And in the drought, 
there was a twelve- inch pipe that stuck out of those two things 
with two sets of meters on it, and that was the interconnection 
point. It would move, I don t remember how many thousands of 
gallons or millions of gallons of water a day. 

But it was a very visible, above-ground structure in the 
middle of a sidewalk about a block from City Hall in downtown 
Hayward . 

Well, there was a memo from Frank Howard commending the staff for 
all the work through all of it, and particularly you for all the 
work that you d put in. So you must have been the main-- 

I kind of was. And I have to say, Germaine, that it was 
absolutely fascinating, but it wasn t as though we were dealing 
with somebody who was putting up rock-ribbed, obstinate 
opposition. We had motivated people who were trying to get 
something done, and our task was to find a way to make it work 
quickly and legally and efficiently. Those were the kinds of 
challenges we had to face and were able to do it. 



Woodward Island Right of Way 



Maddow: I mean, there were lots of other things that came up. Trying to 
buy the pumps for the Middle River pump station, and I remember 



LaBerge: 
Maddow : 



121 

that we ended up buying used pumps from someplace. Oh, that s 
not right, that s not right at all I I talked about the fact the 
San Pablo Reservoir was going to be drained. Well, we had bought 
the pumps for draining San Pablo Reservoir. When we drained San 
Pablo, you take that huge reservoir out of the system, you ve 
still got to get water to some places. And so the plan had been 
evolved before the drought to take San Pablo out of service and 
to bypass the reservoir with a big pipe, and to move the water 
through that pipe through some big pumps. 

Well, those pumps, the district had already bought. So what 
it did when the Middle River pump station had to be built was to 
put them on a truck and take them out there and install them in 
the Delta for a different purpose. But we needed five and we 
only had four, or we needed four and we only had three or 
something like that. 

And so a guy named Paul Lindquist, another Old Blue, still 
around here someplace, who was our purchasing manager, and Walt 
Anton, they went to work, and eventually they found a pump from 
an outfit called Dynaquipt or something. And they bought a used 
pump that had been used I think in the oil industry, that was 
available, that was clean, and it could be used. Most water 
pumps are vertical turbine pumps j this was horizontal turbine or 
something. We had to go through some real nip-ups to be able to 
buy the thing without competitive bidding, and then to go through 
the construction contracting wrinkles to get it out there. 

And of course, Woodward Island is only reachable by ferry, 
and so we had to negotiate special arrangements to get access to 
the ferry when we wanted it instead of when the ferry operator 
wanted to do it. And then we had to deal--oh, God, now it s 
coming back. 

Well, tell me! [laughs] 

There were--oh, jeez! We had to get right of way, because the 
district has the stretch of right of way that the aqueducts are 
in, but we needed construction space, and then we needed space in 



122 

which I think a portion of the pump station was actually outside 
the right of way. There was one part of the land on Woodward 
Island that was owned by a man who was kind of mysterious . I 
don t remember all of these details, but I can probably turn you 
on to the person who would. 

The district s aqueduct section manager at that time was a 
man named Al Bonner, and Al was a remarkable man, one of the 
really capable people, someone who had a tremendous amount of 
just basic intelligence, but more importantly, he had a basic 
amount of common sense, and he had no fear of anything. And Al 
needed all of those things, because at that time, he was in 
Stockton, and he was a very high-ranking official with the 
utility district, and he was black. That was very rare back in 
those days, and he was a guy who got where he belonged on merit 
and merit alone, and just guts. I loved working with the guy, 
and I still just think the world of him. He subsequently retired 
from the utility district, was a City Council member in Stockton, 
and is now on the board of the Stockton East Water District. 

But Al knew this guy, because this guy owned land that was 
farmed on Woodward Island. Al took the district s right-of-way 
guy, a man named Walt Goggin, another Old Blue who s dead now, 
and they went to see this guy out in Livermore or Tracy or 
someplace. He invited them up to the house, and they sat down on 
the porch, and as I recall, there was a bottle of his whisky that 
was involved, and they talked about East Bay MUD needing to use 
some of his land. After a while, he said, "Do what you have to 
do." Okay? 

And I didn t think too much about that, because I knew that 
I had the federal government on one side of me and the state 
government on the other side of me, and a lot of other 
landowners, and I had the lawyer for the reclamation district on 
the island to deal with, and I needed a little more than that. 
So I had to say to those guys, "Go back. He s got to sign 
something." 



123 

So they went back, and he didn t like it and they didn t 
like it, but he signed something that Walt Goggin had put 
together, and we got something that I said, "That s good enough; 
turn the builders loose to go on this guy s land." 

Now, this is another one of those anecdotes that I need to 
be real careful about. I don t remember the man s name, but the 
story that I was told way back then was that one of the reasons 
why this man didn t really like to have his name on too many 
pieces of paper or anything like that was that he was a very 
wealthy farmer, with land there on Woodward Island and elsewhere, 
but the rumors were that much of his profits from his farming 
operations eventually went to some political cause in Great 
Britain or something like that. 

So I never knew whether that was true, and I was always 
fascinated by it, because here s this guy who hadif in fact it 
was true that kind of sympathies, and here East Bay MUD sends in 
this remarkable black man, who just was about as effective a 
public servant as I ve ever known, and at the end of that 
conversation over that bottle of whisky, this man, who was 
apparently motivated by these larger political causes , looked at 
Al Bonner and Walt Goggin and trusted them and said, "Do what you 
have to do." I always loved that story; I just thought that was 
great. 

Anyway, those were some interesting aspects of all of that. 



PG&E License on the Mokelumne 



Maddow: I have one more little anecdote that I will tell you that relates 
to that same period of time. It s a little off the drought 
stream, but it fits in some respects. 

One of the things that was going on in parallel with all of 
this had to do with the regulation of the PG&E water storage 



124 

facilities upstream of East Bay on the Mokelumne. The City of 
Santa Clara was attempting to take over the license that PG&E 
held from the Federal Energy Regulatory Commission. It was kind 
of a first case of its kind. There was quite a battle in this 
country over what was called the municipality preference, and 
whether a city like Santa Clara could exercise that preference, 
and kick an investor-owned utility off the river after their 
original Federal Power Commission license had expired. The 
original Federal Power Act 1 looked like that could happen. 

Well, we were very interested in what would happen, because 
of course, the utility district and PG&E have a very carefully 
dovetailed relationship that s expressed through a series of 
court decrees about how the Mokelumne is operated. PG&E is 
interested in operation for hydroelectric energy, and of course, 
the utility district for domestic water. How they interrelate is 
very important to the productivity of the East Bay water system. 
If somebody was going to take it over, like Santa Clara, we 
wanted to know about it. So every time something was going on 
with Santa Clara, we would get involved. 

There was a meeting one time having to do with one aspect of 
the PG&E relicensing and the Santa Clara effort, and it was up in 
some meeting room in Sacramento. This was at a period of time 
when we were all struggling because of the drought circumstances. 
There was a gentleman there from the U.S. Fish and Wildlife 
Service who was asserting that the PG&E system needed to be 
changed, because it was not releasing sufficient water from their 
dams to keep fish below those dams in good health. It s a much 
more common thing that we deal with now, but that kind of an 
argument was heard from Fish and Wildlife back then. 

The PG&E man who was there knew their facilities very well, 
and for the particular facility he was talking about, Salt 
Springs Dam, which was a huge dam, very, very tall, and a huge 
reservoir behind it the size of Pardee, very deep canyon. He 



federal Power Act, 49 Stat. 863 (1935). [Renumbered by 92 Stat. 3148 
(1978)] 



125 

said, "You know, there is some water that flows below that dam 
all the time." It s basically gallery leakage and through one 
little pipe, and my recollection is it was seventeen cubic feet 
per second that flowed continuously. He said, "The only other 
way we could get water out of that dam is through an eighty-four- 
inch sluice valve that was a part of the original construction, 
and it has never been operated since the original construction, 
and if it was operated today, we first don t know if we could get 
the valve open, we re quite sure we couldn t get it closed, and 
we are afraid that opening it could lead to the type of problems 
that could threaten the safety of the dam. So we aren t going to 
do it." 

And the Fish and Wildlife biologist pounded his fist on the 
table, and he said, "Well, damn it, you could throw a siphon over 
the top and get the water the fish need!" [laughter] And you 
know, that for me was kind of harbinger of things to come with 
all the other battles we re all having with Fish and Wildlife 
Service and getting fish flows out of reservoirs. 

Now, you said you wanted anecdotes; that s why I gave you 
that. 

LaBerge: Yes, that s good. What happened with that? 



Maddow: Well, eventually, there was a lot of litigation, there were a lot 
of FERC hearings, and eventually, the Federal Power Act was 
amended in something called the Public Utility Rates and Policies 
Act, PURPA, of--I think it was 1978. 






But in any event, PG&E got a new license. Santa Clara 
eventually got more or less a settlement that allowed them to get 
access to some other power facilities, and Santa Clara continues 
to be a very active player in the public power field as a part of 
the Northern California Power Agency and things like that. But 
they didn t get the PG&E system up on the Mokelumne. As a matter 
of fact, I don t think any systems like the PG&E system ever were 



126 

transferred on the basis of the municipality preference, 
changed, is what basically happened. 



The law 



LaBerge: On that note, another thing that I saw--oh, there was permission 
for East Bay MUD to collect PG&E bills at the San Leandro office. 

Maddow: Oh, yes. 



Changes in Focus from Fifties to Eighties 



LaBerge: And when I saw that, I thought, Oh, that s interesting. I wonder 
what the background of that is? Was it convenience, or ? 

Maddow: Yes, it was a combination of convenience and the two entities 

trying to find ways to streamline their operations. That sort of 
thing is still going on. There s a business office now in Walnut 
Creek which I think was originally a PG&E office where it s also 
an East Bay MUD customer service center, or at least you could 
pay your bills there. 

And what happened, for many years, the utility district, in 
what I call the old days before electronic data processing and 
all of that, the district had business offices in a lot of 
locations, I think five or. six of them. And the business office 
managers had quite a presence in their local communities. They 
would be involved in service clubs and that sort of thing. That 
was all harkening back to the days in the late fifties when the 
utility district had this huge bond issue that went on the 
ballot, $252 million, $258 million, to build Camanche Reservoir, 
and Briones, and the third aqueduct, and things like that. It 
was called the Big M. That was a huge undertaking in the fifties 
for the utility district, and people who ran the local business 
offices were a big part of getting chamber of commerce support, 
and Rotary Club, and those kinds of things. 



127 



What you saw when you came across the memorandum about East 
Bay and PG&E working together on bill collections and that sort 
of thing was just a reflection of the fact that, by the time we 
got into the seventies and beyond, it became less likely that 
people or entities like East Bay MUD were going to maintain very 
many remote business offices, and so the district has kind of cut 
back in a good part of that, does much more now from remote 
locations through telephone and that sort of thing. 

But it has established throughout the community a whole lot 
of places where people can go and in effect pay their bills at 
the local pharmacy or some such thing . And that s done through 
just a series of relatively simply collections agreements and 
that sort of thing. The utility district has never had any 
problem with any of those that I m aware of. I think the initial 
problem was getting over the sort of mental block of actually 
sitting down and working with an investor-owned utilities people. 
My goodness, how can we do that? We re different. But I can t 
think of anything that got terribly exciting about it, except 
that there were some old-fashioned thoughts that had to be kind 
of changed as that went on. 

And then in the eighties , when the utility district was 
working much more in the era of water conservation, it then went 
the other way and established a new business office which really 
focused on water conservation activities, particularly in the 
areas in the warmer climates east of the hills, and that s the 
so-called Alamo business office. I don t know whether that s 
what it s still called. But it was the counter-current. It was 
not so much because the utility district was looking to have a 
business office presence out there. It wanted to have this other 
form of presence, the water conservation presence, and so its 
water conservation activities were largely focused there. Some 
real knowledgeable professional people with water conservation as 
their sole profession have worked out of there. There are also 
other business office functions there, I know, but that s been a 
big one. 

LaBerge: That s the main thing. 



128 
Maddow: Yes, I think so. I don t know exactly how it s configured now. 

Go down the rest of your list and let s see what else you 
want to talk about. 

LaBerge: Okay. Was there any other legal issue about changing the rate 
structure? Did EOF at some time challenge your rate structure? 

Maddow: I don t remember an EDF challenge to the rate structure. I do 

remember EDF becoming concerned about the rates from a couple of 
perspectives. EDF has always been one of the environmental 
organizations that has viewed market forces as being a valuable 
tool in regard to conservation of natural resources, and they 
have always been an advocate, for example, of the tiering of rate 
structures and-- 



LaBerge: Oh, I didn t realize that. 



Declining Block Rates and Chevron 



Maddow: To some degree, we did have an earlier issue, although it was 

primarily an economic issue and a financial issue more so than a 
legal issue. That was back when I first went to the utility 
district, it had what were in those days called declining block 
rates. The theory of it was, the economy of scale. In those 
days, and I think probably still today, the utility district s 
largest water customer was the Chevron refinery in Richmond. 
Now, for the average let s say the single family residential 
customer, if you look at the load curve on a daily basis or a 
weekly basis, you ll see great fluctuation as the water is turned 
on to take showers in the morning and run the dishwasher at 
night, and water the lawn whenever that is. You ll see the load 
curve for the individual customer go up and down like that, 
[motioning] For Chevron, it s a flat line. It s a big line, 
because they re using a lot of water, but it doesn t vary very 
much. And so from the standpoint-- 



129 



LaBerge: Okay, you were talking about the declining block rates, and 
Chevron. 



Maddow: Chevron in particular was the most dramatic example, because they 
were the largest customer. But they probably had the flattest 
load curve, because that s a refinery that s basically going all 
the time. They were using water for cooling purposes, and there 
wasn t a great deal of variation in the way they took water. So 
once you ve built that infrastructure to get the water to them, 
you don t have a lot of variable costs, and therefore, depending 
upon how you recover your fixed costs from the ratepayers, you 
probably- -the economies of scale would suggest that you probably 
can charge them a lower unit price than you can somebody for whom 
you have to build in the facilities to handle the peaks. You 
don t need a peaking reservoir or pump for a Chevron. 

In between Chevron and the residential customer, in those 
days we had packing plants, for example. There used to be a lot 
of fruit and vegetable packing plants in San Leandro and Oakland. 
They re not there any more, but in those days, they were huge 
seasonal users. If you think about the rate curve or the demand 
curve for Chevron, and the single-family residents, and then you 
think about those packing plants, packing plants would be taking 
very little water maybe eight months of the year, and then huge 
amounts for several months. 



Changing Times Brine New Needs and Different Costs 



Maddow: So can you put all those people on the same pricing structure? 
From the financial standpoint, and this became more of a factor 
after the drought and after these economic problems the district 
had found itself built into, there are a lot of questions that 
began to be asked about how one goes about recovering the 
revenues that it needs, given the characteristics of the customer 



130 

base that you had, and given the fact that there were increased 
demands as the demographics of the population changed. And by 
that I mean, the utility district hasn t really grown that much 
in terms of the number of people within the service area in the 
last twenty-five years. It s probably still somewhere between a 
million one and a million two . When I went to work for the 
utility district, I think it was a little less than a million, 
one. 

But what s happened is, that same number of people is living 
in a lot more houses and apartments. Because it used to be, I 
don t know, three people, three and a half people per dwelling 
unit , and now it s maybe 1.8. The houses are spread out more . 
You ve got people living in Hercules and Pinole, which weren t 
anything more than little company towns twenty-five, thirty years 
ago. 

So the utility district was faced with the sort of double- 
barreled challenge of making sure that as it went forward into 
this period of revenue needs --the district needed to raise more 
money and a changing rate base in the sense that the packing 
plants were starting to disappear and we weren t seeing those big 
commercial loads come in, industrial customers were going away. 
And this sort of increasing number of dwelling units in areas to 
which new facilities were going to have to be extended and that 
sort of thing, what s the best way to go about raising revenues 
that you need? 

And at about the same time, pf course, in the late 
seventies, the utility district began for the first time to 
really pay real close attention to questions of whether growth 
was paying its own way. I have to say that from a political 
perspective, the arrival on the board of Helen Burke really 
brought those questions to the fore in a very pointed way for the 
first time. The questions had been there before, but they hadn t 
been as pointed. And I have always given Helen Burke a great 
deal of credit. For a long time, the votes would be six to one 
on some of the issues that she was concerned about, but she held 
her ground and she was very effective. 



131 

In any event, what happened with regard to the rate 
structure was that there were a number of shifts that ended up 
having to be made . The district moved away from a declining 
block rate to more of a flat rate commodity charge. The district 
altered the mix between that portion of the water bill which is a 
pure commodity charge, which is just volume-driven, and that part 
which is really the service charge, which reflects elements of 
the district s fixed costs. 

But the biggest change was that the district began to charge 
a much higher price for new connections. The district began to 
focus much more clearly on what facilities were going to need to 
be constructed over time in various parts of the district, and 
who ought to pay for them. And so for the first time- -and this 
was work that Frank Howard was very involved in, much more so 
than I was for the first time, the utility district began to 
look at this balance between what part of the new facilities 
should be paid for by existing customers and what part should be 
paid for by growth. 

So through the seventies and on beyond then, the utility 
district began to evolve a fairly sophisticated system of looking 
at facilities and determining what their costs would be. The 
district is divided for this purpose into it used to be, I think 
it s probably still the sameinto seven planning regions. If 
you go to hook up a house in one of those regions, you re going 
to pay what they call a system capacity charge that will be 
different region by region, depending upon the facilities needs 
in that zone. 

In addition to that, the utility district began to look at 
other factors in its economic picture, and out of that evolved 
something called the elevation surcharge. If you live up at the 
top of the hill, when you get your water bill, if you look, there 
will always be a line that talks about the elevation surcharge, 
and that line is intended to say that people who are receiving 
water from facilities which require pumpingit s primarily 
related to pumping- -they should be bearing the cost of 



132 

installing, maintaining, and operating those systems to move 
water to that elevation. 



Marginal Cost Pricine 



Maddow: All of this was a part of looking at a whole variety of more 

market -related economic forces and trying to put them into the 
district s revenue mechanisms. One of the big questions that 
always used to be debated, and EDF had a piece of this, was 
whether or not the district should engage in something called 
marginal cost pricing. Should we be raising the price of water 
in effect to the point where people would be much more conscious 
of how much the next unit of water that they used was going to 
cost? There was a consultant who we used back then named 
Harrison Call. I think we first knew Harry when he was at a firm 
called R. W. Beck from Seattle, and he had done a lot of work on 
the marginal cost pricing theories related to electricity. 

Then he began to look at it from the standpoint of water, 
and despite some of the things we used to hear from some of the 
people in the EDF about how water ought to function like other 
commodities in terms of the elasticity of demand as price went 
up , what we were always finding through Harry s work and all the 
rest of the work we could find was that the elasticity of demand 
the coefficient of elasticity of water was very low, because 
the basic price was so low. But if you priced it high enough so 
that there would be a higher coefficient of demand, you would be 
pricing beyond the actual cost of the water. And even before 
some of the constitutional amendments that we ve had since these 
debates began were enacted, we always knew that we were supposed 
to be pricing at the actual cost of the water, or something close 
to it. 

And so we did have debates at the policy level, not so much 
legal arguments, not so much litigation in those days, but there 
were lots of debates about those pricing issues. They resulted 



133 

in I think a pretty modernized economic program at East Bay. 
It s been looked at by a lot of other utilities as kind of a 
model. Los Angeles Department of Water and Power has done a 
great deal with it now on seasonal variations. They now, in 
addition to an elevation surcharge, they now use a seasonal rate 
concept where water is thought to have much more value in the hot 
months, and therefore, it ought to be priced a little higher, and 
those who use more in the hot months will suffer from it. 

While I was driving to this interview today, I was on the 
telephone with Bob Helwick, who s now East Bay s general counsel. 
Senator Richard Rainey [spells] from out in Contra Costa County 
has recently asked the California attorney general for an opinion 
as to whether Proposition 218, the "Right To Vote On Taxes Act," 
which was passed by the voters last November [1996], whether or 
not it prevents East Bay from being able to use tiered rates as a 
part of its regular pricing structure, or whether the Proposition 
218 procedural requirements apply, and also whether some 
Proposition 218 substantive requirements about charging the 
actual cost, whether those would apply. It will be interesting 
to see how that works out, because if Rainey s theory is correct, 
it could have a significant impact on some of the revenue-raising 
mechanisms that East Bay and others are using. Prop. 218 has 
some pretty onerous provisions that would be difficult to apply 
to ordinary rate-making. So anyway, that s a subject that will 
go on and on. 

The utility district has had some litigation on this issue. 
An organization called WATER- -Water Allocation Through Equitable 
Rates, I think, or something like thatit s headed by a man 
named Charles Brydon [spells]. They sued a couple of times, 
trying to challenge the rate structures that the utility district 
was using in the drought in particular in the eighties. They 
didn t get very far with their case in the eighties. Eventually, 
it ended up with a court of appeals decision in the utility 
district s favor. I think that decision came down in 1993 or 
early 1994. I believe it s cited as Brvdon vs. East Bay MUD. I 
don t recall it offhand. 



134 
LaBerge: And were you the one who-- 

Maddow: The case was started while I was still general counsel. I didn t 
litigate it myself; people who were in the office did. Verna 
Bromley in particular had a major role in litigating that case, 
also Nancie Ryan. It was interesting because Mr. Brydon feels 
passionately about this cause, and worked as hard as he could to 
try and find a way to state a cause of action, and frankly had 
some difficulty doing it. The utility district won the case for 
what I thought were good reasons. Probably the easiest way for 
you to get at that if you want to start asking me questions would 
be to go and take a look at the opinion. I d have to go back and 
refresh my memory on it. 

But that s the only real serious litigation about the form 
of the rate-making that the district had. 

I should tell you that the pattern of system capacity 
charges that the utility district uses is to some degree being 
replicated at the Contra Costa Water District with what it calls 
its Facilities Reserve Charge. They have very significant 
litigation underway with the Building Industry Association of 
Northern California about their Facility Reserve Charges. The 
reason I think that they re getting that litigation rather than 
East Bay is that the pace of development is much quicker in the 
eastern portion of their service territory than it is anyplace in 
the East Bay service territory. The price per house in the 
Contra Costa service territory is much lower, and as a result, 
these Facilities Reserve Charges have potential for a bigger 
impact on the housing market, so the builders are fighting very 
vigorously on those issues. 



Taxation of EBMUD Real Property by the Mountain Counties 



Maddow: I guess if we want to talk about economics, there s one other 
thing I could touch on for a moment that I had a major hand in. 



135 

There s a provision of the California Constitution that says that 
real property owned by a public agency outside its jurisdictional 
boundaries, that real property is subject to property taxation on 
the value of the land alone, not on the value of the 
improvements . That constitutional measure was adopted back in 
the sixties after years of debate about whether the mountain 
counties, as they styled themselves, could tax the water systems 
of Los Angeles, San Francisco, and East Bay MUD. And to make a 
real long and bothersome story short 

LaBerge: Well, you can go into it. That s one of the things on my list. 
We re talking about Amador, Calaveras, and San Joaquin? 

Maddow: Yes. In the seventies, the utility district began to look at 

some fairly dramatic increases in the way in which its property 
up-country was being assessed. This was prior to Proposition 13 
when property tax rates were really rising in a lot of places, 
and the utility district was seeing some of that. The utility 
district was at that time, I think probably still is, probably 
the second largest taxpayer in Amador County. Maybe that s 
changed now, but in those days, there was a lumber company that 
was a bigger taxpayer, but that was the only one. 

Essentially what happened is that the utility district, in 
acquiring the property for the Pardee Reservoir back in the 
twenties and the early thirties, had acquired one piece of 
property that had a characteristic that the counties called a 
"water right." It wasn t a water right, but they called it a 
water right, and they taxed it as a water right. They put an 
enormously large value on it. When Jack Reilley got wind of it, 
he wanted to do something about it, and that started several 
years of arguments. 

Essentially, what the utility district had done was to 
condemn a piece of property that was owned by a man named Lloyd 
Thayer, who was a kind of an entrepreneurial type, who was aware 
that in the twenties, East Bay was coming up onto the Mokelumne 
to build this big enterprise, and he bought a piece of property 
which looked like it might be a moderately decent damsite 



136 

downstream from Pardee. He got the city of Lodi to help him 
finance an operation up there, and he formed something called the 
Colorado Power Company, and actually scratched out at least one 
abutment, I understand. Well, I think I ve actually seen it once 
in my life. There is actually a notch where you can see the 
abutment of the site of old Thayer Dam, which was never built. 

His idea was that he would build a little dam across there, 
impound some water, maybe make a little power out of it, and have 
some water to sell to Lodi and others. His real idea was that he 
was going to get rich off East Bay MUD, and to a degree he did. 
[laughter] So East Bay MUD ended up filing a condemnation case, 
and the man who filed it I guess was probably Ted Wittschen, who 
was the first real general counsel, and he did a very smart 
thing. It s kind of like when people want to keep a piece of 
property from being developed now and they don t buy the 
property, they buy a development right. East Bay condemned 
something that the courts characterized as being in the nature of 
an easement against Mr. Thayer 1 s right. And the easement was 
defined as being that portion of Mr. Thayer s fee simple 
ownership that would have allowed him to develop and operate a 
dam and a little pond it wouldn t have been a reservoir; it just 
would have been run of the river, riparian- type ponding at that 
location. 

In first-year law school, they sometimes tell you that when 
you think of the concept of fee simple in regard to a piece of 
property, it s all these sticks that, gathered together into a 
bundle, represent fee simple. One of those sticks is what East 
Bay condemned. Didn t take the whole bundle; just took the 
stick. 

Ever since then, that stick has been on the tax roll in 
Amador and Calaveras Counties. The river is the boundary between 
the two counties at that point. And a couple of very inventive 
county counsels and assessors came up with the idea that they 
would start boosting up the assessment of that right over the 
years, and we ended up having to challenge it. 



137 

The way in which the constitution allows you to challenge 
this type of assessment is to go to the State Board of 
Equalization. The state board primarily exists for the purpose 
of equalizing the assessments between the counties. At least:, it 
did that prior to Proposition 13. That s no longer a very big 
function. And they are also the assessment appeals body for the 
regulated utilities and the railroads and people like that, but 
then they also have this function for these public agencies. 
They almost never have hearings on public properties . 



Experts and Compromise 



Maddow: We filed protests to the assessments, paid the taxes under 

protest, and filed applications for equalization assessment and 
adjustment, or something like that- -filed applications with the 
state board, and eventually took them to hearing over a couple of 
years. Filed some lawsuits which were never actually served, 
never actually litigated. After a very long period of time, we 
ended up essentially with the parties agreeing on a modus 
operandi from that point forward. The counties agreed to fix the 
value of the water rights and not escalate them, and we agreed to 
accept the method of assessment that they were putting on the 
acreage the district owned. They were assessing it at a higher 
value, we thought, than really was warranted. But by the time it 
came time to decide whether to pull the trigger and actually 
serve those lawsuits and battle it out with those counties or 
not, a lot of harsh words had been exchanged, and the utility 
district has to live in Amador and Calaveras and San Joaquin 
Counties. And so it really didn t want to pick a huge fight with 
those entities, and they didn t really want to have a huge fight 
with us either. So we looked for a way to compromise, and as is 
so often the case, the definition of compromise is that everybody 
goes away a little bit angry, and that s pretty much what 
happened . 



138 

We had some real battles. We had some very good people who 
were the experts on either side. I frankly think we had the 
better of it in terms of our experts and our preparation and our 
ability to--we pretty much destroyed one of their witnesses on 
the valuation of the water rights on cross-examination, and he s 
never let me forget it. We ve actually been able to communicate 
since then. 



LaBerge: Who were your experts? 

Maddow: Our principal expert on the overall case was a man named Norm 

Murray. His first name was Angus; Angus Norman Murray, who had 
been the regional director of the Bureau of Reclamation and then 
had opened a consulting firm called Murray, Burns, and Kienlen 
[spells]. Norm Murray was [in accent] a Scotsman who was a 
cigarette smoker, and a fast mind and wit, and just absolutely 
told it like it was, and was a wonderful witness. Norm was our 
valuation witness who in essence said that none of the theories 
that the counties were using for valuation of this water right 
would work, and he wrote an excellent report on it. 

We also had a man named Dave Wilier [ spells ] , who was from a 
firm called Tudor Engineering. We used Dave as a rebuttal 
witness to counter a theory under which the counties were trying 
to establish a value for the old Thayer right. We had an 
appraiser named Jack Keeler [spells], who was from up in 
Fairfield. He was our property appraiser. Jack Reilley and I 
litigated these cases. I did most of the work, in particular in 
the year when we had the big hearing, which was I guess the 77 
tax case. I guess we probably had that hearing in 78 or 79. 

Bill Parsons was the person from the district s real estate 
section. I guess it was called the Land Division in those days, 
and Bill and I worked very closely on these things. 

I m trying to remember the names of the people who worked on 
these matters for the counties. The county counsels I remember 
well. John Hahn was then the Amador County counsel and still is. 
John and I developed a kind of a love-hate relationship over the 



139 

years. We ve really fought, but I think it s fair to say we 
really like each other. You know, in our own ways, I guess we 
became good friends. And I still can call up there and get his 
secretary, Audrey Parker, and she says, "Well, Bob, when are you 
going to come up and see me?" kind of thing. 

The county counsel of Calaveras County was George Huberty. 
Excuse me, he wasn t the county counsel, but let me get this 
straight. There was a time when George Huberty was the county 
counsel in Calaveras, and Joe Huberty, his brother, was the 
county counsel in Amador. But then Joe Huberty became a judge in 
Amador, and I think George--! guess he stayed on as county 
counsel, but then at some point, he was no longer county counsel 
and he was doing this as a private attorney. 

And what s that guy s name from San Joaquin? I can see the 
guy from San Joaquin, but I can t think of his name. Very nice 
guy. Terry Dermody. 

Then the assessors were Charlie Clark in Calaveras, who was 
just a great sort of country gentleman. And I can t remember the 
name of the guy in Amador. 

They had a guy who was the manager of one of the offices in 
those days of the firm of CH2M Hill, who was their expert on the 
valuation of the Thayer right. He s the guy who we just tore 
apart on cross-examination. He had absolutely by the time he 
was done, we had him talking to himself, because he had tried to 
put together a case to value the right which just wouldn t work. 
I don t consider myself a litigator, but that, from the 
standpoint of cross-examination, was one time I think I did a 
pretty good job. 

We ended up getting decisions from the board which resulted 
in tax refunds being paid to the utility district, primarily 
based on the right, and as I say, after a couple of years of 
flailing away at one another, a decision was made to walk away 
from those battles and come back and look another day. 



140 
Effect of Proposition 13, 1978 



Maddow: I don t know what s happened in recent years. Just as I was 
leaving East Bay MUD in 1993, a gentleman who was then, and I 
think is probably still, in the property section there, a man. 
named Steve Boeri--! think he may be the head of the property 
section now he was starting to look at those taxes again. Now 
the issue would bring in Proposition 13, which of course changed 
the whole basis for assessment of real property. It s at least 
possible that a whole new round of arguments would have to be 
fought. This time, the argument would be whether or not 
Proposition 13 provided still another way, another limit, on the 
way in which they could assess this property. 

You see, what had happened in the early days was that the 
counties wanted to tax the properties in a way in which basically 
they would be taxing the value of the water extraction systems 
that San Francisco and Los Angeles and East Bay developed. A man 
named Bob Phillips was the general manager of the Department of 
Water and Power of Los Angeles back in the sixties. He was 
principally responsible for the negotiation of what ended up 
being a constitutional amendment that was passed by the 
legislature and approved by the voters ; it established this 
special formula for taxing the properties of public agencies. In 
effect, what it says is there s a formula that was established 
for setting a base year, and then that base year could be 
escalated on a certain factor that was set forth in the 
[California] constitution. The assessors were limited to 
assessing on that formula, or at the market value, whichever was 
lower . 

And so the arguments that we were fighting over with the 
counties were always, Is the market value less than the formula 
value? And they would always want to escalate up to the formula 
and then some, and we would always say, "Wait a minute, the 
market value is less. The market value of this water right," we 

Said, 



141 

Proposition 13 would allow the assessments to escalate at a 
rate that would be less than the Phillips formula, but query as 
to where the Proposition 13 value would be in relationship to 
market value. So the utility district may now be facing a 
question of whether there s this third basis for value. I think 
there s been some litigation involving San Francisco s properties 
up in Tuolumne County and probably in Alameda County. I believe 
San Francisco is still taxed on more acreage in Alameda County 
than any other taxpayer, under this same theory. So I believe 
there s been some more litigation in that area, but frankly, I ve 
kind of stopped paying attention to the issue, after all of those 
years of battles. 



Bob Maddow as Litigator 



Maadow: I told you that I m not really a litigator. I ll tell you one 
little anecdote from all of that. 

On one particular day when Dave Wilier was our witness and I 
was examining him on direct examination, Dave had a terrible day. 
He just was not confident, he just did not handle himself on the 
witness stand very well, either on my direct or on the cross- 
examination by Mr. Hahn, or by the man from San Joaquin whose 
name just came back to me: it s Terry Dermody [spells]. He was 
deputy county counsel at that time. 

We finished our day in the hearings, and we were staying at 
the Red Lion Hotel in Sacramento out near the fairgrounds . We 
went back to our rooms, and I all of a sudden just felt 
exhausted. I said to Jack, "Look." Normally we would meet right 
after the day and prepare for the next day. I said, "I m going 
to need a little time," and I went back to my room and lay down, 
because my head was spinning, I m sure my blood pressure had gone 
to a thousand. I actually think I fell asleep for about twenty 
minutes, but I left a wake-up call thinking I might have that 
happen, and I arranged to meet the guys for dinner. 



1A2 

So we went down for dinner, and I still had on the suit and 
tie and everything that I d worn to that day s hearing. We went 
to someplace where they had Chinese food. Jack ordered foil- 
wrapped chicken. And sure enough, I pick up one of the things, 
and you know it comes in the little envelope, and I touch it, and 
it erupts on my tie. And this gout of whatever s in the foil, 
the juice and all that, goes on my tie. Jack laughed and said, 
"You must be wearing a new tie ! " Of course I was , and it was 
stained beyond repair. 



Maddow: But I have to tell you, it was perfect, because it brought me 

back to earth, got me out of my funk. We had dinner, and after 
dinner, I sat down with Dave Willer--it was primarily me and 
Dave- -and I talked to him a little bit, and by golly, the next 
day 

LaBerge: Coached him? 

Maddow: I didn t- -what I tried to do was to say, "Dave, you know this 
stuff. You know the answers. You know it better than the man 
who s cross-examining you. And I have a chance for redirect, 
so." And he went in the next day and he was great. He just 
really kind of pulled himself back it wasn t what I did, it was 
what he did. 

But what Jack did with that little one-liner of his was to 
break me out of this rut that I d fallen into that day, and I 
think he just saved my bacon, you know. [laughter] 

LaBerge: Well, it s the power of the sense of humor, too, isn t it? You 
need that. 



Maddow: You really do. And these were hard days. We just went at it 
hammer and tong with John Hahn. He s a tough guy, and he s a 
good lawyer. We really battled it out with them, and so these 
were hard days. Especially for somebody like me who wasn t a 
litigator. 



143 

But we learned a lot in those days, and I formed a very 
healthy respect for the people in the mountain counties and the 
work that they do, and the relationship that they have to that 
utility. And vice versa. I think I learned a lot about the 
utility at that time. I really had to learn a lot about how 
water resources work and a lot of water law in order to be able 
to deal with the Thayer water right, et cetera. 

And it also gave me an occasion to study a lot of the 
history of the Mokelumne system, and it s a fascinating history, 
as is the history of each of the older systems. So it was just a 
great grounding for anybody who tries to look at the historical 
and sort of the policy side of things, which has always been kind 
of my nature. So it was terrific experience. I hesitate to 
claim it as a great victory, because although we did get the 
utility district s taxes reduced, we always ended up thinking 
that we could have done more, had we actually litigated those 
cases . But I think it was the right thing to do to not litigate 
the cases , because it preserved the working relationships between 
the counties and the utility district, and I think that s very 
important. You don t want to be at constant war with them. So I 
think that s been important . 



Hiring Outside Counsel 



LaBerge: Well, do you think Mr. Reilley kind of put you in that situation 
to give you the experience? 

Maddow: I think he definitely did. There had been an earlier round of 

tax cases in the sixties under another legal system, prior to the 
Phillips formula and all that, and he d fought those battles. I 
don t think he wanted to be out front. He had too many other 
things to do as the district s general counsel, and I think he 
had a reasonable amount of faith in me. And as I say, the first 
year, we kind of worked together, and the second year, he pretty 
much turned it over to me. It was great experience. 



LaBerge: 



Maddow : 



144 

87 the same token, it was a little difficult in that I had 
been carrying a fairly broad set of responsibilities at the 
district dealing with a wide variety of contract matters in 
particular, and while I was in the tax cases, I just pretty much 
had to shut everything else down. That was hard on my 
colleagues, and hard on some of the people who had relied on me 
for legal work. But you end up having to do those things 
sometimes. It s hard in a small office to take on major 
litigation projects. That s what I learned from the tax cases, 
and that s why, when I became general counsel, I was a little 
more prone to look for outside help on cases than Jack had been. 
My immediate successor, Alice Vilardi, was much more interested 
in litigating things in-house if possible, and was headed in a 
direction of building up the size of the legal staff in order to 
be able to carry more of the litigation load and not have to use 
outside counsel as much as I had done. Alice wasn t there long 
enough for me to be able to comment, or maybe even for her to be 
able to comment, on how well it worked. Bob Helwick has told me 
that they are still using outside counsel for some things. 

What s happened, I think basically, is that the legal 
entanglements that entities like East Bay become involved in now 
are so complicated that the big cases are hard to litigate 
exclusively with your own staff, if you re also trying to be 
house counsel. So it s always a balancing act. 

Well, I noticed there was--oh, it was like a review of all the 
departments. Mr. Reilley had to do a review of the legal 
department and what they were doing, and one of the is sues --or 
the board must have asked for this reviewone of the issues was, 
should you be hiring so much outside counsel? Is it cost- 
effective? Or should you be doing it in-house? And his 
recommendation was, we should be running the legal department 
just the way we do. 

I don t recall that specific incident, but I can certainly recall 
the consideration of that issue at a variety of times. I 
mentioned before that at the end of the drought when the 
district s financial reserves went quite low and that sort of 



145 

thing, and the Prop. 13 era came along, the district went through 
an era which I used to jokingly call the cut, squeeze, and trim 
era, when there was a real serious effort at cost-cutting and 
streamlining and realigning things. That was at a time in the 
late seventies and early eighties 

LaBerge: This thing was 1979, I just found it. 
Maddow: Yes, that s right in that period. 
LaBerge: It was an organizational study of EBMUD. 

Maddow: I don t remember the exact details there were several 

organizational studies that were done over time, and if I really 
paid attention to it--. That one may have been headed up by a 
firm the first name of which was Cresap [ spelling ]--Cresap, 
McCormick, and Padgett. That may have been their version of the 
reorganization study. And it was, How can we function better? 
How can we realign, et cetera? And in part, that was driven by 
some new board members who had heard the message of the voters at 
the Proposition 13 election and who were aware that the district 
had some horrendous rates. You know, we came out of the drought, 
declared the drought over, and immediately ended up having to 
look at a rate adjustment because big capital projects like 
rebuilding San Pablo and Chabot Dams were being pursued, and the 
district s financial reserves had been decimated. That rate 
increase in 1978 was very controversial. It really angered a lot 
of the ratepayers. As a matter of fact, it brought us lots and 
lots of candidates in the 1978 election when there had been 
virtually no candidates, no contested seats before that. 

So we had a board that was motivated to find ways to do what 
in the nineties is called downsizing, and to streamline and 
reorganize. And there were a lot of things that were done. But 
the legal department by that timelet s just think about that a 
secondby that time, the legal department consisted of Jack, 
Frank, me, and Bob Helwick. It didn t change. In 1981, we added 
a fifth attorney, Nancie Ryan. Nancie McGann when we hired her, 
now Nancie Ryan. That was the first time there had ever been 



146 

five. I think I was the first of the fourth attorneys. Wayne 
Witchez left, and then Bob Helwick came in to be four, Nancie 
came in to be five. Jack basically kept the size of the office 
the same. 

What we did with outside counsel in those days was largely 
in the insurance defense cases, tort defense cases. We didn t 
have the huge resources litigation matters at that time. The 
only big resources case we had going was the American River 
litigation, but it was not a big case then. It was a critically 
important case, but it was Bob and Jack writing briefs, because 
it was all being handled as a matter of law at that point. And 
when we have our day when we re just going to talk about the 
American River, I ll talk more about that. 

In 1984, when I took over, in the first week I was general 
counsel, I think it was the third day, all of a sudden, that case 
went on the fast track towards trial. It was going to be a huge 
trial, and there had never been any discovery. There d never 
been any workup towards trial, and there was no way that the 
lawyers we had in the office at that time Bob, Frank, Nancie, 
and myself that we were going to be able to handle that. 

And so, for the first time, we went to outside counsel for a 
big, significant matter, and we went to the man who at that time 
I considered to be California s leading water lawyer, Art 
Littleworth of Best, Best & Krieger in Riverside, to help us out. 
It was the right thing to do. But it set a pattern that made 
some directors and managers uncomfortable, because we started to 
spend a lot of money with outside counsel. 



147 



III THE AMERICAN RIVER CONTRACT AND CONTROVERSY, 1968-1994 



[Interview 4: March 27, 1997] ## 



Historical Background 



LaBerge: We decided that we would talk about the American River today, so 
why don t you give me the background that you had when you came 
to the district? 

Maddow: I came in May of 72. 

LaBerge: The district already had its contract with the Bureau of 

Reclamation. Had EOF [Environmental Defense Fund] already filed 
the suit? 



Maddow: No. That happened shortly thereafter. 
LaBerge: What was your involvement? 

Maddow: Well, let me take a step back and then come forward. The 

congressional authorization for the Auburn-Folsom South unit of 
the Central Valley Project was, I think, in 1965, and shortly 
thereafter, 67 or 68, the Bureau of Reclamation began 
construction of the Folsom South Canal. Auburn Dam was also 
getting started at that time. It subsequently was stopped, and 
I ll touch more on that a little later, but the Folsom South 
Canal was constructedactually, I think 25 or 27 miles of the 



148 

canal was built, basically from Nimbus, the afterbay reservoir 
below Folsom Dam, down toward the southern parts of Sacramento 
County. 

The utility district had decided back in the sixties, I 
guess, that its future water supply demand projections 
outstripped its supply, its safe yield from the Mokelumne system, 
and so an alternative or supplemental supply was needed. The 
goal was to obtain one of quality as close to that of the 
pristine Mokelumne quality as possible. So the district s water 
supply planners and its lawyers began negotiations with the 
United States to try to buy water from the Folsom South Canal. 
The American is a high-quality stream, and by taking the water 
out of the canal it was thought that you d be getting about as 
high a quality water as the Bureau of Reclamation could produce, 
depending upon where you got the water from the canal. 

Those negotiations were proceeding through the late sixties . 
Jack Reilley was the utility district s lawyer who worked on 
those negotiations, along with people from the engineering 
function. And I think there may have been consultants who were 
also involved Norm Murray and Harvey 0. Banks. 

The bureau s negotiating team included a well-respected 
attorney named Rita Singer. 1 I cannot verify this, but I was 
told that when the negotiation meetings were in Oakland, she 
would bring empty bottles with her and fill them with water 
high-quality Mokelumne River waterat a faucet next to the 
district s parking lot! 

At the same time that the utility district was trying to 
contract for water supply from that canal, others were, as well, 
including Sacramento County, and there were interests from both 
San Joaquin and El Dorado Counties, which were also quite 
interested. 



l See Rita Singer, Oral History Interview, Conducted 1991 by Malca 
Chall, Regional Oral History Office, University of California, Berkeley, 
for the California State Archives State Government Oral History Program. 



149 

At that time, it was believed that the Auburn-Folsom South 
unit would be a productive unit because Auburn Dam was conceived 
as having a fairly significant water supply yield, and there were 
entities in all three counties--El Dorado, Sacramento, and San 
Joaquin that wanted some of that yield, as did the utility 
district. I think it was in 1968 that an organization that was 
called- -the acronym was SRDWA, S-R-D-W-A. 

LaBerge: Oh. Sacramento-- 

Maddow: Sacramento River Delta Water Association? I think that s 

probably right. And SRDWA, as I recall, was basically El Dorado, 
San Joaquin, and Sacramento Counties or entities from within 
those counties . What they were trying to do was to get an 
agreement with the bureau that would enable them to, in essence, 
protect their right to contract for some of that water, the 
theory being that they were the counties or the areas from which 
at least some of that water originated and they should have sort 
of a local priority towards the contract negotiations . There are 
statutory priorities in the water code that are claimed by 
counties and agencies within watersheds from which Sierra streams 
originate . 

There were others who were also interested. Auburn and the 
Folsom South Canal were thought as providing the backbone for 
something called the East Side Division of the Central Valley 
Project service area. That would have been a way in which to 
move federal water south in a facility that would be farther east 
than the existing water conveyance facility (the Delta Mendota 
Canal). And there was a group called the East Side Project 
Association, or something like that, which was also interested in 
dealing with the bureau. 



150 
Agreement with U.S. Bureau of Reclamation and Others. 1968 



Maddow: But to make stories that I only know bits and pieces about short, 
the utility district entered into an agreement with the Bureau of 
Reclamation, SRDWA, and the East Side Division group that was in 
effect a way in which to say there will be contracts available 
for these various entities, and here will be their relative 
relationship with one another. And that agreement provided for 
the utility district to have the right to contract for I believe 
it was 70,000 acre-feet of American River water, regardless of 
what happened with the balance of the arrangements being made by 
the bureau. And then, under some contingencies, the district 
would have the right to an additional 80,000, making a total of 
150,000 acre-feet or 134,000,000 gallons a day on an average 
annual basis. 



State Water Resources Control Board Decisions 1356 and 
1400 



Maddow: That agreement was then blessed, if you will, or acknowledged by 
the State Water Resources Control Board, when it decided on the 
water rights applications that had been filed by the Bureau of 
Reclamation for Auburn Dam, in what was called Decision 1356. I 
think 1356 was in "68 or 69, right along in there. So after the 
four-party agreement and Decision 1356 took place, the utility 
district executed its federal water supply contract in 1970. 

When the state board decided 1356, it reserved jurisdiction 
with regard to instream flow needs, recreational values, fish 
values, et cetera, on the lower American. There was a separate 
water rights proceeding, and that decision was made, I believe, 
in April of 1972. It was called Decision 1400. 

LaBerge: Okay. I ve heard of that. 



151 

Maddow: And Decision 1400 was noteworthy because for one of the first 

times, maybe the first time in a really significant decision, the 
state board adopted what was basically an instream protective 
flow regime, which said in essence that the federal government s 
right to take water into its system, assuming that the Auburn. Dam 
was constructed, was going to be limited in ways which were 
intended to protect fisheries and recreation values. There were 
flow standards that were set up, et cetera. 

East Bay s right to take did not appear to be impacted by 
that water right, because East Bay s contract was independent of 
the existence of Auburn Dam. East Bay contracted for water from 
the Auburn-Folsom South unit, and East Bay was careful to be sure 
that whether or not Auburn Dam ever got completed, East Bay could 
in fact get 70,000 acre-feet of water and then upon the 
occurrence of these other contingencies or the lapse of the 
effectiveness of those contingencies, it could go up to 150,000. 
So East Bay thought, "We re okay. The Auburn decision doesn t 
really impact us. We re okay." 

And so the utility district signed the contract, and late in 
1972 the bureau announced that in fact it was ready to deliver 
water to the utility district at these gates, turnout gates, 
structures in the side of the Folsom South Canal, down near Grant 
Line Road in southern Sacramento County. The significance of 
that was it meant that starting in 1973, the utility district had 
to start paying for the water, had to pay for it, regardless of 
whether it takes it. 

I can remember in the first month that I was there in May of 
1972, when I started to hear about this to me unknown thing 
called the American River, one of the things that people were 
talking about was that there was this man named > [Ronald] Robie, 1 
who was a member of the state board. He was vice chair at that 
time, and he had written a paragraph that got into Decision 1400. 



Ronald B. Robie, "The State Department of Water Resources, 1975- 
1983," an oral history conducted in 1988, Regional Oral History Office, The 
Bancroft Library, University of California, Berkeley, 1989. 



152 

It said in effect that it was inappropriate that the utility 
district contract with the federal government to take the water 
out at Folsom South Canal because that meant the water would not 
flow down the lower American River, where it could be put to 
multiple beneficial uses, as he put it, and the utility district 
could pick it up later. 

The utility district didn t agree with that. It thought 
that Robie had thrown in something that was unnecessary, and 
there was a fair amount of consternation about it because he was 
a respected member of the state board, with considerable clout. 

LaBerge: Jack Reilley talked about that. He was still 
Maddow: I think livid is the right word. 
LaBerge: Fuming [laughing]. 

Maddow: I don t know whether Jack believes this or not, but in the mind 
of some people, the Robie paragraph spawned the American River 
litigation because it was in June of that year that the 
Environmental Defense Fund, the Oceanic Society, the Save the 
American River Association, and four individuals brought suit in 
state court, arguing that the utility district should not be 
taking water from Folsom South Canal, that the decision as to the 
point of diversion was inappropriate as a matter of state law, 
and that perhaps equally importantly the utility district 
shouldn t be taking any more water anyway because, after all, it 
could reclaim wastewater and achieve or accomplish the same water 
supply needs that the supplemental supply was intended to meet. 



153 
Litigation; Environmental Defense Fund (EDF) I. 1972 

Plaintiffs 



Maddow: The individuals who filed that suit- -I think I can remember them 
all. Two were people here, quite well known locally. Jean Siri, 
who is now, I think, a member of the East Bay Regional Park 
District board. She was an El Cerrito city councilwoman for many 
years, very active in environmental organizations, and is a 
delightful person. Makes no bones about the fact that she is a 
dedicated environmentalist. She s a good person. Her husband is 
Dr. Will [William] Siri, 1 who is one of the founders of the Save 
the Bay Association, I think, and is credited with much of the 
work that led to the creation of BCDC [Bay Conservation and 
Development Commission]. They re good people. 

And then there was a woman named Lucretia Edwards , who was 
from Richmond, who is still active in a number of environmental 
organizations . 

Gerry Meral, Gerry with a "G," who later served as deputy 
director of the Department of Water Resources when Ron Robie was 
its director and who is now the director of the Planning and 
Conservation League. He was at that time staff scientist for the 
EDF. 

The fourth person, I think, was named Peter Zars, Z-a-r-s. 
I think he was a member of the Oceanic Society. At some point 
they dropped out of the case, and so did he, and I don t remember 
the details of that. But I think he was the fourth person. 

In any event, at the time I arrived at East Bay, the utility 
district had started work on implementing the contract. It had 



See William E. Siri, "Reflections on the Sierra Club, the Environment 
and Mountaineering, 1950s- 1970s, " Regional Oral History Office, The 
Bancroft Library, University of California, Berkeley, 1979. 



154 

formed a special unit within the engineering organization, headed 
by a gentleman- -another Old Blue named Rich Kolm, who was then 
and is now one of my neighborsour children went to school 
together. His daughter, Peggy, who graduated from Berkeley, got 
her Ph.D. in molecular biology from M.I.T. in June, 1997. The 
district had hired the consulting firm of Jones & Stokes to write 
an environmental impact report. If you remember, we talked 
earlier about the fact that we were just entering into the era of 
environmental law. 



Environmental Impact Reports 



Maddow: And right away, evaluations were underway to determine the best 
way to route an aqueduct from the turnout point on the Folsom 
South Canal to the East Bay service area. The district was at 
that time looking hard at an alternative which would have 
involved building a pipeline to that turnout point in southern 
Sacramento County, going basically directly west, crossing under 
the Sacramento River in a siphon structure, proceeding west to a 
point where the right of way would intersect with, I believe, 
then an abandoned right of way at the old Sacramento Northern 
Railroad, which headed basically on a straight linewhat would 
that be?--southwest toward a point I think down near Chipps 
Island. It would have had to come across, under the western 
Delta, in probably a big tunnel structure, and then popping up in 
Contra Costa County and tieing into the Mokelumne aqueduct right 
of way. 

So that work was underway, EIR work, et cetera, when the 
lawsuit was filed. The lawsuit didn t stay that work or anything 
like that, but after not too much more time elapsed it became 
evident that the district was going to run into problems in 
proceeding with that work. I don t remember the exact sequence, 
but the work was in effect put on hold somewhere along in the 
early seventies. I don t recall whether that EIR was ever 



155 

completed. I don t believe a draft EIR was ever issued for 
public review. 



Sacramento County Joins Plaintiff Group 



Maddow: From the legal perspective, initially it was just the plaintiffs 
whom I mentioned. Several months later, six months later maybe, 
four months later, something like that, Sacramento County 
intervened in the case, with their intervention handled by the 
county counsel s office. The county counsel was a man named Lee 
Elam. And their intervention took a different tack than the 
environmental groups had started with. They in essence said that 
the county had a particular interest to protect in the 
recreational and aesthetic values of the lower American River. 
They had invested in a parkway along there. They had done a lot 
of things, spent money, et cetera, to protect that or to achieve 
the values that the river provided. 

There was incredible irony in Sacramento County s entrance 
into this case, because it too was counting on a water supply 
from the Folsom South Canal- -a bigger supply than East Bay MUD s. 
When the bureau built the canal, it constructed a 5-gate turnout 
structure for the district; about 100 yards north it built a 7- 
gate turnout to serve the Sacramento County entitites for which 
the water agency- -the board of supervisors was its legislative 
body- -was attempting to contract for over 200,000 acre feet per 
year, as I recall. 

The county s argument was that the utility district s 
diversion of water upstream of the parkway would be an 
unreasonable method of diversion of water in that it would 
deprive the parkway region of the lower American of some of the 
flows in a manner that was in violation of the state 
constitution. The utility district filed demurrers. We in 
essence said, "These plaintiffs can t state a cause of action." 
I ve forgotten the exact sequence. I believe the demurrers were 



156 

filed prior to Sacramento s intervention, and then a subsequent 
demurrer- -I ve forgotten the exact sequence. 

But in any event, it all culminated in a series of amended 
complaints, et cetera. The district s original demurrer against 
the environmental groups was sustained. They amended, they 
incorporated Sacramento s arguments about the recreational and 
aesthetic values into their amended complaint; the utility 
district again filed a general demurrer saying, "These plaintiffs 
can t state this cause of action against this defendant." 



Judge Brunn Sustains Demurrer, 1973 



Maddow: That general demurrer was sustained by the Alameda County 

Superior Court. The judge who heard the matter was a man named 
George Brunn, who was actually a municipal court judge from this 
district, Berkeley district. He had been sitting on special 
assignment on the superior court for a short time. I ve 
forgotten the exact details. At one time, I think I told someone 
he was up there for one day. I think that s incorrect. 

But in any event, through some sort of luck of draw 
circumstance, he ended up with this case. My recollection is 
that we got the judge s decision sustaining the demurrer in the 
early part of 1973, March, April, somewhere along in there. And 
he told us to prepare a judgment, and we immediately did. We 
didn t send it off. I was told to take this up to the court, 
submit it to the judge, wait until he signed it--you know, 
because the utility district really wanted this . 

So here I am. I had been at work there a short while. I 
was not a litigator. Hadn t really been terribly involved in 
this case because Jack had been handling it himself. We all knew 
something about the case because all the lawyers in the office at 
that timeFrank Howard, Wayne Witchez, Jack, and I--each of us 
took a part of the writing of the briefs and that sort of thing. 



157 

We each had our section. But I was a little bit new to all of 
this. 

So I walk in, hand the clerk the judgment and go sit outside 
and wait. After a few minutes, the clerk says, "The judge would 
like to see you." And I go, "Oops I Now what?" I went in, and 
he absolutely wanted to talk about this case, because as a muni 
court judge, he said, you don t get this sort of thing every day. 
He told me how he had taken the briefs home at night and he had 
spent the weekends and he had put all this time into writing his 
decision, and he had written a very thorough decision. 

He was particularly cognizant of the limitations of what a 
superior court judge could do in this challenge to what was 
basically this combination state and federal law scheme that had 
evolved through this water supply contract, and he noted where 
those limitations were. He wrote what I thought was just an 
excellent decision, recognizing the limitations on what a trial 
court could do. And he ruled in the utility district s favor and 
said, "Those plaintiffs couldn t state those causes of action 
against this district." 

In effect, he was saying there is a partnership now, a 
contractual arrangement, between the water district and the 
federal government that is principally a creature of federal law, 
and these plaintiffs have only sued the local agency. They ve 
got to get at the other entity as well. They ve got to get at 
the federal government, and they can t do that in state court. 
And, in effect, federal law preempts them from applying or 
seeking to have state law applied to just what the utility 
district is doing. 

Similarly, he said that with regard to the argument that the 
utility district should be reclaiming wastewater in lieu of 
seeking an additional surface water supply, he said there was a 
comprehensive system of law under which that issue needs to be 
addressed before state agencies, rather than being brought 
initially to the court. And, in effect, he ruled that the 
plaintiffs had failed to exhaust their administrative remedies. 



158 

They should have brought that matter before the State Water 
Resources Control Board. 

The plaintiffs appealed. The case began what I have 
sometimes referred to as the seven-year march, up and back to 
various and sundry appellate courts. Bob Helwick, who came to 
the district in 1976, did much of the research and writing from 
the time he arrived until, well, Bob actually has done most of 
the writing in the case. The utility district was successful in 
the court of appeal. The case went to the state supreme court in 
what is commonly known as EDF I. * I think it s in Volume 20 of 
California Third. 

In effect, Judge Brunn s ruling on our demurrer stood up, 
and his arguments about both federal preemption and exhaustion of 
administrative remedies were sustained. 



LaBerge: When he called you in to talk to you, is there more on that 
story? Like, did he ask you questions that 

Maddow: He wanted to talk about the case. He wanted to talk about this 
federal contract relationship. He wanted to know why I thought 
these plaintiffs had chosen to not sue the federal government and 
to bring the whole action in federal court. I don t remember 
exactly how I responded at that time, but they made a conscious 
decision at the very get-go that where they wanted this case to 
be decided was in a state court, on a state law basis, because 
the whole area of federal law was one in which they were afraid 
that they could not prevail. They frankly thought they had a 
better shot of prevailing by stopping the local agency from being 
able to contract with the federal government, rather than 
stopping the federal government from being able to contract with 
a local agency. I recall discussing that with Judge Brunn. 

I also recall Judge Brunn being concerned about the thought 
that wastewater reclamation could be a substitute for what the 
utility district had identified as future drinking water needs. 



. Inc. v. EBMUD (1977) 20 Cal. 3d 327. 



159 

The facts hadn t ever been argued in any of that, but I remember 
that he had a concern about that because he didn t understand it. 



There s not really a whole lot more to that story, but it 
was fascinating to me that here we had a judge who had never 
really seen anything like this, who wrote what I still consider 
to be the best opinion that s ever been written in the matter. 
We ve had lots of other opinions, but I just thought he did a 
heck of a job. 

LaBerge: What about that wastewater issue? Was that really a non-issue? 

Maddow: No, I believe that these plaintiffs were very serious about that 
issue. But they never were able to get it started from a 
litigation standpoint. In other words, Brunn s decision stood up 
and was sustained both in the court of appeal and in EDF I, by 
the state supreme court. In effect, later, when they were 
allowed to amend their complaint after EDF II, that whole issue 
had dropped out of the case. 

Now, reclamation has certainly not disappeared, and the 
utility district is one of the leaders in the field of 
reclamation. It s just that it is not being approached through 
the legal avenue that the Environmental Defense Fund tried to set 
up at the beginning. Instead, reclamation is being seen as a 
part of alternatives analysis when water projects are evaluated. 
In other words, there is a type of focus on reclamation that EDF 
thought was appropriate. It s just that in today s world it 
comes later in the project planning process than they were, I 
believe, trying to advocate when they initiated that part of the 
litigation. 

LaBerge: You were talking about Bob Helwick and the seven-year march. 

Maddow: The case was not real active. The utility district was not at a 
point where it was really pressing forward with planning to 
implement the American River project. In part, that was because 
the litigation was still going on, and in part because the 
utility district was otherwise occupied. Certainly, there was an 



160 

interest in it. I mean, after all, in 1976, 77, and 78 we went 
through this horrendous dry cycle, and we all knew we had to get 
back to the American issues. But while the case was still on 
appeal there was such a cloud hanging over the district s ability 
to proceed that it was not actively pursuing the project at that 
point. 



U.S. Supreme Court and the Delta Decisions 



Maddow: Now, after the first decision, EDF sought a writ of certiorari 
from the United States Supreme Court at that point. And 
fundamentally they were concerned --well, they were hoping to get 
the Supreme Court to review this question of whether or not 
federal law preempted their argument in which they were trying to 
attack the utility district s ability to contract with the 
federal government. 

At the same time that the Supreme Court had EDF s certiorari 
petition up there, the court got what became the case of the 
United States v. California. 1 that grew out of the "Delta 
decisions." You know, there was this series of state board 
decisions concerning export of water from the Delta by the state 
and federal government. The decisions were challenged. My 
recollection is that in the Delta decisions, U.S. v. California. 
I think there were something like twelve lawsuits that all were 
treated as a consolidated case. 

In any event, there was a federal preemption question that 
was right at the heart of that case, as well. The United States 
Supreme Court decided U.S. v. California I think in 78 and in 
effect said there s a role for state law in dealing with federal 
water projects, and the role in essence is that state law will 
govern the activities of the Bureau of Reclamation with regard to 
water rights, water supply, water quality, except when the 



^California v. United States (1978) 438 U.S. 645 



161 

exercise of state law would be inconsistent with congressional 
actions, with specific federal legislation. 

Well, the U.S. Supreme Court then disposed of EDF s 
petition 1 for certiorari by sending the case back to the state 
supreme court for reconsideration in light of U.S. v. California. 

LaBerge: Was that the title of that case, U.S. v. California? 

Maddow: I think so. It was either U.S. v. California or California v. 
U.S. 

LaBerge: Is that the Racanelli decision? 

Maddow: Oh, no. Racanelli is the decision on the next generation of 

Delta water cases. This decision grew out of the earlier round 
of what we now call Bay-Delta. We didn t call it Bay-Delta in 
those days. We called it the Delta decisions in those days. I 
think we re dealing with Decision 1378 in the Delta decisions, 
and Racanelli was dealing with Decision 1485. 



Litigation; EOF II 



Maddow: The case came back to the state supreme court. It was the [Chief 
Justice] Rose Bird court. Bob Helwick argued the case. I still 
remember that he stood up and was ready to talk, and Justice Bird 
wasn t ready to have him start talking yet. I remember how 
gracious she was in saying, "Just a moment, please, Mr. Helwick." 
Somehow, that s kind of rivetted in my mind. 

The supreme court this time ruled that these plaintiffs 
could state a cause of action against the utility district. 2 



439 U.S. 811 (1978). 

1 EDF II (EDF, Inc. v. EBMUD (1980) 26 Cal. 3d 183) 



162 



*t 



Maddow: -- which was written by Justice [William] Clark, who was a 

[Governor Ronald] Reagan appointee to this court and subsequently 
was in the Reagan cabinet, wasn t he? 

LaBerge: Yes. 

Maddow: I ve forgotten exactly what his position was. 1 Maybe Secretary 
of Agriculture? I ve forgotten. I should remember that. I 
think he was Secretary of Interior. But in effect the court held 
that the plaintiffs could allege that the utility district s 
diversion of water upstream of the lower American River 
constituted an unreasonable method of diversion of water, under 
Article X, Section 2 of the state constitution and the parallel 
statute, which is Water Code Section 100. 



LaBerge: 
Maddow: 



Now, up until then, what the appellate decisions had said 
was that these plaintiffs couldn t seek the aid of the courts to 
interrupt or interfere with or examine the decision of the 
utility district in its efforts to contract with the federal 
government. With this decision now they got the opportunity to 
question those decisions. They amended their complaint, the 
utility district demurred, arguing a whole series of arguments 
that were fairly similar to what had been argued prior to EDF II, 
those demurrers were overruled, and my recollection is that that 
was probably in, like, 1981, somewhere along in there. 

And all along is Bob Helwick still doing the ? 

Bob was carrying the bulk of the writing load. Jack was the key 
strategist. I had a role in it in the sense that I was part of 
the office, and Jack spoke to me in regard to the strategic and 
tactical stuff. But Bob was the key writer. Bob is far more a 
litigator than I ever was, and from the very beginning Jack had 



William Clark served as Secretary of Interior, Advisor to President 
for National Security Affairs, and Deputy Secretary of the Department of 
State. 



163 

him doing research and writing on this case. It was always sort 
of planned that way. 

LaBerge: And is he the one who did the argument, too? 

Maddow: He argued the case before the state supreme court, yes, and in 
other forums; Jack argued the earlier phases, but Bob carried 
more of the load later. 

LaBerge: Okay. 



Water Action Plan under General Manager Jerrv Gilbert 



Maddow: So after our demurrer was overruled there in 80, at this point 
the utility district was in the post-drought period. It had 
hired a new general manager, Mr. [Jerome] Gilbert, who, 
ironically enough, had been the executive officer of the State 
Water Resources Control Board at the time the Decision 1400 was 
written. He and Jack Reilley and I had a couple of interesting 
and sort of never finished conversations about the famous Robie 
paragraph [laughing], which Jack was still livid about. Jerry 
disclaimed any responsibility for it. And accurately so. It was 
really Robie s work. 



In any event, Jerry Gilbert was much more active in regard 
to the district s water supply planning in his early years with 
the district than Mr. Harnett, his predecessor, had been in his 
later years. Jack Harnett had tried mightily to get this 
contract off the ground and was frustrated through this 
litigation and a variety of political developments, and so I 
always think he went away a bit not defeated but frustrated by 
his inability to complete that project. He had thought it would 
be built during his time there. Then Jerry Gilbert thought it 
would be built during his time there, and that didn t work 
either. 



164 

But in any event, the district was starting in, in Jerry 
Gilbert s early days there, on a much more comprehensive approach 
to its future water supply needs. In fact, what was evolving as 
1983 unfolded was the early stages of what was at that time, I 
believe, called the district s Water Action Plan. It was a 
comprehensive look at where the district s water supply and water 
supply system was headed, and implementation of the American 
River contract would be a part of that planning effort. The 
planning effort was being scoped out; it wasn t being carried 
out. It was being identified and articulated as an effort that 
needed to be done. It hadn t started yet. 

Well, the litigation was still out there and was now, you 
know, some time or another, somebody was going to have to worry 
about how to resolve that litigation. But since the utility 
district didn t have any current plans for project 
implementation, I think the plaintiffs rested easy, but the 
Action Plan was coming. 

I don t remember exactly what triggered it, but discussions 
began about the possibility of settling the case, and in late 
1983, after it was known that I was going to replace Jack and 
prior to the time that Jack left, there were discussions between 
the lawyers, with Jack and Bob Helwick carrying them out. I was 
aware of them, but these were continuations of the litigation 
discussions. 

So there were discussions about the possibility of finding a 
way to structure a settlement. In effect, the basic concept was 
to recognize the coming Water Action Plan would have 
environmental documentation, and to have the plaintiffs dismiss 
their case without prejudice to their reopening it if they chose 
to attack the decision that came out of the Water Action Plan and 
the environmental documentation for the Water Action Plan. 

My recollection is that in return for their agreement to 
dismiss, the utility district was going to agree to pay 
attorneys fees to the environmental organization, and I have a 
vague recollection that that was a number that was just $40,000 



165 

or $30,000, after all those years. And that just is a reflection 
on different economic times. But it s also a reflection of the 
fact that this case had been a paper case up until then. There 
had never been a single deposition taken. There had never been a 
single interrogatory. Nobody had ever thought about an expert 
witness, or witnesses at all. Because there were demurrers and 
motions and briefs that were filed, and it was basically the kind 
of lawsuit that one or two lawyers could handle. The case 
basically had gone to the state supreme court for two written 
decisions, and to the U.S. Supreme Court, on a general demurrer. 

It looked like the settlement was in order and in good shape 
at the end of 1983. As a matter of fact, it s my recollection 
that several of the entities had already signed the settlement 
agreement. In particular, I believe Mr. [Tom] Graff had signed. 
He was representing the environmental organizations . But on the 
second or third working day, the third working day, I think, of 
1984 I became general counsel January 1, 1984, right? 



Attempt to Settle Fails. 1984 



Maddow: It seems to me it was Wednesday or Thursday of that week, I get 
this call from Lee Elam, and he says, "I m sorry, but the 
settlement is not going to work. The board of supervisors is not 
going to authorize me to execute the agreement." What had 
happened, basically, was that a difference of opinion of some 
sort, the details of which I have never known, arose between EDF 
and the Save the American River Association, and Save the 
American River Association was apparently able to contact the 
Sacramento area political people, members of the board of 
supervisors, and the settlement fell apart. 

Well, the first thing we did was to pull out the timetable 
because, you see, during the march up and down appellate court 
calendars, the five-year statute of limitations for bringing the 






case to trial had been tolled by action of law, not by anything 



166 

the parties had done. What we needed to do was to go in and say, 
okay, when was the case at issue since that starts the five-year 
period? And after we deduct all the time on the appellate court 
calendars, when does the case have to go to trial? And we 
figured out it had to go to trial in about six weeks. 



Preparing for a Trial on the Facts 



Maddow: Not a single bit of discovery had ever been done, and what was 

clear after the overruling of our demurrer was that this case was 
going to be tried on the facts. It was going to be a question of 
determining reasonableness of our point of diversion, which was 
going to lead inevitably to our having to put on a case based 
upon drinking water quality as being the motivating factor for 
our set of decisions, and balancing that set of factors against 
the potential for adverse impact to stream flows, recreation, 
aesthetics, fisheries, et cetera, in the lower American River. 

That s a factual case. You don t put something like that 
together in six weeks very easily, we didn t think- -especially 
when Jack Reilley had just left; Frank Howard wasn t working at 
full strength at that time; Bob Helwick and I were pretty busy as 
it was with other things; Nancie Ryan was in the office but was 
at that point primarily doing work for the district s personnel 
department and some of its administrative functions and so she 
was very busy and quite new to the district. So we were a little 
bit strapped! 



Hiring Arthur Littleworth s Firm, 1984 



Maddow: One of the first things that Bob and I decided- -Bob and I talked 
about, and I talked to Jack, and I decided, frankly, because in 
hindsight, if we had to do it all over again, I don t know 



167 

whether Helwick would have done it the same way. But what we did 
was the right thing to do. We started thinking about attorneys 
who could assist us in this case. The first call I made was to a 
man named Art Littleworth at Best, Best & Krieger in Riverside. 
Art was not available, and so I got his partner, Dallas Holmes, 
who is an old friend. Dallas is now a superior court judge in 
Riverside County. 

I said, "We ve got this case." Of course, they all knew 
about it because this case had been to the state supreme court 
twice and everybody had read about it. I said, "We have a 
problem here." And Dallas said, "Don t do anything until I get 
back to you or Arthur gets back to you. We d love to work on 
this." Well, it was going to take a little while, and Arthur was 
a very busy man at that time. 

And so, to hedge my bets, I made a second call. I called a 
man named Paul Engstrand, from a firm called Jennings & 
Engstrand, down in San Diego. They represented the Imperial 
Irrigation District. The reason I called Paul was that at that 
time Imperial was facing a series of allegations, both in 
litigation and before the state board, that its water use 
practices were in violation of the same provisions of the 
constitution that were at the heart of our case, Article X, 
Section 2, and the reasonable use doctrine. 

And so I knew that Paul had done a lot of legal work on 
these issues, and I thought he is an experienced litigator and 
water law professional who has a big firm behind him and who has 
been working in this area. I really liked and respected him. So 
maybe. 

I called a third person. I called a woman named Anne 
Schneider. I had first met her when I think she was still Anne 
Jeffrey, and she was a very young lawyer I think out of the 
[U.C.] Davis Law School, who had really impressed me in some work 
that she had done for the Governor s Commission to Revise 
California Water Law, which had beenlet s see, who appointed 
that commission? I guess it was Reagan when he was governor. It 



168 

was chaired by Chief Justice [Donald] Wright, and it had a staff 
which included Anne Jeffrey and Cliff Lee, who is now in the 
attorney general s office, and two or three others. And it had, 
as members of the commission there were quite a number of 
people, but the person who really stood out among the commission 
members was Arthur, Art Littleworth. That s where I had really 
formed an opinion that at that time he was the very best of 
California s water lawyers. He and Adolph Moskovitz just were 
head and shoulders above everybody else at that point in my mind. 

But I loved the way Anne wrote, so Anne was one of the 
people I called. She was a young lawyer with a Sacramento law 
firm at that time, and it just wasn t going to work out for her 
to be able to play the lead role I would have wanted her to play, 
had we been able to use her firm. 

But as it turned out, my first choice was Arthur, and Arthur 
was available and just jumped at the chance to work on the case. 
I wanted him because not only was he knowledgeable, not only was 
he just a terrifically effective writer, but he has a 
statesmanlike quality about him that I thought was going to be 
very important. At this time, the utility district had a board 
that was very environmentally conscious, and here it was being 
sued by environmental groups . I thought it was very important 
that we had somebody who was going to be not a lightning rod type 
attorney but someone who would have statesmanship and diplomacy 
among working attributes, and Art was just the epitome of all 
that. 

So in early 1984, in January, we went to the board of 
directors and got authority in closed session to retain Arthur s 
firm to assist the district in this case. 



LaBerge : 



Maddow: 



And the board was the new environmental board? 
partially? 



Or only 



No. This was 1984. The real strong environmentalist on the 
board at that time was still Helen Burke. 



169 



LaBerge: But not Nancy-- 



Maddow: Nancy Nadel had not yet come on the board. Helen was at that 
time a very effective board member, but she didn t have other 
votes, so her effectiveness was in argument and helping to 
position the board. Probably, if I can use sort of the political 
spectrum by way of analogy, Helen s role on the board resulted in 
the board as a whole moving further to sort of the political 
left, if you will, than would have been the case otherwise. She 
had a significant impact in that respect. 

There was also a man on the board named Jack Hill at that 
time, who was Helen s closest ally on the board. Jack was not as 
active an environmentalist as Helen, but he certainly was 
sympathetic with many of her concerns. We had a good board, 
sensitive board, hard-working board. It was still very much 
caught up in trying to run the utility district in the most 
businesslike and cost-effective manner it could, but it also knew 
about the significance of this issue. And so we got unanimous 
board authorization to retain Arthur and his firm to represent 
the district in this case. 



Statute of Limitations Issue: Meeting at Norman s 



Maddow: A week or two after that, we had one of our first big strategy 
meetings in Oakland. Arthur couldn t be there that day because 
he had to make a court appearance in another matter. The two 
lawyers, partners from his firm who came up were named Ron Kohut, 
and Dick Anderson. We had a morning meeting which included 
myself and Bob Helwick and the district s technical team, but the 
general manager wasn t there. We had arranged to have lunch with 
him at a restaurant called Norman s. 



LaBerge: Ohl I remember Norman s, 



Maddow: Is that on College? 



170 



LaBerge: College and Alcatraz? 



Maddow: Was it Alcatraz? I can t remember that part, but I know it s 
College. Across from the Buttercup right there by where now 
Dreyer s Ice Cream has its headquarters, I think. Well, anyway, 
we went into one of those tables at Norman s. Remember, it was 
kind of dark and it had these heavy lights hanging right over the 
table. Big, fluted glass shades. Very heavy [motioning). And 
we sit down, and we start to tell Jerry Gilbert the outcome of 
that morning s efforts. Key to our strategy was we don t have 
time to put this case together from the standpoint of preparing 
our factual information, so our collective recommendation of the 
general counsel and special litigation counsel is that the 
, utility district seek to enter into a stipulation with the 

-plaintiffs to extend the five-year statute so that we don t go to 
trial in six weeks. 



Well, the general manager said, "Absolutely not." In much 
stronger words. And I ll never forget it because not too long 
after that, maybe fifteen minutes later, Dick stood up to go to 
the rest room, and he darn near knocked himself out on that light 
fixture. I ll never forget it, because he kind of stood up like 
that [demonstrating] , and literally all of the color went out of 
his face at that point. I think that was the last day we ever 
saw Dick Anderson on that case [laughing] . 

LaBerge : [ laughing ] 

Maddow: He just couldn t- -that just--boy, that was hard for him. But in 
any event, the other side was interested in stipulating, and at 
that point we thought that it would be prudent to stipulate, to 
buy ourselves some time to put together the case. Jerry said, 
"No dice. We ll go ahead on the basis of what we know. We know 
our water quality case and our water supply case better than the 
plaintiffs can possibly know their recreation and fisheries case 
by the time this trial is supposed to open." And so we said, 
"Okay." 

LaBerge: In the district, does he have the final say? 



171 

Maddow: Well, yes. Yes, in the sense that if it came to a confrontation 
between me and him before the board of directors, there was no 
way I would have prevailed. I was the brand-new general counsel, 
and he was the very experienced general manager. But it s much 
more than that. The general manager, under the municipal utility 
district act, runs the district. The general manager of a 
municipal utility district has authority that is more akin to a 
strong city manager than anybody else in government that I m 
aware of. It s a stronger type, a more thorough and 
comprehensive type of authority than the general managers of most 
water districts have. 

And this general manager clearly had the support of the 
board, and when he said we were not going to stipulate, that was 
all there was to it. We certainly discussed it. We laid it all 
out, we told him what all the options were. I don t mean to 
sound like I m being critical of him, because I m not. He was 
fully advised, both before and after he told us what he wanted 
done, and he made the conscious choice, and we said okay, and we 
did it. 



Trial Before Judge Bancroft. Alameda County. 1984 



Maddow: And so the trial actually opened I think it was April 9, 1984. 
By this time, it was clear to the county and the environmental 
groups that they were not ready to go to trial, and they started 
looking for a way to buy time. So we were more ready than they 
were. Let s put it that way. We weren t really ready, but we 
could have done it. After all, we were defending. They had to 
go first, and they had the burden of proof, and so we figured 
that we could cross-examine them in a very effective way and 
defeat much of what they had to say, and by the time they were 
done, we would have a case in chief to put on in defense. So we 
were ready. 



172 

On the first day of trial, Sacramento County put on one 
witness. He was a county parks official who testified about the 
American River Parkway, Sacramento County s American River 
Parkway. And I ve forgotten the exact sequence, but as I recall, 
Save the American River Association was no longer represented by 
Tom Graff. They had split, and there was a man who was a lawyer 
I can remember what he looked like, but I can t remember hs 
name who was a member of SARA s board, who appeared and my 
recollection is what he said was they needed more time to get 
independent counsel. 

Sacramento County appeared through an attorney named Dennis 
DeCuir. Dennis was a litigator with a Sacramento law firm of 
McDonough Holland & Allen. That was Martin McDonough, who was 
one of the real stalwarts of California water law through the 
fifties and sixties. He faded a bit towards the end of the 
seventies. I think he passed away in the early eighties. But in 
any event, they were a very well-respected firm. Still are. 

Dennis DeCuir had been engaged by the county counsel s 
office to play the same role for the county that Art Littleworth 
was playing for the utility district. And they made a motion to 
send the case to the State Water Resources Control Board under 
Water Code Section 2000. They asked the court to request the 
board to serve as referee, in effect, on issues that were within 
the board s particular area of expertise. 

That was kind of galling to us because, after all, we had 
defeated the allegations with regard to wastewater reclamation on 
the grounds that these people should have started before the 
state board over there. But here we got to the point where we 
were ready to settle the case. The other side was unable to 
reach full agreement on that. We said, "Okay. We re going to go 
to trial. We re going to go quickly. We re not going to fool 
around." And lo and behold, the other side comes back and says, 
"Oh, let s go to the state board." 

The judge at that time was Richard Bancroft. 



173 



LaBerge: Where are we? 



Maddow: We re in the Alameda County Superior Court, and the judge is 

Richard Bancroft, who frankly had never seen anything like this 
case and was beginning, I think, to feel like it was going to be 
a bit overwhelming. Which it was. And I think he welcomed that 
motion. In essence, between April the ninth and sometime in 
November, it was very clear that the motion was being granted. 



Referral to State Water Resources Control Board 



Maddow: A lot of effort on the part of lawyers ensued between April and 
November to get the judge to the point where he was willing to 
sign the order, actually referring the case to the state board. 
He made it clear very early on that he wanted to send it to the 
state board. Frankly, we thought going to the state board was 
probably not the worst thing in the world because we felt very 
confident that we could do well there, because we thought we had 
a strong case, not because--! f m not saying on the basis of 
politics or any of those things. We just thought that we had a 
strong case from both a legal and factual standpoint. 

In any event, we resisted, but the judge ruled that the case 
would go up there. It took until November for him to sign the 
order containing the twenty-one issues of law and fact on which 
he wanted the assistance of the state board with its particular 
expertise, prior to the time that he ruled on the case that was 
before him. What was before him was a case seeking injunctive 
relief, declaratory relief, and a writ of mandate, in effect 
compelling the utility district to do something other than take 
its water out of the Folsom South Canal. 



For example, one of the allegations was that the utility 
district should use its best efforts to rescind or re-form the 
contract, and the judge was being asked to do that on the basis 
of an argument that the contract provided for a point of 



174 

diversion which was unreasonable as a matter of law. He said, "I 
can t rule on that until I get these twenty-one questions 
answered." The parties got a chance to help shape those twenty- 
one questions. We won some, they won some, the judge went his 
own way on some. 

And so in November we headed off to Sacramento. 
LaBerge: Still with Art Littleworth s firm? 

Maddow: Yes. And it was primarily Art. Ron Kohut, who was a litigator, 
was part of the team. They had a young associate named Ariel 
Calonne, who is now the city attorney of Palo Alto, one of the 
brightest and most hard-working attorneys I ve ever known. He 
had the capacity to grind out [snapping his fingers once] more 
paper in a short time than just about any lawyer I ve ever known. 
Good paper. 

By this time, Mr. DeCuir had been replaced by Stuart Somach. 
Stuart had been in the office of the solicitor of the Department 
of the Interior. He had been the Bureau of Reclamation s lawyer, 
and he left federal service and went to McDonough Holland & 
Allen. This I believe was the first case he handled for them, or 
at least one of the first cases. Stuart is a very fine lawyer 
and headed up the team for the county. 

At this point, the county had moved to center stage. 
LaBerge: Okay, the County of Sacramento. 

Maddow: Up till this time, Tom Graff had been the primary lawyer on the 
other side, and Lee Elam had a more secondary role. But by this 
time, when the case had evolved into something where there was 
going to have to be mastery of a lot of facts, Somach took center 
stage, and the county took more of a lead role. EOF was 
represented by Tom, still, but he began to bring in John 
Krautkraemer. John is dead now. He was killed in a tragic 
skiing accident here about two years ago. 



175 
LaBerge: That name is unusual. I think I remember that. 

Maddow: Outstanding man. Really a fine person and very good lawyer. It 
was one of those shocking, tragic deaths. Just a very young man. 

But in any event, Tom and John worked on the case. John had 
more of the laboring oar during these years. Tom certainly was 
involved, but he had lots of other things he was doing as well, 
of course. 



H 



LaBerge: Okay, so you had two interventions, 



Hearings Before the State Board. 1984-1988 



Maddow: Yes. The case reached the state board in November or December of 
1984. In early 1985 the state board staff began to carry out a 
series of meetings. It was almost like scoping what it was that 
they were going to have to do, because their first task was to 
prepare a work plan to take to their board to show the board how 
they were going to go about accomplishing the court s order. 

LaBerge: Was Ron Robie still- - 



Maddow: Ron Robie was no longer on the board. At this time, he was the 
director of the Department of Water Resources, appointed by 
Governor [Edmund G. , Jr.] Jerry Brown. 

Some of the parties with whom these SWRCB meetings were held 
included state and federal agencies. The Bureau of Reclamation, 
the California Department of Water Resources, the California 
Department of Fish and Game, for example. And the state board 
began a process of developing this work plan, developing a 
schedule for the submission of evidence, interviews with expert 
witnesses were to be conducted, et cetera. 



176 

The County of Sacramento put in an extensive bunch of 
material. The environmental groups just kind of followed them 
along, didn t add anything of their own. But it wasn t too long 
after that, later in 1985, that the California Department of Fish 
and Game decided that it would intervene in the case, or seek to 
intervene, on the side of the plaintiffs. Their intervention was 
for the purpose of addressing issues related to fish and wildlife 
that could be affected by the district s diversions above the 
lower American River. The significance of having the Department 
of Fish and Game come in is--the principal significance, other 
than the obvious symbolic significance of having a state agency 
file against you, is that it brought in the attorney general s 
office. So now the California attorney general joined the 
attorney team on the other side. 

And not too long after that, a second state agency, the 
State Lands Commission, did the same. I remember Art Littleworth 
telling me on the telephone one day that he felt like he was 
watching a football game in which the official ought to throw a 
flag and say that there s now a penalty for "piling on." 

LaBerge : [ laughing ] 

Maddow: In any event, the Lands Commission intervened because under state 
law and the California Constitution, as I recall, the Lands 
Commission has jurisdiction over the bed and banks of streams. 
And so their intervention was for a limited purpose, and that is 
to deal with riparian issues. I don t think those interventions 
were inappropriate, from a legal perspective. It sure didn t 
help things to be going in and telling our board, however, that 
we now had two state agencies and two separate deputy attorney 
generals in the court room, the water board room, et cetera. 

In any event, the state board proceedings began to unfold. 
The board originally had estimated that it would be about two 
years, and as I recall, a quarter of a million dollars [$250,000] 
to do this work. 



LaBerge: Who pays? 



177 

Maddow: We had to pay for it- -that is, the parties did. In the long run, 
it took much more than that. Well, the state board got the order 
in November of 84, and they issued their final report in June of 
88. They conducted lots and lots of interviews. The staff had 
a process that they used where it wasn t direct and cross- 
examination or anything like that, but the parties identified 
their witnesses and prepared reports and exhibits, and the state 
board staff and an engineer and a lawyer and an environmental 
specialist, three or four people. And they spent a lot of time 
working with the legal and technical teams of the parties. 
Literally weeks of meetings, not consecutive. You know, there 
would be three days here and two days there. But lots and lots 
of time was spent in exhibits 



The State Board s Team 



LaBerge: Any specific persons that were 



Maddow: You mean from the state board? 



LaBerge: Yes. 



Maddow: The head of the team was a man named Ed Dito. Ed was an 

engineer. The lawyer wasI ll give you the way his name appears 
everyplace. M period, G period, Buck Taylor. [M. G. Buck 
Taylor] . Buck is a guy who I had met back in the days of the 
drought stuff, and also Buck and I had worked on Perm Mine back 
in 1978. He was the lawyer for the regional board. 

But in any event, they had oh, gosh they had an 
environmental specialist named Doug Alb in. They were 
significant. Ed Dito was the most significant, and Buck. Ed was 
called the program manager. He was an engineer by profession, 
but they called him the program manager. The engineer was a man 
named Mark Stretars. They were a pretty good team. 



178 

The state board doesn t have all the resources in the world 
and can t always devote as much attention to a case as those four 
men devoted to this case. But frankly they did a pretty thorough 
job. They looked at all of the evidence produced by all of the 
parties, including interviews with expert witnesses and lots and 
lots of technical reports. And did so as staff for a regulatory 
agency should do. They came to it with no bias, they were 
objective, they were as tough on one party as the next. Frankly 
none of these things are ever perfect, but I thought they did a 
pretty darn good job. 

It s easy for me to say that in one respect because I 
frankly think that the decision that they rendered was more 
favorable to the utility district than it was to the plaintiffs. 
But I m trying to separate that and just tell you that the way in 
which they went about their work was tedious and slow, and we all 
griped about that, but I frankly think they did a pretty good job 
and produced a pretty good report. 

They initially produced a draft document in February of 
1987. It was in five or six volumes. There was an executive 
summary and then a legal report and a lot of technical volumes. 
Altogether it s a stack of paper about six inches high. When 
they initially asked the parties to submit evidence and reports 
and materials, one of the things they asked the parties to do was 
to submit proposed physical solutions. Now, a physical solution 
is a real important doctrine in California water law. The term 
really goes back to a supreme court case called Lodi v. East Bay 
MUD. 1 A 1936 supreme court decision which in effect says that 
when there are conflicting and competing claims to a limited 
supply of water, that one of the things that the court can do is 
to fashion a compromise solution that allows some of those 
competing and conflicting claims to be satisfied. It s a sort of 
formalized way of reaching a compromise. It s an encouragement 
to the court to look to these kinds of things . 



Lodi v. East Bay Municipal Utility District (1936) 7 Cal. 2d 316. 



179 



Proposed Physical Solutions 



Maddow: To its credit, the state board recognized early on that a 

physical solution might be possible. We worked really hard on our 
physical solution. My recollection is that it was our Exhibit 
33, although that may be way off. I have a copy of it, and I d 
be happy to let you borrow it. I won t let you keep it, because 
it s the only one I ve got. The district may have others, but-- 
it has an exhibit number on it. 

But all of our documents were in these sort of brick-red 
covers like this [the file in his hand]. I don t know if I have 
an exhibit number on this. No, I don t. I m pretty sure it was 
our Exhibit 33. And what we basically did was to make an offer 
to subordinate our take of water to those instream flows that 
were a part of Decision 1400. Remember I said that Decision 1400 
was in the Auburn water rights decision. By 1985 we were pretty 
sure there wasn t going to be an Auburn Dam for a while. 

LaBerge: Right. 

Maddow: And so the Auburn flows wouldn t ever really kick in, although 
the bureau was attempting to abide by them. I mean, they had 
plenty of water with which to do it without Auburn. They had 
plenty of water with which to meet those flows. And we said, 
under virtually all circumstances, we would not take water if 
doing so would cause the bureau to exceed or to invade the 
limits, to not be able to comply with the recreation and instream 
flow regime of D-1400. 



It took a lot of doing for us to make that offer. A lot of 
hydrologic modeling runs, a lot of thinking, and we put that in 
our case early on. It was interesting because it kind of forced 
Sacramento County into some interesting thinking. There are some 
enormous ironies in this whole American River litigation. I told 
you that when Folsom South Canal was built, it included a gate 
structure, a turnout structure, at which East Bay was supposed to 
collect its water. There are five gates in that structure. 



180 

About a hundred yards up the canal from there, there is a 
seven-gate structure. And that structure was built for 
Sacramento County to take its water out of the Folsom South 
Canal. You see, the utility district was trying to contract for 
150,000 acre-feet out of the Folsom South Canal. Sacramento 
County was trying to contract for 230,000 acre-feet to be taken 
out a hundred yards upstream from East Bay MUD s point of 
diversion. 



Sacramento County s Issues 



Maddow: How ironic for Sacramento County now to be leading the charge, 

arguing East Bay shouldn t be allowed to take the water out in a 
manner and at a place which would prevent it from going down the 
lower river when, in fact, they had been planning for many years 
to do the same thing. But we forced the issue with our physical 
solution, and I think those parts of the county that knew that 
there was still this water supply plan began to feel that maybe 
they needed to think in terms of something that would allow them 
to still continue to get some of the water they were looking for. 

Sacramento County s identified needs for the water were for 
some agricultural uses in the southern part of the county, but 
they were also for some municipal and industrial uses in the very 
rapidly growing portions of the county to the south of the city 
of Sacramento. Elk Grove and Zone 40 and those areas. So the 
county added that for their physical solution, as well. I don t 
remember the details of it, but I remember that they put in a 
physical solution that would not in effect force East Bay totally 
off the river. 

Mr. Somach came under serious fire, politically and in the 
press, as the lead lawyer for the county, for having countenanced 
the thought of anyone taking any water out of the river. Of 
course, he was countenancing the thought because that s what his 
client, at least part of his client, wanted to do. 



181 

Similarly, the city of Sacramento had designs on increasing 
its take of water from the American River. The city of 
Sacramento has two water treatment plants. One is on the 
American River, at H Street, about, oh, what is that? A mile and 
a half or two miles or maybe three miles, upstream of the 
confluence of the American and the Sacramento. Just upstream of 
the mouth of the American, really. 

They have a second plant which is out on the Sacramento 
River. The H Street plant is the bigger plant, more modern 
plant, and the Sacramento River plant was the one that was more 
prone to problems related to the turbidity or, in particular, the 
pesticides and herbicides that come off the rice fields north of 
the city of Sacramento along the river. And that plant has been 
a troublesome one. 

And so the city had these long-standing plans to double or 
even quadruple the size of its plant down along the reach of the 
American River from which people aren t supposed to be taking 
water under the political equation, mantra, that was developing 
as county people were trying to fend off East Bay. 

The city of Sacramento serves water not only within the 
Sacramento city limits but it serves extensive areas outside the 
city limits, and its need to expand that plant was largely driven 
by growth outside the territorial boundaries of the city. One of 
the offshoots of that was at various and sundry times 
consideration of other forms of government in the Sacramento 
area. But the thought of extra-territorial water service by a 
government entity that the people who were being served had no 
voice in, was a concern to some people. 

Well, I m digressing on all of that. But the whole question 
of whether or not a physical solution was possible was aired 
quite early. It was quite troublesome. Because of that early 
airing, it tended to force the county to a position, or 
politically force them to a position where, more and more, they 
were finding themselves having to argue East Bay should be 
totally off the river and there shouldn t be any diversions 



182 

between Nimbus and the mouth of the river. That was troublesome 
to the Sacramento city water people. I know that sort of off the 
record because I knew a man who was one of the managers of that 
water utility, a very fine man who was very honest about his 
belief that higher quality water was available if he could take 
it off the American than if he had to get it someplace else. 

But it was very clear that the lines were being drawn and 
East Bay was to be fought off, and if fighting them off meant 
nobody could take water out of the American, so be it. 

LaBerge: Was part of it that East Bay was coming from down here? 

Maddow: Absolutely. Absolutely. We were coming from a long way away, 
and we were trying to buy water that they considered to be part 
of their birthright. It s not called River City for nothing. 

LaBerge: Right, sort of counties of origin kind of thinking? 

Maddow: Very much that type of thinking. Not always expressed in terms 
of county of origin or area of origin or watershed of origin and 
legal protections, but the philosophy of it was certainly there. 
And there were lots of other elements of all of that. We were 
told that we ought to be taking water out of the Delta if we 
needed more water, and why do we need more water, anyway? I 
mean, there was always an argument about whether or not the 
utility district was trying to get more water in order to fuel 
growth. 

There were arguments about such things as conservation and 
reclamation. Arguments about whether the Delta in particular was 
an alternative source. At one point in the early eighties, a 
group of twenty or so congressmen, primarily from southern 
California, signed a letter that was in effect saying that East 
Bay ought to come out of the Delta, and there were people within 
the political circles who were quite sure that some of the people 
from the Metropolitan Water District or other entities in 
southern California might have a hand in that happening. 
Remember, this was shortly after the defeat of the Peripheral 



183 

Canal. And remember where the votes lay from defeating the 
Peripheral Canal. 1 I mean, 94 percent voting against it in the 
East Bay service area. So, you know, there were lots of politics 
on sort of the broader scale that were afoot, as well. 



Senator Greene s Commitment on S.B. 2458. 1986 



Maddow: At one point in all of that, Assemblyman [Phillip] Isenberg and 
State Senator [Leroy] Greene from the Sacramento area had talked 
about trying to get the legislature to adopt new law that would 
in effect prevent East Bay from being able to take water off the 
American River. Senator Greene had a bill [looking through 
papers] that was introduced in 1986. It was Senate Bill 2458. 
I ll give you a copy of this. 2 Actually, I ll let you make 
copies of this because I d kind of like to hang onto these, but 
it was in April of 1986. In effect, it was going to prohibit the 
construction by any public agency of facilities within or 
upstream of the Delta in order to transport high-quality American 
River water through or around the Delta. Instead, it should be 
allowed to flow downstream. 

We got into some conversations with Senator Greene. I don t 
have a date on this document. I have always regretted that. But 
I know it was in early 1986 that I was in his office, along with 
his staff people, and as I recall, I had a utility district 
engineer with me. We struck what I thought was an appropriate 
compromise. It would have amended his legislation to say that 
[reading], "the East Bay Municipal Utility District may exercise 
rights under its contract for a water supply from the CVP, only 
to the extent that delivery of that water will not cause flows in 



Proposition 9 (June 1982). 
2 See Appendix 



184 

the American to be diminished below the minimums of Decision 
1400. lfl 

I suggested that, and we had it typed up, and the senator 
signed it, and I signed it, and the bill was set to be heard in 
the senate. I guess it was called the Water Committee in those 
days. It was chaired by Senator [Ruben] Ayala of southern 
California. And his chief staff person was a man named Steve 
Macola. We reached this understanding. Senator Ayala had never 
been particularly happy with East Bay because he had been an 
advocate of the Peripheral Canal, and he thought that East Bay 
had not helped when it might have. And so he was prepared to 
take Senator Greene s bill to hearing. 

When I saw Mr. Macola later on the day that the senator and 
I had signed this piece of paper, I said, "Steve, we re ready to 
go to hearing." He thought that they were going to deliver a 
blow to East Bay, I remember. I said, "Steve, we re ready to go 
to hearing . The senator and I have been talking this morning , 
and we reached agreement." And he said, "On what?" I showed him 
the piece of paper. He looked at it, and he shook his head, and 
he looked at me, and he said, "Poor Leroy. He won t know what s 
hit him." 

And sure enough, other people, a staff person from 
Assemblyman Isenberg s office and people from local political 
groups, et cetera, just started really berating Senator Greene 
that afternoon for having caved in to the utility district or 
whatever it is they thought he had done. But to his credit, he 
said, "I agreed. I signed off. Here s the piece of paper Maddow 
and I signed off." And he said, "I m not going to go back on my 
word." So he pulled the bill. Rather than have it go to hearing 
and become some kind of embarrassment for him or me or somebody. 
Rather than force it to an issue, he pulled the bill. And he did 
so because he had given me his word on something, and he wouldn t 
go back on his word, and I give him a lot of credit. Some very 
nasty things were said to him by other people at about that time, 



: See Appendix. 



185 

and he endured a lot of criticism. And I was very impressed with 
the fact that he stuck by his word. 

Senator Greene was an engineer by profession, as I recall. 
He had the ability to listen to what we were saying and to 
evaluate it as an engineer, and I think he thought that Decision 
1400 gave the Sacramento area an enormous layer of protection 
that it hadn t previously had. And I know that he knew that 
Auburn Dam would probably never be built and therefore the 
protections of Decision 1400 had an ephemeral quality to them. 

And as a result, he thought that by having East Bay, which 
did have the wherewithal to build something, by having East Bay 
commit to a measure that was intended to continue those D-1400 
protections , he thought he was doing something that was to the 
distinct advantage of his constituency. And in hindsight, I 
believe he was right, and I think he made his decision on a fair 
basis. He didn t make his decision on a political basis. And 
politics were ruling the day in that era on these issues, so he 
suffered for it. He was not a pure politician. 



Assemblyman Isenberg and Water Meters 



Maddow: Assemblyman Isenberg, on the other hand, was unwilling to listen 
to some of the technical arguments. He knew that if he listened 
to them that we did a pretty good job. You see, Assemblyman 
Isenberg had been the mayor of Sacramento at the time that 
Sacramento was dealing with its needs to have a regional 
wastewater facility built. And the person who was probably more 
instrumental than just about anybody else in the way that plant 
ultimately got built was Jerry Gilbert, who was our general 
manager . 

Jerry Gilbert and Phil Isenberg knew each other well and had 
a healthy, mutual respect, and I believe Isenberg knew that if it 
came down to an argument about the facts, Gilbert would probably 



186 

be able to win out. And so he never wanted to talk about the 
facts. He would just argue on the basis of politics. 

One day he appeared at the Water Committee of the 
Commonwealth Club in San Francisco, and he talked that day about 
all the things that were wrong with East Bay s plans for water 
supply, for taking its water supply out of the American. And he 
talked purely on political and emotional grounds. I was there, 
and I asked him a question about something that the Sacramento 
board of supervisors had just done. They had approved a series 
of developments in the southern part of the county, developments 
for which Sacramento County was supposed to obtain water from 
Folsom South Canal and now had been unable to, and so what they 
were doing was approving these developments based upon mining 
groundwater from already seriously depleted aquifers , overdraf ted 
aquifers . 

And so I raised some questions of Assemblyman Isenberg about 
what was going on with regard to his own area s water supply 
planning, in contrast to what the utility district was trying to 
do. And of course I was able to bring in the fact that the city 
of Sacramento does not meter its water. I said, "How can you on 
the one hand say what you re saying with regard to East Bay and 
the reasonableness of its water supply program, when in fact the 
city and the county of Sacramento have these elements of their 
water supply programs which appear to raise the same kinds of 
questions?" 

And in front of the whole Water Committee--there were maybe 
a hundred people there, maybe fifty people therehe said 
[speaking brusquely and quickly], "What do you expect from us, 
consistency?" 

LaBerge: [chuckling] 

Maddow: I ve never forgotten that. I thought that was just great. 

During that same period of time, the utility district was 
not just defending itself. We were trying to point out that 



187 

Sacramento County was doing some things that were questionable. 
In fact, in regard to a couple of the land-use planning decisions 
that were made, the utility district filed suit against the 
county, in particular with regard to an area called Zone 40, 
which was south of the city of Sacramento. 

We attacked the adequacy of the environmental documentation 
that was done for some very large subdivisions, on the basis of 
inadequate attention to the water supply issues. And, in fact, 
those county decisions were in effect held up. We were 
successful in that litigation in at least causing them to go back 
and redo all the analysis of water supply issues and to come up 
with a whole new water supply planning approach that was more in 
keeping with what we believed to be the reasonable way of 
approaching water supply planning. 

The tip of the iceberg of those arguments always had to do 
with the unmetered supply of the city of Sacramento. One day, 
one of those arguments had to be made in front of the Sacramento 
City Council, and I was the person who had the opportunity to 
make it. I mentioned Mr. Robie before. His wife, Lynn Robie, 
was at that time on the city council. And when I got up that day 
to talk about these issues, I, of course, used the absence of 
meters as the punchline of my presentation. 

And there was quite a little discussion that followed after 
that, mainly berating me, of course. But it was interesting 
because Mrs. Robie would not mention the word "water meter." She 
talked about the "M" word. 



LaBerge: [chuckling] 

Maddow: The Robies know that it s a terrible mistake to not have meters 
in an urban setting. In fact, someone told me they have one on 
their house. When Ron Robie was director of the Department of 
Water Resources, he had one installed. I imagine, nobody reads 
it except maybe him [chuckling], but they understood what we were 
talking about. It is just politics. 



188 

But it is interesting to note that the city of Sacramento is 
a charter city. In most charter cities, Section I of the charter 
says something like "the name of this city shall be the city of 
Sacramento." My recollection is that Section I of the charter of 
the city of Sacramento says, "There will never be meters on 
residential hook-ups in the city of Sacramento." 

LaBerge: You re kidding 1 

Maddow: It s in the city charter. I think it s in Section I. I knew all 
that once. But it s a long-standing issue. 

LaBerge: Why would that be such a big deal? 

Maddow: Well, you have to think about where the city is located and when 
charters were written and all of that. They re located at the 
intersection of two of the state s major rivers and pride 
themselves on being the River City and an abundant supply of 
water and all of that, and it harkens back to early times. 

They are not alone in that. I believe there is a similar 
charter provision, or at least was at one time, at the city of 
Fresno. In Fresno, I believe meters are being installed in 
subdivisions, in new development, at this time. I don t know 
those details . And in areas served by the city of Sacramento but 
which are outside the city limits, I believe they re now 
installing meters. Clearly, meters are the way to go from the 
standpoint of efficient use of water and conservation and all 
that. I m sure that the politicians and others in the city of 
Sacramento know that. It s just that it s kind of like [part of 
the arguments between]-- 



Maddow: --the city and the utility district, because there was a fair 

amount of enmity and emotion at stake. The politicians up there 
were attacking the utility district for what it was doing, and 
the utility district felt that it was doing a careful job of 
being attentive to reasonableness and efficiency and conservation 



189 

and all those things, and didn t want to take these things lying 
down. And so when there were issues that arose with regard to 
land-use planning or resources planning from areas that were 
attacking the utility district, we occasionally pointed those 
things out. In some respects, you get some sort of short-term 
satisfaction out of all that. In some respects, we did help to 
move their planning in what I consider to be a more progressive 
direction. 

In some respects, we just continued the polarization, and so 
I have mixed emotions about whether or not some of the things 
that we did were necessarily going to be in everybody s best 
interest in the long run. I don t think they really hurt. I 
think they did a good job of awakening people. But there was 
some additional polarization as a result of this. Not always the 
best way to resolve these kinds of things . 



Art Littleworth and the Defense Team 



LaBerge: Well, though, it sounds like you have a good relationship and 
admiration for some of your other opponents. I mean, when all 
these needs come up you say, "And he s a great guy, and he s a 
wonderful lawyer . " 

Maddow: Well, I truly believe that. The people who we faced in these 

cases were good people. I mean, they were attorneys representing 
clients. And just because you have to do battle with them 
doesn t mean you can t respect them. You re much better off if 
you do respect them. If you don t respect them, you re much more 
likely to make mistakes. 

We tried throughout this whole thing to maintain a very high 
professional plane. Hiring Art Littleworth was key to that. 
There is no more professional lawyer I ve ever known. There is 
no more of a gentleman in everything that he does. It pervaded 
our whole case. The case was huge. We had water quality issues, 



190 

fisheries issues, recreation issues. All of them enormously 
complicated, with a wide variety of expert testimony and reports 
and gosh only knows what else. 

We actually used a six-attorney team from Art s firm. Each 
of the attorneys was backed by an associate. Art was backed by a 
young man named Eric Garner. We had a partner named Greg 
Wilkinson, who was just named one of California s outstanding 
lawyers last year, who recently got a unanimous supreme court 
decision on an Endangered Species Act case that made front page 
of the popular press. It was the main headline in the San 
Francisco Chronicle one day last week. And Ron Kohut was the 
third partner. Each of them was backed by an associateGreg by 
Janice Weiss, and Ron by Laura (whose last name I have 
unfortunately forgotten at the moment) . They were a wonderful 
team of people. We kind of split the case up into thirds, you 
know, so that nobody had an unmanageable portion. 

We had a big team of people from the utility district: Bob 
Helwick essentially full-time, myself probably one-third time, 
and a flock of engineers and others . And the whole approach of 
that team was on a very high professional plane, by design, and 
it was all kind of just people trying to emulate Art Littleworth. 
Art s participation in the case raised the level of the debate to 
one that was a purer level of intellectual and scientific debate 
than it would have been had we had somebody in there who was more 
prone to get in there and just mix it up in a more typical case. 

That s not to say we didn t fight hard and well. But the 
approach was a very professional approach. That s the way the 
utility district did things under Hal Raines and Jack Reilley, 
and it wasn t going to change under my watch. By hiring Art 
Littleworth I guaranteed that it wouldn t change. I think it 
raised the whole tone of the exercise. 



191 



Report of State Water Resources Control Board. 1987 



Maddow: The state board staff produced this massive report in February of 
1987. They took objections from the parties to the staff report. 
The board then conducted a hearing in the spring of 1987. It was 
about a ten-day hearing, at which the parties put out sort of 
summaries of the case that they had presented to the staff. We 
did it by panels. There was a limited direct and cross- 
examination. The board listened patiently and heard all these 
eminent witnesses. 

And then the last day or two- -I think it was maybe in 
addition to the ten days of hearings. I ve forgotten now. But 
then the board said that it was going to take unsworn policy 
statements from anybody who wanted to come up and speak. There 
were quite a number of people who got up and spoke. Elected 
officials from down here and up there, a variety of people, and 
individuals, environmental organizations, et cetera. I think the 
very last person to speak was Andy Cohen. 

LaBerge: Of your board. 

Maddow: Who was later elected to the East Bay board. This was 1987, and 
Andy ran for the board and was elected in 1990. Andy was opposed 
to the American River project that the utility district was 
pursuing. He was very articulate, very forceful. He really 
caught the state board s attention, and the reason for it is not 
just the forcefulness and the articulateness of his statement. 
He was both forceful and articulate. 



But when he came up to the rostrum, he was wearing an 
industrial strength knee brace. I don t know. I think he had 
had knee surgery or needed it or something. I don t remember the 
details. He was wearing shorts at the time, I remember. And it 
was a terrible effort for him to do this because this brace was 
just this massive appliance, and as he was approaching the 
rostrum, it was kind of like everything just stopped for a second 
because everybody was looking at this man. And then he certainly 



192 

had everybody s attention, and he gave probably the strongest 
statement that was ever made in the entire case before the state 
board of sort of the pure environmental position about the things 
that he saw wrong with East Bay s case. I always thought that 
was a remarkable incident in the whole process. 

The board, however, had pretty much decided that it was 
going to stick with the referee s report that the staff had 
developed as a result of this long exercise. And in June they in 
fact completed the report and issued it. It in effect said East 
Bay s contract was not unreasonable. East Bay can use the water. 
They came up with an alternative to the physical solution that we 
had proposed that actually was a little more favorable to the 
utility district than what we had proposed, but it was based upon 
all this evidence that had come in subsequent to our preparation 
of our Exhibit 33. 

The newspaper articles which I gave you earlier resulted 
from the issuance of the report back then. But, of course, that 
wasn t the end of anything because under Water Code Section 2000 
what the board did was to adopt the report of referee, and send 
it back to the court 1 



Another Trial in Alameda County Superior Court 



Maddow: A few months ensued. The board had to assemble the record 

because it had to send back the whole record to the court. But 
when everything got back down there to the court, it went back to 
Judge Bancroft. And on the first day we went in to see Judge 
Bancroft for a conference with him after his receiving the 
report, he announced that he was retiring. And, interestingly, 
someone asked him, "What are you going to do?" And he said that 
he was going to go to work for one of the firms that hires 
retired judges to be dispute resolvers, and he jokingly, I think, 
said, "I guess you can hire me" or something like that. Well, 
the state can t hire private judges. Can t do that. The state 



193 

is not allowed to do that. And so the two deputy attorneys 
general who were there had to say we simply couldn t do that, so 
it allowed us to gracefully move away from that moment that none 
of us were quite sure about. 

But in any event, we then knew that we were going to have to 
go back and get a new judge. There was quite a swirl of activity 
about that point, trying to figure out where we were going to end 
up. Essentially, we went to see Judge Michael Ballachey. He was 
the presiding judge. And he thought about how he was going to go 
about assigning us to a new judge. I ve forgotten all the 
details of the process, but to make a long story short, after a 
list of six judges was identified by Ballachey, we were soon 
assigned to Judge [Richard] Hodge, who at that time was out in 
the Hayward court. 

We all trooped on out there one day, and he said, "Oh, so 
this is a water case." He said, "Well, I had a water case once. 
I learned a lot about hydrology." And we all kind of perked up. 
What he was talking about was a dispute between an uphill and 
downhill landowner about drainage. Two backyards, you know, kind 
of a thing? We all said, "Judge, this is a little bigger." 

LaBerge : [ chuckling ] 

Maddow: But he had a great spirit and good humor and was real anxious in 
getting into this . Frankly he started off by reading this report 
of referee and engaging in dialogue with the parties and all of 
that. I think from early on he decided that since the courts had 
held, both in EDF /--actually EOF II, I guess, and then 
subsequently we of course had the Audubon decision 1 come down, 
which was the first public trust decision. Since the courts had 
been saying that the state board and judges have concurrent 
jurisdiction, he said, "I can handle this case. Let s try it 
over again." 



Audobon v. Superior Court (1983) 33 Cal. 3d 419. 



194 

So we had to get ready to try the case for the third time. 
The first time we tried it to the state board staff, the second 
time we tried it for the state board in the ten days of hearings, 
now we had to go try it for the judge. That was painful. 
Because we had been there, we had done that, and everybody kind 
.of had to suck it up all over again. 

LaBerge: And did the other side feel the same way? 
Maddow: Oh, they hated the decision of the state board. 
LaBerge: So they were happy. 

Maddow: They filed reams of objections and exceptions to the state 

board s report, and they were anxious to get another shot. We 
tried to point out that it was unnecessary, and the judge said, 
"Ehgh!" He was ready to do it again. I shouldn t say it quite 
that way. He made a very thorough study, and he concluded that 
there were issues that he wanted to look at again. He wasn t 
satisfied with all the state board staff had done. 

And so we started all over again, and we ended up with a 
lengthy trial and trooped in legions of experts for the much more 
formal type of proceeding than we had had at the state board. It 
all took place in the courthouse out at Hayward. We rented an 
apartment in a building down on A Street in Hayward and lodged 
five of the attorneys from the Littleworth firm there, and 
brought in a computer and had this huge table, like half the size 
of this, which was our work space. It was kind of an ideal 
location, but it was kind of like roughing it for those five 
attorneys. I really admired their courage in sticking it out. 
There wasn t room for all six of them, and fortunately Janice 
Weiss s grandmother lived in Hayward, so she stayed with her 
grandmother, and the other five stayed in the apartment. 

A marriage resulted from this. I mean, Ron Kohut and Laura 
--I can t remember Laura s last name. But Ron Kohut and Laura 
were married some time after all of that. Actually, I guess it 
was maybe during that. So maybe that was a fortunate thing. 



195 
Daily Summaries and Expert Witnesses 



Maddow: Judge Hodge had an interesting way of trying this case. Of 

course, there was a court reporter, but every day he asked each 
of the parties to provide him with a summary of what had happened 
the previous day. I can t remember if we actually provided them 
on a daily basis or a weekly basis, but we set up this computer 
system, for those days a very advanced computer system, in the 
apartment, and the role of the associates, one of their roles, 
was to produce these summaries. If the case was dealing with 
fisheries issues, there was one of the associates who was 
focusing on fisheries issues and that associate would produce 
that day s daily summary. We had these sort of daily rushes, you 
know, that we would have to produce. 

We had expert witnesses from the East Coast on water 
quality. Dan Okun, one of the--I guess in French it would be 
eminence grls--one of the grey eminences, one of the real gurus 
of the subject, from the University of North Carolina. We always 
had to worry about that because if we were doing anything with 
Dan during basketball season, we d always have to schedule him 
around [that] . He never wanted to miss a home North Carolina 
basketball game, and he didn t on our watch, anyway. 

And we had a guy named Bob Harris, who was the man who did 
the work for EDF that resulted in all the publicity that 
accompanied the original enactment of the Safe Drinking Water 
Act. It was the analysis that resulted in somebody saying that 
by the time the water that becomes the water supply for the city 
of New Orleans reaches the city s water supply intakes, it has 
already been through the human kidney forty-eight times. That s 
not exactly what Harris s research showed, but they used Harris s 
research for those kinds of outrageous statements. Harris was a 
real leading exponent of drinking water quality. 

We had really good people, including Don Kelley on fish. He 
was Mr. Salmon. He was the best salmon expert that anybody knew 
of, ably supported by a guy named Dave Dettman. We had a lot of 



196 

expert witnesses who were really good. The other side had good 
people, too. We think we pretty well outflanked them and beat 
them on the technical grounds. But Judge Hodge did give them a 
considerable amount of attention and sway when he reached his 
final decision, particularly with regard to recreational values 
in the river. 



Lengthy trial. Weeks and weeks and weeks. Six weeks 
altogether of constant trial, as I recall, four days a week. 

LaBerge: Did you go every day? 

Maddow: I didn t go every day. I couldn t. Bob Helwick did. I could 

not. And that was largely because, you know, this was happening 
at a time when the utility district had a lot of stuff going on. 
And so I had to make the hard choices . I was actually more 
involved in some of the preparation stuff than I was in the 
presentation of the trial. I attended when I could. 

Sacramento County, of course, and the environmental groups 
and the Department of Fish and Game were advocating for the fish, 
so they brought in a stuffed salmon, which the judge hung on the 
wall. Gorgeous fish. And we were advocating for water quality, 
and so we needed something like that, so one of our guys brought 
in a model of a molecule of something called a trihalomethane 
precursor. Trihalomethanes are produced through the combination 
of a water supply that has certain contaminants in it, 
particularly various organics , and chlorination to disinfect the 
water. One of these byproducts is something called a 
trihalomethane, which is carcinogenic. 

And so we kind of focused on carcinogens in the water or at 
least the precursors to the formation of carcinogens in the water 
that we were being told that we should take in lieu of getting 
American River water, and we said, "We don t want any of that! 
And here s why!" And so somebody got up, and it was great, with 
this little sort of tinker toy model of a THM molecule. Well, 
Judge Hodge had that sitting right on his desk! And he used to 
play with it! So through the whole trial we had this sort of 



197 

irony of the fish looking over the whole proceeding, and the 
judge playing with the tinker toy THM. 

And that s what the case came down to. Because the judge 
said those fishery issues have to be protected, and there s a lot 
more that we have to learn about this. Those recreation issues 
have to be protected, and there are probably more things we need 
to know about that, but by golly, drinking water counts, too, and 
so East Bay gets to take water. It s going to have some limits 
on its ability to take water. It can only take water when it s 
going to do so without any harm to the fish and without any harm 
to these recreation values. 



Judge Hodge s Decision and Continuing Jurisdiction 



Maddow: And he came up with a decision that was well over a hundred pages 
long. It included his version of a physical solution as well, 
with numbers that were higher than what the state board s 
physical solution had said, and that were higher than what we had 
proposed way back in our Exhibit 33. And, in fact, we thought 
they were much higher than was warranted by the evidence. But he 
kept continuing jurisdiction over the case, and he appointed a 
special master, a man named John Williams, from Carmel Valley, 
Carmel Highlands, California. 

John was a hydrologist, and his role was to oversee 
continuing scientific work in an effort to in effect refine the 
physical solution. The judge knew that there would be times when 
his physical solution wouldn t let the utility district get as 
much water as it said it needed, and I think one point of the 
physical solution was to provide a safety valve so that we could 
come back to him and say, in times of need, you need to amend the 
physical solution or you need to make an exception. 

I think he also kept continuing jurisdiction because he 
wasn t convinced of the fish data yet. We pretty well had salmon 



198 

and steelhead data covered, I think, and yet he thought that 
there was more that could be done. I think he thought that there 
was more that could be done with other species of fish, shad, for 
example, or maybe with some of the organisms in the lower parts 
of the food chain, et cetera. Those were the kinds of things 
that John Williams cared about and was good at and wanted to have 
more of a say in. So the judge wanted to leave the door open to 
in effect providing other forms or greater protections for the 
fish, as well. 

So he really tried to do a balancing act. Both sides 
claimed victory. Rightly so. The utility district could take 
water, but not at the times it needed it most, and therefore was 
going to have to do something to accommodate that. The county 
could say and the environmental groups could say that they had in 
effect stymied East Bay s efforts to take water out of the lower 
American. And they thought that it was in essence going to block 
East Bay from ever being able to proceed, and East Bay said we 
can proceed. 

And that was to be the beginning, then, of East Bay s next 
round of its water supply management planning, or one of the 
beginnings of the next round. Each side was hard-pressed when it 
came to deciding whether or not to appeal. The judge worked very 
hard to make that decision a hard one to appeal. And nobody 
appealed. He kept continuing jurisdiction. Technically, I guess 
that means the case is still in trial. 



LaBerge: Still. 

Maddow: He still maintains jurisdiction. Now, I don t know what s going 
on with that continuing jurisdiction at this point. I know that 
from the time of the judge s decision in early 1990, I guess that 
was, through the time I left East Bay, every year East Bay put up 
money for the special master, and periodically went down to see 
the judge. And I know that some of those activities continued 
after my departure because I ve talked a little bit to Bob 
Helwick and one of the fellows on the engineering staff who was 



199 

the primary contact with Mr. Williams, 
precisely what the status is today. 



But I don t know 



LaBerge: But you were allowed to take water from Folsom South Canal. 

Maddow: Yes. With restrictions on when. In other words, we were allowed 
to take from the Folsom South Canal as long as certain flow 
levels were being maintained in the main portion of the river. 
We were limited in what we could do with the water. This was a 
drinking water quality case. We couldn t take this water and go 
sell it to somebody else to use for crops . We were supposed to 
use it within the utility district s service area. It wasn t 
supposed to be to help out people down in San Joaquin County, who 
felt they were going to get some water out of the utility 
district s contract. 



In addition to the flow requirements, we could only take 
water out when certain flow requirements were met [reading] : 
"... 2000 cubic feet per second, October 15th through February, 
3000 cubic feet per second in March through June, and 1750 cubic 
feet per second in July through October." 

Plus, in addition to all the water that that meant was set 
aside and not available to us, an additional 60,000 acre-feet 
were supposed to be [reading] "maintained in reserve for release 
upon the recommendation of the Department of Fish and Game in 
response to specific fishery requirements." 1 

Now, what s interesting about all those provisions is that 
the Bureau of Reclamation owns Folsom Dam and Nimbus Dam, and 
they re the ones who control the valves, and their water rights 
were not before the state board, and so there s a serious 
question as to what this decision means with regard to the entity 
which controls the valves ! And that s always been one of the 
crowning ironies in this case. East Bay started off this case by 
saying, "You re suing the wrong party because we don t have any 
water rights. It s the bureau. You re supposed to be suing 



EOF v. EBMUD (1990) Superior Court, Alameda County, No. 425955. 



200 

them." Federal preemption. That s where we started with the 
demurrer that Judge Brunn sustained. And in many respects, we re 
still hung up on that point because the bureau is not a party. 
And the bureau is not bound to do anything with this. 

On the other hand, this does hamstring other parties. 
Sacramento County can t now go and take water out of the canal, 
either, as far as I m concerned. I don t know if they would 
agree with that. But because Sacramento County is so hamstrung, 
as I understand it, the utility district and the Sacramento Water 
Forum, which is a whole bunch of entities up there, including the 
county and the city and other stakeholders, they re now talking 
about a compromise, under which nobody would take any water out 
above the lower American. 

Instead, they all would take water out further downstream, 
below the stretch where all the recreational and fisheries values 
are supposed to be concentrated, and then pipe it right back up 
where it came from. They would run a parallel pipe from sort of 
down towards the mouth of the river, by the 1-5 bridge, back 
upstream to the water treatment plant that Sacramento has up 
there at H Street. 

There is an enormous irony in that. And I think it s a 
reasonable approach. I commend the parties who have reached that 
compromise. But you have to realize how we got to that 
compromise. We got there because of all the political rhetoric 
that erupted as we were trying to deal with physical solutions 
that were being considered at the time we were at that state 
board reference proceeding. That polarized people into thinking 
East Bay has clout, et cetera, and that prevents the city and the 
county of Sacramento from being able to take water out anyplace 
upstream of where East Bay could be permitted to take it out. 



201 



Assessment of the Reference Procedure 



LaBerge: What do you think about the reference procedure? 

Maddow: It was very cumbersome. It had less flexibility than we would 

have liked. The judge sent the board twenty-one questions. The 
parties were allowed to kind of supplement with some additional 
questions. Even though, you know, we had to pay for it and that 
sort of thing, but the state board really didn t have all the 
resources it would have been nice to have had available for this 
type of proceeding. 

On the other hand, it did allow the court to take advantage 
of the special knowledge and expertise of the state board. My 
biggest complaint is that when the state board finished its work, 
the court was able to ignore it. 

LaBerge: Yes. 

Maddow: And so my concern goes back to those provisions of EDF II and the 
Audubon decision, which say that there is concurrent 
jurisdiction. I think from the standpoint of California law, it 
would be better in the long run if there was more deference given 
to the actions of the state board, and in fact it would just be 
in the nature of mandamus review as opposed to trial de novo, 
when the matter comes back to the state board. 



On the very first day of the trial before Judge Hodge, the 
very first subject that was discussed was concurrent 
jurisdiction. There was this delightful colloquy between Judge 
Hodge and Art Littleworth about the fact that when Justice 
[Allen] Broussard wrote the opinion of the supreme court in the 
Audubon case, the public trust case, he in essence said that the 
question of whether or not the courts and the state board have 
concurrent jurisdiction is a close call. If Justice Broussard 
had ruled the other way, we might have had a different result. 
We would not have had a six -week trial and all of that. 



202 

Last time I saw Justice Broussard, before he passed away, I 
bumped into him in Costco, and he vaguely recognized me because I 
had actually been before him when he was on the superior court 
bench. I told him who I was, and I told him about that colloquy 
between Littleworth and Hodge, and he kind of sparkled. He 
remembered that part of the decision. We really didn t talk much 
about it [smiling], but I remember he kind of lit up about that. 

That s my principle criticism of the way the Section 2000 
reference proceeding worked. It was inefficient. But while it 
was actually going on, it was cumbersome, and the state board 
knew that, too. It wasn t a real convenient way, real flexible 
way to do it. If the reference order had been written by a judge 
who was a little more engaged than Judge Bancroft was at that 
time, and that s not a criticism; it s just that he was not as 
engaged as he might have been had he not had the trial calendar 
he did when we were there before him. He had a terrible 
calendar, and so he was trying to fit us in. He didn t dig into 
our case as much as he might otherwise have done. Had he done 
so, we might have been able to get a more flexible and more 
workable, a more efficient reference order, but we didn t have 
one, and so we started off with a kind of inflexible and 
cumbersome mechanism, and it didn t get a lot better. 

In terms of what the state board did to carry out its 
responsibilities, I give a lot of credit to that staff. I think 
they did a pretty good job. I think their lawyer, in particular, 
did a very good job. State Water Resources Control Board needs 
to be a better-funded and better-staffed organization than it is 
as California state government now works. In particular, it 
would need that if we get away from the concurrent jurisdiction 
stance that the current law had has us in. 



203 



Principle of Concurrent Jurisdiction 



[Interview 5: May 23, 1997] 



LaBerge: Well, the last time we were talking about the American River 

controversy. We sort of had wrapped it up except for a couple of 
comments about the State Water Resources Control Board. 



Maddow: I wanted to talk for just a minute about the principle of 

concurrent jurisdiction. One of the things that the district 
endured, I think somewhat painfully, in the American River 
litigation was the fact that the case had to be tried a couple of 
times. As we discussed before, there was a reference to the 
state board by the superior court, and the state board spent a 
very long time and a great deal of money, half of which was 
district money, coming up with a very extensive report. 

The report was then sent back to the court, and as I think 
I ve told you before, when the court received it, we went through 
a change of judges. It ended up with Judge Hodge. And when the 
report came back to him, in effect the judge decided that he was 
going to hear the case all over again. 

That led to an interesting colloquy on the very first day of 
the trial. Right at the beginning of the trial, the judge had 
received extensive papers about what his role was and what 
opportunities he had and that sort of thing, and there was quite 
a bit of discussion of the principle of concurrent jurisdiction. 
You see, when the state board had received the case from the 
superior court, it was because the court followed a provision of 
the Water Code which indicates that the state board can serve as 
a referee in regard to disputes over claims to water, and the 
board is supposed to be able to do so because of its particular 
expertise and knowledge. 

Then, when its report came back to the court, the court had 
the ability to simply disregard it because the state doctrine of 
law is called concurrent jurisdiction. In other words, the court 



204 

and the board have equal opportunity to have a full-blown trial 
on the facts. If the doctrine of concurrent jurisdiction was not 
in effect, what would happen is the state board would make its 
decision, and then the matter would come back to the court, and 
the court would review the state board s decision under the 
standards of some form of administrative review. The court would 
review to see if the state board s decision was supported by 
substantial evidence in light of the whole record or some 
standard like that, but it would not have a trial de novo. 

Well, in this case, it was pretty clear that trial de novo 
was the standard. On the first day of the trial, the judge, with 
almost his first comments, addressed that question. Art 
Littleworth, who was the district s counsel, quickly rose to his 
feet, and there was a fascinating colloquy between Art and the 
judge about the decision of the supreme court in 1983, the so- 
called Mono Lake decision, National Audubon Society. 

In that case, Justice Broussard, who, of course, came out of 
Alameda County, had written the decision, and he had indicated in 
his decision that whether or not to give deference to the state 
board was--I think this is a quotehe said, "It was a close 
call." And he ruled in what for him was obviously a difficult 
decision that, in fact, concurrent jurisdiction would still apply 
in issues involving arguments about the public trust and matters 
like that. 

Had he resolved that close call another way, we would not 
have had to try the case again before Judge Hodge after having 
tried it before the state board. And so I ve often thought that 
that s an area of state law that some time in the future will 
probably be looked at again, when the courts or the legislature 
are attempting to determine how we can more efficiently get 
through disputes regarding competing and conflicting claims to 
use of water or how the public trust and public interest 
arguments are to be integrated with more traditional water rights 
doctrines. 



205 

From my perspective, it would be better to boost the 
authority and responsibility of the state board because they do, 
in fact, have a staff and considerable reservoir of expertise. 
Bad choice of words! A considerable amount of expertise. And, 
very frankly, the trial courts in this state are virtually 
overwhelmed even when they are at their best, and water cases 
take a long time. They re very hard. I think it would be better 
to leave more of that responsibility with the state board, and to 
fund the state board adequately so it could do the job. 

But after years of state budget cutting, I believe the 
state board is understaffed and underfunded to be able to do this 
very well. I just think we might get better law, however, better 
decisions, better physical solutions, if the state board were 
better staffed and funded, better recognized as having that 
arbiter s role, and if their decisions were treated like 
administrative decisions that could only be overturned if there s 
an absence of substantial evidence or something like that. 

I think trial de novo is an inefficient way to deal with 
these matters. And the best discussion of this problem that I ve 
heard, I think, was that colloquy that s on the record from the 
first day of the trial, when Art Littleworth and Judge Hodge had 
their little discussion. So. Somebody someday will pick up on 
that and write a law review article or maybe draft a bill around 
it or something like that, but we ll just have to see how that 
plays out. 

LaBerge: Was that Art Littleworth s opinion, too? 

Maddow: Yes, I think it was. I believe at the time we all thought that 
the investment of some four years of effort and I ve forgotten 
the amount of money, but it was in excess of a half a million 
dollars [$500,000] in district money, as I recall, at the state 
board was a considerable effort. Although none of us thought the 
state board s report of referee was perfect, we all thoughtand 
I believe it s fair to say even some of the plaintiffs attorneys 
thoughtthat the state board had done a reasonably thorough job 



206 

of at least outlining all the issues. There were some arguments 
about how they resolved some of the issues. 

Everyone was a little unhappy about the decision, which 
probably means it was pretty good. But whatever it was, it s 
just kind of a footnote now because it just sits on people s 
desks or on people s bookshelves. But there was a lot of good 
work that went into it, in particular a lot of good fisheries 
work. You almost feel like it was wasted when you have to go 
back and do it again in that other kind of pressure cooker that 
you re in when you re in a superior court. 

LaBerge: Well, I don t know if this is off the subject but, for instance, 
the National Labor Relations Board? Are their decisions taken 
differently than that of the State Water Resources? 

Maddow: Yes. The general rule with administrative agencies is, in both 
state law and federal law, that if they have conducted their 
hearings and their proceedings in accordance with the statutes 
that they are supposed to follow, that they may only be 
overturned in the absence of substantial evidence or something 
like that, or if there was an arbitrary and capricious decision. 
The courts would review a decision like that almost in the way in 
which an appellate court would review a decision of a trial 
court . 

The concurrent jurisdiction doctrine in California water 
law is sort of an aberration from what I would consider to be the 
norm in administrative law. The California system is not the 
only system that s around. In some other states, rather than 
have a water resources control board do it as an administrative 
matter, [they] have a whole separate system of law courts to deal 
with water matters. For example, in the state of Colorado. And 
that s an alternative. That s not the way it has been done in 
California. I don t know if anybody has ever really seriously 
looked at that. Perhaps the Governor s Commission on California 
Water Law did--I can t recall now. That was an effort chaired by 
former Chief Justice Donald Wright, and its report and several 
studies are available in libraries. The state board is a pretty 



big organization, 
issues. 



207 



It s a pretty big state. Lots of complex 



I think the better way would be to give the state board some 
independence, sort of separate them from other parts of state 
government in the manner in which, for example, the Fair 
Political Practices Commission is separated from other parts of 
state government. Allow them to make decisions that are binding 
and not subject to concurrent jurisdiction. 

Many of their decisions are of that nature, but it s just in 
these areas where there are certain types of disputes and these 
reference proceedings and things like that where you have this 
aberrational doctrine of concurrent jurisdiction that I think is 
troublesome. And, of course, we have it in the area of the 
doctrine of public trust. Public trust cases, I think, as the 
law has evolved, are looking more and more like water rights 
cases all the time. I would prefer to see the public trust 
doctrine expressly treated on a par with or as a part of the 
water rights process. Put it all before a body with authority 
and responsibility to resolve these disputes, and a body for 
which the decisions would receive more deference than they do 
now. 



Public Trust Doctrine 



LaBerge: You have referred to the public trust doctrine. Can you talk a 
little bit about it? What it is. 



Maddow: I m sure not an expert, and I probably should have done a little 
more homework if I had been thinking about that, but essentially 
the public trust doctrine is a doctrine that was determined by 
the supreme court in the Audubon case in 1983, to exist in 
parallel with the water rights doctrine. It says that there is 
in essence, as a part of the existence of the state, there is 
within the interests of the public this broad public trust 



208 

responsibility that deals with issues other than the proprietary 
interests in water. In other words, interests related to 
fisheries, wildlife, other interests which may not necessarily be 
the subject of a water right, are in fact entitled to protection 
by the courts. They can be the basis of a lawsuit attacking the 
use or method of use or point of diversion of a water supply. 

In water rights law, there has always been a public interest 
element that has to be dealt with, in addition to the classic 
things about, you know, flow, et cetera, that you deal with In 
determining a water right. But the public interest component was 
never viewed as broadly by the state board or the courts as some 
people thought it should be. So in effect the parties in the 
Mono Lake case, the Audubon Society in particular, some of the 
other groups, brought in some very old principles I guess it 
really goes all the way back to Roman law, this principle of this 
broader public trust that exists independent of the statutory law 
systems and which can, in fact, be a basis for a determination 
whether a particular use of water is appropriate or in 
appropriate. 

If we do have another interview, let me do a little 
homework it s been years since I ve looked back at some of those 
fundamentals, and I just want to refresh my memory a little bit 
because I know some of the terminology I m using is slightly off. 
But the key thing to realize about the public trust doctrine was 
until 1983 we didn t know we had it in water law. And starting 
in 1983 we suddenly discovered that any time you were dealing 
with conflict or competition among competing uses for water, in 
addition to dealing with the traditional elements of a water 
rights dispute, you would have to think about this other 
doctrine, this other set of legal principles, called the public 
trust. 

It still isn t really easy to know where the public trust 
starts and stops, and water rights doctrine starts and stops, and 
how they are integrated. There are a number of law review 
articles and matters like that that you can find. You can find 
it discussed in a few cases, not very many yet. The legislature 



209 

has never really dabbled in the field. And so it still is 
fraught with some uncertainty. The state board attempts to deal 
with the public trust in its decisions, but very few court 
decisions have discussed it. 



Art Littleworth and one of the other attorneys who worked on 
the American River litigation for East Bay, a man named Eric 
Garner, have written a book called California Water. It s 
published by the Solano Press. It s a paperbound book. It came 
out I think in 1995. l 

LaBerge: I ve looked at part of it. [Pulling out a copy] 

Maddow: Yes, that s it. And they have a discussion in there of the 
public trust that is a pretty good primer. 



Water Quality Issue 



LaBerge: I don t think we talked about this. The issue of water quality 
and how that affected the outcome of the case. Had that been 
used before? 

Maddow: Oh, yes. But it perhaps got taken to a little higher plane in 
the American River litigation than it had been. Fundamentally, 
the decision that the superior court made in the American River 
litigation says that there are very important issues related to 
recreation and fishery uses of the lower American River that have 
to be taken into account in determining whether East Bay MUD can 
implement its contract with the federal government for a water 
supply. 



And weighed against those interests are the drinking water 
quality interests of the people of the East Bay. The utility 



l Arthur L. Littleworth and Eric L. Garner, California Water (Point 
Arena, CA: Solano Press Books, 1995). 



210 

district had, for a very long time, well, for its entire 
existence, had been particularly focused on source protection, and 
source selection as the best guarantors of high-quality drinking 
water for its customers. And so when the utility district 
contracted with the federal government for a water supply, it did 
so with water quality being the principal determinant of where 
the water would be taken and how the contract would work. And, 
of course, water quality has been the driving factor in the 
siting and the design, construction, and operation of the utility 
district s Mokelumne system forever. 

In the American River litigation, both before the state 
board and before the court, the principal dynamic was the 
interplay between the fisheries interests and the water quality 
interests. And the question that the judge and the state board 
really had to deal with was: Is there a way in which to maximize 
the high quality water availability for drinking water purposes 
while, at the same time, maximizing the availability of water for 
fisheries and recreation and other non-consumptive beneficial 
uses? 



That s a hard dynamic. It s similar to the dynamic that you 
can read about in the newspapers here now with regard to one of 
my current clients, Contra Costa Water District, where there is a 
reservoir which is owned by the federal government, operated by 
the water district, which has a recreational presence that is 
operated by a park district. 

LaBerge: Which is it? 

Maddow: It s called Contra Loma Reservoir, out in Antioch. And for 

virtually the whole existence of the reservoir under the lease 
that the federal government entered into with the park district, 
there has been swimming in the reservoir. But the reservoir was 
always a backup reservoir. Drinking water use was not its 
primary purpose. That has changed over the years, as the 
population growth and the evolution of water use in the water 
district has taken place. And now the reservoir is used much 
more frequently for drinking water purposes. 



211 

It has kind of crossed the line in the minds of the 
Department of Health Services, which is the regulatory agency, 
and they are saying, "Oh, if you re using this reservoir as much 
as you say for water supply purposes , then there can be no 
swimming in that reservoir," because bodily contact is prohibited 
in a drinking water reservoir. There is state law, and there are 
state regulations on the subject. 

Well, this is just starting to happen, and there are debates 
in public forums and in the newspapers about whether that 
recreational usethis is the backyard swimming hole for hundreds 
or thousands of people- -whether that recreational use should hold 
sway over the drinking water quality and public health uses. And 
then the arguments start about, well, how many people have gotten 
sick, or how good is your data, or what do the studies really 
show, and these kinds of things. Those are hard debates, and 
they don t have easy, well-defined answers, wherever they are. 
Water utilities, from a policy perspective, err to the side of 
public health protection. 

Well, that debate I talked about is kind of what we went 
through in the American River litigation. The utility district 
said, "We ve got a need for high-quality water." The judge 
agreed. The judge based his decision on the fact that the 
utility district was contracting for a drinking water supply, and 
he said that was okay, and that the utility district could get 
that water for drinking water purposes, as long as enough water 
remained in the river to protect the recreation uses. And "Oh, 
by the way," he said, "this is drinking water." 

So the utility district can t give some of it or sell some 
of it to people in San Joaquin County who have been wanting some 
of that same water for farming. This is drinking water. And if 
it isn t needed for drinking water, East Bay doesn t need to take 
it out of this place way upstream in the American River, where it 
has a higher quality. If they just need it for farming, they can 
take it out of the Delta. Or they can take it at another 
diversion point. That was sort of the theory of it. 



212 

So that dynamic between water quality and fisheries issues 
and recreation issues was a constant, and it was right at the 
heart of the case at all times. The utility district brought in 
some of the nation s leading water quality experts. Dr. Danel 
Okun, from the University of North Carolina, who is sort of the 
French would call him the eminence grls of water quality. A man 
named Dr. Bob Harris, who had been with the Environmental Defense 
Fund years ago and whose work regarding drinking water quality 
was very largely credited with the passage of the first version 
of the national Safe Drinking Water Act. And another man whose 
name has just flown from my head, who was the guy who came in and 
talked about a water quality parameter that had just been 
identified and hadn t been named yet, and we called it MX. [I 
think his name was Dr. Karim Ahmed.] 

But we had very good water quality people and a tremendous 
amount of data. And the issue at that time ended up coming down 
to something, largely came down to something called 
trihalomethane formation potential, THMFP. That s what happens 
when you apply chlorine as a disinfectant to a water supply which 
contains organic materials. Depending upon what organic 
materials are in the water supply, the byproduct of disinfecting 
with chlorine or with some other disinfectants can be some form 
of a THM, a trihalomethane. And depending upon what you start 
with and which form of THM you end up with, you re going to get 
one form or another of a carcinogen, of a cancer-causing agent, 
or perhaps of a mutagenic agent. Carcinogenicity and 
mutagenicity. (I thought I forgot those words. Don t ask me to 
spell them. ) 

There s been a lot of science on this, and there is a lot of 
regulatory activity. We were trying these cases at a time when 
some of those regulations were still evolving, but fundamentally, 
the issues that we were dealing with were whether or not the 
utility district would continue to be able to obtain a water 
supply which was relatively low in trihalomethane formation 
potential and similarly low in salinity, turbidity, and some of 
the other things that can bring with them other forms of 
contaminants . 



213 

Delta water is higher in organics, salinity, turbidity, and 
all the other things, and so the fundamental for East Bay has 
always been, stay away from the Delta if you re looking for 
drinking water quality. I think I told you in an early interview 
about Governor [George] Pardee and when East Bay MUD was formed. 
He campaigned against an entity, a privately -owned utility that 
wanted to stay in business by keeping the utility district from 
being formed. They said, "We ve got a good enough water supply 
from the Delta. We can perfect that, and you don t need this 
expensive Mokelumne supply." And Governor Pardee s statement to 
the newspapers was , "The Delta is where salt and sewerage meet . " 
I think it was 1923. 



And that s still a fundamental today. East Bay MUD s 
proposal now, with Sacramento County, to implement the American 
River Project by this new means that they have been negotiating 
between themselves, after having litigated for twenty years, it 
will take the water around the Delta so that East Bay can still 
say it s getting its water from as close as possible to the 
"snowflake." That s kind of what East Bay MUD s mantra has been 
for a very long time. 1 

That was a very long-winded answer to a good question. 



Attorney General and the State Lands Commission 



LaBerge: Going back to the American River, did the attorney general have 
any role in any of that litigation? 

Maddow: Yes. Early on in the case, starting back in the seventies, the 
Department of Fish and Game sought to intervene in the case, and 
when it did so, it was frustrating to the utility district in a 



of 2001, EBMUD is planning to divert water from Freeport, on the 
Sacramento River, rather than from any diversion point on the American 
River or Folsom South Canal. 



214 

number of respects. But the California attorney general did come 
into the case on behalf of the Department of Fish and Game, which 
opposed the efforts of the utility district to implement its 
water supply contract. 

LaBerge: Who was it at that time? 

Maddow: Who was the attorney general at the time? Well, I have to think 
back. At one point, early on, when this was first going on, as I 
recall, it was Evelle Younger. And, as I recall there was a time 
when Jack Reilley was trying to meet him in Los Angeles, I think 
it was, and Jack s plane couldn t fly because of fog or 
something, and I remember he was inordinately frustrated by that. 
I think he ultimately did meet with he attorney general, and I 
know he was very frustrated by his inability to persuade them 
that they didn t belong in that case. 

But they did come in, and were represented during much of 
the trial by a woman named Mary Hackenbracht . She was quite a 
good attorney. Another woman, deputy attorney general, named 
Sarah Russell, who lives up here in the Berkeley hills, and who 
later lost her home in the fire--she was also in the case for a 
while, as I recall. 



Late in the process, another state agency, the State Lands 
Commission, also intervened and was represented by a third deputy 
attorney general named Matt Rodriguez, who is also a very good 
attorney. The State Lands Commission has jurisdiction over the 
bed and banks of streams, and they intervened in effect to deal 
with issues related to water levels and matters of that nature 
that primarily related to recreation in the lower American. 

I always thought, without knowing, that one of the reasons 
why the State Lands Commission intervened is that its executive 
directors, first a woman named Claire Dedrick, who had been 
secretary for resources under Jerry Brown, and then Charlie 
Warren, who had been an assemblyman and was author of Energy 
Commission legislation and that sort of thing. He later was the 
Lands Commission executive officer. I frankly think that they 



215 

wanted to get into the case because there were issues that were 
of concern from an environmental standpoint that weren t 
necessarily related solely to bed and banks of streams but were 
close enough, and so they took a very active interest in the case 
there in the eighties. And Matt Rodriguez was a very capable 
attorney for the state in that matter. 

With all due respect to the attorneys general, the deputies 
who were in the case, I would have to say that their role, while 
important, was not as significant as was the role of the other 
attorneys, in particular for Sacramento County and for the 
Environmental Defense Fund. Sacramento County was represented up 
through the end of 1983 by the county counsel, Mr. Lee Elam. And 
then, when the settlement of the case blew up, they turned to a 
law firm called McDonough Holland & Allen. 

Martin McDonough had been one of the state s leading water 
lawyers. I think by that time Martin had retired or perhaps 
passed away. But in any event, when we first started the 
activities in the trial court, a man from that firm named Dennis 
DeCuir, represented them, and then Stuart Somach came into the 
case as soon as he could after having left the interior 
department solicitor s office. And Stuart was the lead lawyer on 
the case, ably backed up by a young man named Paul Simmons, who 
is an absolutely first-rate lawyer. They are now with a firm 
called DeCuir & Somach 1 , which is a very active water law firm. 

Tom Graff was the principal litigator for the EOF in the 
early years. But actually, as it came down to the trial, John 
Krautkraemer played a much more significant role. And John and 
Tom each did play a role at the time of the trial. John did most 
of the work. Tom was a significant force, of course. Tom is 
just a terrific guy. and terrific lawyer. And John Krautkraemer I 
can say the same things about. John was killed in a tragic 
skiing accident here about three years ago. Otherwise, he would 
be one of those people who would be known on, I think, a national 
scale as an outstanding environmental lawyer, like Tom. 



is now called Somach, Simmons, and Dunn. 



216 

The attorney general s office was effective and omnipresent 
and wrote some good briefs and that sort of thing, but the lead 
role was really Sacramento County and John Krautkraemer in the 
litigation. 



EBMUD Board Support 



LaBerge: On the American River issue, what kind of board support did you 
have? 

Maddow: Outstanding board support. And let me explain that briefly. I 
know time is short. As I mentioned to you, I became general 
counsel right at the beginning of January of 1984, and it was on 
my second or third day in the chair, so to speak, that we learned 
that the proposed settlement Jack Reilley and Bob Helwick had 
worked out had blown up. So as quickly as I could, 1 arranged 
for a closed session with the board of directors, in conjunction 
with a board meeting. 

You have to remember that at that time the board consisted 
of sort of a six-person majority and one outspoken person who was 
frequently in the singular minority, and that was Helen Burke. I 
was very concerned about how we were going to maintain the fight 
that I could see was coming in that litigation, and do so without 
splitting the utility district down the middle in some way. 



Keeping Options Open 



Maddow: So the approach that I took, and I m going to say this very 
carefully because I m not going to reveal anything that was 
something that happened in a closed session. But I ve said this 
much publicly in board meetings, and so I don t mind saying it 
here. The approach that I took was always to say that the role 



217 

that the lawyers were seeking to play in defending in that case 
was to keep the utility district s options open to the greatest 
degree possible. Options in terms of use of the American River 
contract for its supplemental water supply in some way. 

We had unanimous support of the board in taking that 
approach. We had that unanimous support throughout the time that 
I was general counsel. I suspect that Bob Helwick still has it. 
The board s interests in the American River contract have taken 
on lots of different shapes and forms in the period of time since 
1984, but the lawyers role has been to keep the maximum number 
of options open. And there has been unanimous and consistent 
board support of that, to the best of my knowledge. 

That doesn t mean there was always board unanimity in terms 
of whether to implement the contract or how to implement it. But 
keeping the options open was important to the board, and I think 
that we were quite successful in doing that. Not entirely 
successful. Quite successful. 



Financial Support 



Maddow: The other thing that is bound up in your question is financial 
support for that effort, and the board made the American River 
contract defense a high priority from a budgetary standpoint. 
That s not to say that we could do whatever we want, run amok, 
and all of that. We had to manage that effort, and did so. But 
we were told that in the long view, which is how you have to look 
at issues like this, that this was the most important thing the 
district had going on with regard to its future water supply. 
And so that long view was consistently taken by all of the 
directors for whom I worked during my tenure as general counsel. 

And I think that s real important, because I ve seen other 
agencies that have not had that. So I took a kind of a quiet 
pride in that because I worked very hard to make sure that the 



218 

board was understanding, at least as I saw it, in that long view. 
The case was not an inexpensive one to maintain. The law firm 
that represented the utility district was in Riverside, and so 

LaBerge: This is Art Littleworth? 

Maddow: Art Littleworth s firm, Best, Best & Krieger. During the height 
of the trial, which went on over a two-month period, generally 
four days a week for two months, and then some, we actually had 
six lawyers from Riverside who were housed here. We rented a 
large apartment down on A Street in Hayward, where five of them 
lived, and then the sixth one lived with her grandmother, who 
fortunately lived not too far away. The case was tried in the 
superior court out in Hayward- -not in Oakland. 

One of the reasons why we had to have so many attorneys was 
that the judge insisted that each of the parties, both sides, if 
you will, each week would produce for him a summary of what they 
thought had happened in the trial that week, on a day-by-day 
basis. So we set up a computer center in that apartment. We 
divided our case into really three different parts, with Art 
taking the lead role in most of the legal issues, and then we had 
a fisheries team, and then we had a water quality team. 

On each of those three teams, we had a partner and an 
associate, and the associate s responsibility, among other 
things, was to produce those summaries--almost transcriptson a 
weekly basis. It s the only trial I ve ever seen handled that 
way. It was a hard thing to do and added to the expense, but 
that s what the judge wanted, and so we had to do it. 

We also had extensive teams of experts , water quality 
experts, whom I ve mentioned; fisheries experts, quite a number 
of them. Chuck Hanson and Don Kelley and Dave Vogel and on and 
on. And we had recreation experts, a lot of very capable people. 
Many of those reports written in that litigation, either in the 
state board or in the court, are still, I m sure, being used as 
valuable references by East Bay people, and by others, because it 
was first-class work. 



219 

I don t mean to belittle the work on the other side. They 
had good people doing good work also. I just think that the 
utility district had the stronger cast of experts and did a 
better job on paper with its experts. And I think that s one 
reason why we did as well as we did. 



220 



IV VARIOUS ISSUES AT EBMUD 



Disinfection Process. 1997 



LaBerge: Didn t EBMUD just recently change how they re treating the water? 



Maddow: Yes. 



LaBerge: It s new to eliminate the problem of THMFP? 

Maddow: To try and cope with the whole problem. East Bay MUD has changed 
its method of disinfection in some, eventually allmaybe it s 
all by nowof its water treatment plants. They re doing a 
couple of things. For safety purposes, they moved away from 
liquid chlorine and changed to some oxide of chlorine. This 
oxide has the same disinfectant capabilities as does chlorine, 
but it s more like using household bleach than it is like liquid 
chlorine, and East Bay MUD has its filter plants in 
neighborhoods, and so chemical-handling safety was an issue. 

But the other thing East Bay MUD is doing is to change from 
using chlorine as its primary disinfectant, and to switch to 
chloramines. This is a different chemical altogether. With 
chloramines in particular, when they are used in combination with 
ozone as disinfectant, you have better ability to disinfect and 
not produce unwanted disinfection byproducts than if you use 
chlorine. And so the trend in the nation has been to move away 
from liquid chlorine for safety, and to switch to chloramine as a 



221 

disinfectant, and the utility district is consistent with those 
trends . 

The utility district had some other problems related to a 
variety of aqueduct and distribution system difficulties that 
caused it also to want to switch to other means of disinfection, 
so I know there has been a very significant investment in new 
treatment plant technology and modernization. And it is largely 
to do away with disinfection byproducts such as trihalomethan.es . 
Frankly, I have been real surprised to see water quality reports 
in the last few years which show East Bay is producing system- 
wide THM averages of around eighty, compared to the national 
standard of 100. I have not seen the data on a plant-by-plant 
basis, but I expect these numbers will drop with East Bay s new 
projects. 

Chloramination alone doesn t entirely eliminate the water 
quality problems. After all, a significant part of the 
district s water supply comes in from high in the Sierra, gets 
piped in, but then is at least temporarily stored in San Pablo 
Reservoir or Upper San Leandro Reservoir or Briones Reservoir, 
and that will always add some organics. Therefore the quality of 
water coming out of those reservoirs is not quite as high as the 
quality of water that comes straight off the aqueduct and goes 
through a treatment plant and then into the distribution system. 

That s why you find the best water quality --within the 
utility district, all water is of high quality. The highest 
quality water is pretty much in the central part of the district 
or in some parts of the eastern portion of the district, where 
the water that goes through the treatment plant comes right off 
the aqueduct. After Pardee, it s never been sitting in a lake. 



222 



Recreation and Watershed Protection 



LaBerge: Yes. Well, you know, this brings us to another issue we haven t 
really discussed, and that s just the whole issue of recreation 
in the district. 



Maddow: Jack Reilley probably talked about this in his book. 
LaBerge: He did a little bit. 

Maddow: He lived through a big part of that. As a part of its water 

quality ethic, the utility district was always very interested in 
watershed protection. When there began to be pressures to open 
up the reservoirs and their watersheds for public access for 
various recreation purposes, frankly at the beginning the utility 
district was not keen on that idea. It ended up with a variety 
of state legislation and other happenings that resulted in the 
district opening up some of its watersheds for public recreation 
purposes. 

It is all done in a very controlled way. There are many 
forms of recreation that are not permitted. Body contact is not 
permitted in any district reservoir except Camanche, which is not 
a drinking water reservoir. There are strict limits on the 
activities that can go on around the perimeter of the watersheds. 
There once was a district operations manager named Gordon 
Laverty. Gordon always used to talk about trying to protect the 
cordon sanitare. I used to tease him about that sometimes 
because I thought he was abusing a term that I think may have 
been created back in the days of influenza outbreaks of a pretty 
pandemic nature. 

In any event, the principle of watershed protection and the 
dynamic with recreation was a strong force that East Bay had to 
deal with for quite some time. Now the utility district manages 
recreation very carefully. There is fishing and boating access 
to Pardee, which is drinking water. There has been a concession- 



223 

type operation up there that the utility district has operated 
for decades, or has had operated by concession contractors. 

In the local watersheds, the biggest operation is at San. 
Pablo Reservoir, which is in such a key location there, nestled 
right behind Berkeley and San Pablo and those areas. That s a 
very carefully planned and managed recreation activity. It 
produces a tremendous fishery because it s planted and I believe 
there are natural fish-spawning activities there, too. But 
primarily with planted fish. I read that it produces the 
greatest success rate of fish caught per angler hour of any 
reservoir in the Bay Area, and that s important to people who 
fish. San Pablo is also a concession- type recreation operation. 



Maddow: The utility district has two other local reservoirs where 

recreation is allowed. One is at Lafayette, where there is a 
district operation. At least by the time I left, it was still 
operated by district personnel, as opposed to by concessionaires. 



Lake Chabot 



Maddow: Then the third variation is at Lake Chabot down in the Castro 
Valley-San Leandro area, where the property was leased to the 
East Bay Regional Park District, which operates or has 
concessions for recreation activity there. Recreation out at the 
Lake Chabot area has been an interesting exercise. Actually, the 
Lake Chabot property was sold. A significant portion of it was 
originally owned by the army, which had a Nike base there, a Nike 
ground-to-air missile base back in the cold war, in the fifties. 

The army property of some 235 acres, which the utility 
district recovered, eventually was sold to a community college 
district, which was going to build a college there, with all 
kinds of protections for water quality being built into the 



224 

property agreement. That property was then leased to the park 
district by the community college district, and in that lease, as 
well as a lease of some utility district property to the park 
district, there are all kinds of protections for drinking water 
quality. 

I found that very interesting because I live right by Lake 
Chabot, and I know that it has not been used for drinking water 
since 1977. It s not connected to a filter plant. So it is 
basically an emergency supply of water, but it is still 
considered drinking water, so the very intense recreation 
activities out there do not include any body contact sports. 

The other thing about recreation in the Lake Chabot area 
that is interesting is that Lake Chabot is a very old reservoir. 
It was built in the 1870s by Anthony Chabot as part of the 
original water supply development for the East Bay area. It s on 
San Leandro Creek. Upstream of San Leandro Creek, the utility 
district has built Upper San Leandro Reservoir. In between the 
two, along the course of the creek, there s a golf course called 
Willow Park, which is leased to the golf course operator by the 
park district. It s kind of a sublease under the lease from the 
utility district. 

When the utility district has to release water from the 
upstream reservoir because of flood concerns, either due to local 
runoff or the water being brought in from Pardee, it doesn t take 
very much flow from Upper San Leandro before it has a significant 
impact on the golf course; it is a long, narrow golf course that 
snakes along the creek, and there s this ditch down through it. 
When the flow of water gets to about 120 cubic feet per second or 
greater, there can be problems at the golf course. 

That spawned a great deal of litigation over the years by 
the golf course operator, who had signed lease documents which 
made him subject to that flooding operation. He had to take it, 
unfortunately for him, but that s the way his enterprise was 
created, and he knew it. That s the document he signed, and the 



225 

courts eventually validated all that. Extensive litigation, 
primarily handled by Bob Helwick. 

So that recreation activity is one that s plopped right down 
there between those utility district reservoirs and has to 
function in a manner that is consistent with the operation of the 
reservoirs. When the reservoirs are operated in a way that is 
inconsistent with recreation, the golf course gets flooded. That 
sounds pretty tough, but I m afraid that s the way that it works. 
If the golf course operator does what it is supposed to do to 
keep the ditch channel clean, the damage can be controlled, but 
probably not eliminated. 

Recreation is an important part of the utility district s 
mission, but it is always secondary to drinking water supply. 
Drinking water supply has to come first. Recreation in an area 
that is as densely populated as the utility district service 
areait s really difficult to not have a recreational presence 
when you have these magnificent watershed lands and these 
gorgeous lakes. The key is to be able to manage it. 

I think to the utility district s credit, it has had very 
capable people managing those watershed activities, certainly for 
as long as I know, and there is a strong commitment to management 
in a way which will protect the water supply and yet provide the 
maximum public access and recreational opportunity that is 
consistent with that watershed water supply protection. I think 
they do a heck of a job. 



Other Watersheds and Mountain Biking 



Maddow: I think it will be interesting to watch over the next couple of 
years as the San Francisco watersheds in particular, on the 
Peninsula, are coming under enormous political and public 
pressure to open up in the same way that East Bay has opened up, 
They don t want to do it, I don t think. 



226 



LaBerge: No. 



Maddow: From everything I ve read. But they re eventually probably going 
to find themselves having to do so, and I think that they will 
probably try to model what East Bay has done with its program. 

East Bay has not had one element of watershed recreation 
that some other agencies have had that could be very troublesome, 
and that s the constant battle with people who want to build 
mountain bike trails. Mountain bikes and motorcycles can produce 
erosion that s a terrible problem in drinking water reservoirs. 

LaBerge: Like Mount Tarn [Tamalpais] ? 

Maddow: Yes. Mount Tarn. All those battles over there with mountain 

biking on Mount Tarn pretty much have to do with the watershed of 
the Marin Municipal Water District. They have had to learn to 
cope with a difficult problem there. Watershed managers will 
tell you that, given their preference, they would not have either 
mountain bikes or any kind of motorcycles in their watershed. 
Over there I m told they don t have motorcycles; they just have 
mountain bikes. But they do have problems with it, and it s a 
difficult management problem. My hat is off to the Marin 
Municipal Water District because they do a good job managing that 
frequently controversial issue. East Bay has not had to face 
that so much, at least to my knowledge. The Contra Costa Water 
District is now having to cope with it a little bit as it plans 
recreation for its new Los Vaqueros Reservoir, so that s an 
interesting little sidelight on recreation. 



Grazing 



Maddow: Grazing is another issue. Grazing is an important element in 

range land control and vegetation control and avoidance of fire. 
Fire can be a terrible thing in a watershed, for a water supply, 
for a drinking water supply. The aftermath of a fire is always 



227 

increased erosion. So well-managed grazing can be important as a 
watershed management tool because it can serve as a buffer to 
fire. There are some significant problems with it, which we are 
learning a great deal more about now as water managers are trying 
to cope with the relatively newly discovered problem in water 
supply. It s something called cryptosporidium. It s a little 
cyst. Actually, it s called an oocyst, one word. 

If it gets into a water supply, it can be deadly. Something 
like 110 people in Milwaukee died in a crypto outbreak a few 
years ago, and 400,000 got sick. Las Vegas also had an outbreak 
and several deaths. It is now the most active regulatory area in 
the drinking water field. Crypto gets into drinking water 
through the feces of animals, and cattle in particular. Most 
particularly waste from calves, and therefore in grazing 
management it is important to keep the cattle away from the water 
and away from the water courses which can have direct access to 
the drinking water reservoir. 

That s a tough management problem. Yet East Bay, again, has 
done, as I understand it, a pretty darn good job of managing for 
it. Crypto is a real tough issue and not an easy one to manage 
for. Giardia is another one. Giardia has been known a little 
longer. The cyst is bigger. It s not very big, but it s bigger. 
Up until the seventies , I never heard of giardia in all my years 
of camping and hiking and all that. It used to be you drank out 
of streams in the Sierra. You don t do that any more, do you? 
It s because of giardia. And it s largely because deer and 
raccoons carry them, and they re everywhere now. 

So anyway, that s an element of recreation and watershed 
management that relates directly to the quality of the water that 
we serve, and we ll be hearing a great deal more about regulation 
and treatment techniques to deal with those things and other 
biological contaminants over the next few years. 



228 



Camanche Reservoir 



LaBerge: When you were at the East Bay, what part did you have to play in 
any of this? 

Maddow: In drinking water quality and in recreation? 

LaBerge: In recreation. Were you litigating? Besides the golf course. 

Maddow: The golf course litigation was one little sidelight. One of the 
areas we dealt with most was actually recreation at the 
district s Camanche Reservoir, which is not a drinking water 
reservoir. Camanche was the reservoir that was built in the big 
building program of the late fifties and early sixties, which 
allowed the utility district to expand its supply from 200 
million gallons a day to 325 million gallons a day. 

The idea is that Camanche, which is downstream of Pardee, is 
the reservoir in which the utility district can store water that 
belongs to people who have senior water rights , who are 
downstream of Camanche. And by having Camanche to store the 
water for those senior rights holders , the utility district can 
store more water in Pardee for use as drinking water. 

When Camanche was built, the local counties, Amador, 
Calaveras, and San Joaquin, thought that it would be a wonderful 
recreation opportunity. And so the utility district agreed 
finally to the formation of what was called the Tri-County Park 
Board to actually manage recreation there. The park board leased 
the property from the utility district, and then it entered into 
concession agreements for the development and operation of 
recreation at the north and south side of Camanche. 



It lasted for quite a while, and it was a failure. For a 
variety of reasons, largely thought by East Bay people to have 
been related either to undercapitalization or inadequate 
management capabilities on the part of the concessionaires. It 
was always sort of an extra responsibility of the counties. No 



229 

one really ran it. The utility district had to work through the 
pack board and the counties to try and keep a level of management 
there. 

Eventually, the utility district had to go in and, with the 
cooperation and agreement of the counties, put the park board out 
of its misery and buy out those concessionaires and then go in 
and kind of straighten things out. Up through 93 I had a very 
large hand in all of that. Fortunately, none of it litigation. 
A lot of administrative work. 

One of the triggering events to putting the park board out 
of its misery and the utility district buying out the 
concessionaires was that in 1979 through 81, the utility 
district decided that it would try and increase its power 
production. This was at a time when federal law had changed and 
made hydroelectric power at a facility like Pardee or Camanche 
much more valuable. And so a determination was made that a new 
power plant would be built at Camanche, and a third unit would be 
added to the two units of the existing Pardee power plant. 

To do so, a license was required from the Federal Energy 
Regulatory Commission. The utility district had actually had a 
license, way back in the very early days of the predecessor, the 
Federal Power Commission. It was license number 567. And some 
very wise people at the utility district at some point were able 
to convince the Congress of the United States to pass a law that 
in essence cancelled that license and said the utility district 
was not going to be a federal power licensee for that Pardee 
power plant. 

Well, in the late seventies and early eighties, the rush to 
build hydroelectric power brought back the federal grips . The 
utility district applied for a license for a new power project, a 
new plant at Camanche, and for the third unit at Pardee. The 
project license area, as defined in the maps that had to be 
included with the application, included the whole recreation 
area. 



230 

And so, to make a very long story short, a few years later, 
a young woman who worked for the staff of the commission in San 
Francisco was out on one of their annual licensee inspections, 
and she concluded that the two recreation areas in Camanche were 
absolutely awful, and she was absolutely right. It was that 
event, the federal regulatory agency coming in and saying, "Oh, 
my goodness," that kind of got the utility district galvanized to 
do something about recreation activity there. 

I don t know exactly what the status of it is now, but I 
believe the utility district went in, spent a fair amount of 
money, cleaned up the recreation areas. I imagine that there are 
new licensees or concessionaires in there, operating the 
recreation activity, and I would suspect it is far improved over 
what it was. 



Contract with Park District for Peace Officers 



Maddow: That was a major activity that we were involved in in the legal 

department for quite some time. Other recreation area activities 
that we got involved in included the time when the utility 
district decided it wanted to create a police force. We wrote 
the legislation and helped to do the groundwork that led to the 
establishment and operation of the utility district police force. 
It was something that none of us in the legal department thought 
was a good idea, I m happy to say, because the utility district 
eventually agreed with us and did away with it. 

LaBerge: For just the recreation areas? 

Maddow: For the recreation areas. The motivation was right, but somehow 
the whole idea of the utility district having peace officers to 
manage having those people be a part of the watershed recreation 
activity was never a good fit. And so the utility district 
transferred much of that responsibility and some of those people 
transferred is the wrong wordto the park district. Then the 



231 

utility district contracted with the park district, which had an 
existing police force, and the park district does much of that 
work for the utility district now. They were in many respects 
better equipped for it. 

But the legal department--! had a role in that. Fortunately, 
no litigation, except an occasional lawsuit to defend. We never 
had, like, police brutality or something, but we did have 
occasional minor tort claim activity that related to people with 
various complaints about the police force, but that was a very 
minor level of activity. 

There were occasionally recreation area activities that did 
result in damage cases and that sort of thing. We did have one 
large wrongful death claim involving a man who fell from a 
bicycle in one of the recreation areas. But no big cosmic cases 
or major issues that I can recall. More administrative 
activities that could keep you quite busy. Rates and charges 
issues exist over there. How one goes about setting up permit 
systems and controlling a variety of access activities. A fair 
amount of interaction with the local land-use planning 
jurisdictions, in particular with regard to such things as road 
access and things like that. 



Pump-back Scheme for Camanche. 1988 



LaBerge: You wanted to talk about the [1988] pump-back scheme at Camanche. 

Maddow: I will. It s a water rights matter, and I think it s a 

fascinating one from a number of perspectives. This was during 
the drought of the late eighties. The utility district was 
facing the prospects of declining available supply and rationing, 
et cetera, down in the service area, and so a variety of 
alternatives was investigated for how to supplement the 
district s water supply. In the drought of the seventies, the 



232 

supplement was something we talked about before, where the 
district pumped water out of the Middle River. 

In the eighties, an effort was made to take a different 
approach to that. The theory was that the quality of water needed 
for the uses downstream of Camanche was probably significantly 
less than drinking water quality; perhaps, in the emergency 
circumstance that the district was in, one way to do it might be 
to pump water out of the Delta, water that the district would get 
a right to by virtue of making special arrangements with the 
bureau to use some American River water that would be released 
from Folsom, run down the American, down the Sacramento, into the 
Delta. The district would pick it up someplace and then figure 
out a way to get it into Camanche. 

The idea was one that at the beginning, when everyone was 
enthusiastic about it, was a high-level management decision and 
plan and all this. Then, later on, when it began to run into 
some rough spots, it became known as the Stein Plan, after Dick 
Stein, who was a hydrographer down there, who really took this 
idea and showed how it could be made to work from a hydrographic 
and hydrologic standpoint. As I say, later on it became Stein s 
idea, when it looked like it was going to have trouble 
[chuckling] with regulatory agencies. Dick is a good friend, and 
I know he ll laugh when he hears that I ve said that. It s not 
meant in a critical way at all. It s just kind of the way things 
work in bureaucracies. Success has many parents. 

Anyway, the idea was that the utility district would build a 
pump station which would pump water into one of the aqueducts . 
The water would be pumped backwards . The aqueducts run from east 
to west. We said you could pick up Delta water and run it 
backwards and dump it into Camanche Reservoir, where it could be 
used to satisfy the downstream needs, thereby preserving more of 
the Pardee water for drinking water purposes. 

In order to do so, we needed to file a petition with the 
State Water Resources Control Board that would allow us to change 
points of diversion and methods of diversion and purposes of use 



233 

and places of use and that sort of thing for some of the water 
under a variety of rights. To make a long story short, it 
resulted in a fairly lengthy water rights hearing. Bob Helwtck 
really carried the load. He is a very good water rights lawyer. 
I had a bit of a role in it, but Bob did the majority of the 
work. I think I perhaps made an opening statement or maybe a 
closing statement. Bob did all the work. 

We were opposed in that hearing by San Joaquin County and 
by the city of Lodi. The city of Lodi has a groundwater system 
for its drinking water supply. Of course, they re right on the 
Mokelumne, and they have this old, old right, as against East 
Bay, which they re very careful to guard. There are 
circumstances under which East Bay might have to supply water to 
the city of Lodi if in fact it s determined that the operations 
of the district s facilities have resulted in a decline in the 
groundwater that s available to the city. So drinking water 
quality and quantity issues are very important to that city. 

In any event, the upshot of the lengthy hearing was that the 
State Water Resources Control Board could only permit the utility 
district to go forward with what it was proposing if it could 
find that the changes the district was. seeking to make in water 
rights and their operation would be without injury to any other 
lawful user of water. The board eventually found that there 
would be a very slight increase in the trihalomethane , the THMFP, 
for the water drawn from Lodi s wells. 

Now, with THMs, the regulatory standard that is the critical 
standard is one hundred parts per billion, and the water district 
was producing waterin those days it was probably around seventy 
parts per billion. Maybe fifty to seventy, something like that. 
Lodi s groundwater was at something like one or two parts per 
billion, and the evidence was that, at worst, the operation that 
the utility district was proposing with the pump-back of Delta 
water, would have raised their THM level from two to six, as I 
recall. And the board found that that was a sufficient injury so 
that it had to disallow the permit that the utility district had 
sought. 



234 

I understand that. "Without injury" is the applicable legal 
standard. I think that under the circumstances the board had a 
number of other options. It did not have to apply that standard 
as literally as it did. What s interesting today is that there 
are legislative proposals around to free up the transfer of water 
between water rights holders or between basins or what have you. 
And there has been quite an extensive effort to write a model 
water transfer package. A professor named Brian Gray from over 
at Hastings Law School has been the principal author, and it s 
being sponsored by the Bank of America and the [California] 
Business Roundtable and the Farm Bureau and people like that. 
It s quite a good piece of work. 

One of the things that it would do would be to change that 
legal standard from "without injury" to "without significant 
injury." I think that if that legislation or something like it 
should be enacted, and if the Stein Plan were proposed again, the 
utility district could probably get it permitted and could 
probably use something like that pump-back scheme in an effort to 
stretch its available water supplies during a drought period. 

I don t know whether that s the plan the utility district 
would hit on in a repeat of 88, but that is the one it tried 
back then. It was a good hearing because all parties were very 
well represented. It was the first time we had to deal at great 
length with the Committee to Save the Mokelumne, which is an 
organization that grew up up in Lodi, around a man named Bill 
Jennings and his lawyer, Mike Jackson. And that organization has 
been after the utility district ever since. They re the ones who 
really took the utility district on over the Penn Mine in more 
recent years. But that s where we first really encountered them 
in a significant way. 

But the case was well litigated. It was a fun hearing in 
the sense that we didn t have a lot of extraneous stuff. You 
really got to focus on the issues, and it was being done in a 
very professional way. I think all the people who were in it 
came out of it feeling as though they had given it their level 
best shot. We were disappointed because we didn t prevail, but 



235 

we gave it a great shot, and we did a lot of scientific work that 
I think the utility district can still use as it thinks about its 
various and sundry options with how to supplement its water 
supply in the long term, in the future. 



Scientific Background from EBMUD Experts 



LaBerge: That s a question I have for you: where did you pick up all the 
science you had to know for this? 

Maddow: By hanging around with these engineers. The only way you can 

learn it is by a kind of osmosis, if you haven t studied it. If 
I had been a civil engineer by education or hydrology or 
hydrography student or something like that, it would have been 
great. But basically I just worked with these people and 
listened to them and did an enormous amount of reading. And I 
was fortunate in that the utility district s technical staff is a 
very good staff. They are not only people who know this stuff, 
but they know how to explain it, including to people like me, to 
whom it sometimes doesn t come so quickly. 

After a while, when you work with people like Jon Myers and 
Kip Spragens and Dick Stein--! mean, those people are just-- 
they re really good. And Orrin Harder and Jack Reilley. You 
know, people from the earlier periods. One of the things that I 
always liked about working with the utility district s 
professional staff was that we could always count on them to 
spend the time necessary to make sure the lawyers knew what these 
people were talking about. Even if all the lawyers were doing 
would be to sort of proverbially open the door so we can shove 
the expert through. Sometimes they knew that we were going to 
have to get into the dialogue, and so we were always able to work 
in a very cooperative spirit and in a friendly spirit. But most 
importantly, it was on a very high professional plane. That s 
part of why East Bay MUD has been as well recognized a utility as 



236 

it has been for so long. It s high-quality people who work on a 
very high professional level. 

If you go around the state in particular, but the country, 
you could find lots and lots of people who did at least part of 
their training at East Bay MUD, who really learned what it meant 
to take their professional knowledge and their wisdom and apply 
it in a very professional way. That s the part that I think is 
different in East Bay MUD. It s that gloss of professionalism 
that is a part of the ethic of the organization. And that s what 
kind of sets it apart, I think. And it has for a very long time. 



Value of Historical Records in Water Rights Issues 



LaBerge: In fact, Jon Myers is really interested in the oral histories 
because of water rights issues. 

Maddow: Jon Myers understands something that not very many people at the 
utility district have understood over the years . Many are 
interested; not many have understood it as well as Jon. Your 
water rights are only as good as your understanding of your 
records. A water right is called a usufructary right. You 
either use it, or you lose it. It is only as good as you make 
use of it. And the only way you can demonstrate your use of it 
is through those records . And so Jon and I have had many 
conversations over the years about the significance of 
maintaining good hydrologic records. Nobody has anything like 
the store of records the utility district has for the Mokelunme 
River. 



There are other rivers, both larger and smaller than the 
Mokelunme, where somebody called the water master has been given 
the responsibility of keeping all the records. Few water masters 
have records that are as encyclopedic as the utility district s 
have been. Sometimes Jon gets angry at the fact that in more 
recent years, in the last twenty years, the utility district has 



237 

backed off on some of its record-keeping functions . It used to 
have hydrographers who-- 



Maddow: The hydrographers in Lodi kept records on the crop use and the 
other water use details by farmers who have rights that are 
senior to the utility district. That s very important because 
the utility district has an obligation to get water to those 
people, and it has an obligation to get water to the losses, as 
the water moves down the river, come out of the utility 
district s hide. So as their uses change, in particular as they 
diminish, the utility district needs to know about that so that 
it can make sure it is sending the right amount of water down the 
river, not a drop too much, if it can help it. 

And that s why Jon is so hot on the records and all of that 
and the understanding of how those water rights came to be and 
their care and feeding . He s a real master at that . When the 
utility district stole him away from the railroad industry, it 
did a good thing. 

Kip Spragens isn t quite as visible in a lot of these things 
as Jon, but if anything, in some respects Kip s knowledge is 
deeper than Jon s, and that s not a slight to Jon; it s just 
praise of Kip. They have another young person there, Lena Tarn, a 
young woman who has been there a few years now. Lena has not 
their encyclopedic knowledge of it, but she is an absolute master 
at taking everything they ve got and computerizing it and being 
able to manipulate it through the computer. Those talents are 
absolutely critical to somebody who has surface water rights of 
the type that the utility district has. And that staff is first- 
rate; there are a number of others as well. 



238 



The Penn Mine 



[Interview 6: June 18, 1997] it 



Maddow: The Penn Mine is a fascinating subject, and there are a couple of 
things I ll need to read to really be sure that I am up on it. 
But Just in a nutshell, let me say that it s a great example of 
how doing the right thing can sometimes come back to haunt you. 
Because the utility district and the Regional Water Quality 
Control Board for the Central Valley tried very hard to clean up 
somebody else s mess. Or, better yet, to take steps to make sure 
that a mess left by somebody else didn t foul up the waters of 
the state. 

In so doing, they took some actions that subsequently have 
been found by the courts to have been improper or illegal, and as 
a result they are now having to go in and spend vast sums of 
money to clean up this mess that somebody else left. And it s 
unfortunate, but it sometimes happens that way. I just think 
it s unfortunate that the utility district ran into it. A lot of 
litigation. Bitterly litigated. Some results that sometimes 
struck me as being a little bit stretched, but we ll talk about 
it more in detail later. 

LaBerge: Okay. 



Historical Background 



LaBerge: Okay. When we ended the last time, we decided we would just 
check off some of these last issues. One was Penn Mine. Why 
don t you tell me about that? 

Maddow: It s a tremendous story that I m going to tell you in the 

thumbnail version. On the south bank of the Mokelumne, between 
Pardee and Camanche, there is an old mine commonly known as the 



239 

Perm or the New Penn Mine. It was a source of minerals that were 
used in the munitions industry in every war from the Civil War 
through the Korean War, and it would have been used in the 
Vietnam War except for the fact that by that time the water 
quality laws of the state had started to come into effect. 

When the utility district purchased property for Camanche 
Reservoir, it ended up having to acquire some property which had 
previously belonged to the Penn Mine, portions of the mine 
property closer to the river. 



Court Finds No Responsibility on Part of War Department 



LaBerge: Penn Mine belonged to the government? 

Maddow: No. Penn Mine belonged to a private company. There is a 

government tie because in World War II the mine had been shut 
down. It had been shut down after World War I, some time after 
World War I. But it was reopened in World War II and was in fact 
operated by a company that I believe was called Eagle Shawmut. 
They got started as a result of a loan from the War Department. 
In fact, the War Department was the operator of the mine through 
Eagle Shawmut for a period of time during the war. And something 
on the order of 10,000 tons, I think, of zinc concentrate, or 
something like that, came out of the mine for the munitions 
business. 



To skip ahead a little bit, much, much later, in the late 
eighties and into the nineties, the utility district sought to 
establish that some of the contamination of the site and of the 
Mokelumne was as a result of the government s ownership and 
operation, or at least having a stake in the ownership and 
operation of the mine, and that therefore the federal government 
ought to participate in the cleanup. 



240 

That led to some very significant litigation, in which the 
utility district was unsuccessful, as I understand it. That has 
been concluded since I left. But the theory was that under 
modern pollution prevention and contamination law, CERCLA 
[Comprehensive Environmental Response, Compensation and Liability 
Act] being the principal law, I think, those who were responsible 
for the pollution are forever responsible. 

So the utility district took the position that the old War 
Department s financial arm that got the mine up and running there 
in World War II--it was an owner-operator; it had an owner- 
operator relationship. There was a case coming out of, I think, 
North Carolina where this same government entity had funded the 
construction of a mill to produce, as I recall, cord that was 
used in parachutes or some such thing in World War II. 
Eventually, in that case, a federal court determined that the 
United States was the owner-operator of the facility and 
therefore had continuing responsibility. 

In the Penn Mine case, the federal court reached a different 
conclusion, which means that the old War Department interests 
will not result in the United States having to pay a cost of that 
cleanup. That manifested itself in a piece of litigation that I 
think was called East Bay MUD v. Department of Commerce, because 
the United States Department of Commerce was ultimately the part 
of the U.S. Government that succeeded to the interests of 
whatever that War Department entity was that had financed it. 

Anyway, the mine was in private ownership. Pretty busy 
place, whenever there was a war on or people thought there was 
gold. Huge mine. I mean, there are something like thirteen 
miles of shafts and adits under the mine. Essentially, when it 
shut down for the last time, it was abandoned, and what was left 
was a series of slag piles and tailings and open adits and 
mineral-laden material, and a horrible potential water-quality 
problem. 

I think it was in the forties, when the mine was in 
operation, that there was some kind of a smelting operation on 



241 

the north bank of the river. They had a wooden flume that ran 
across the river and carried material from the mine or perhaps 
wastes from the mine. I m not really sure. There s a story that 
I never really tracked down, and it was to the effect that the 
flume broke, and as a result, some of the mine material or waste 
actually got into the river; as an old time East Bay MUD person 
recorded at one point, in a note that I saw someplace, when the 
waste spilled, it killed all the fish from the mine to the Delta. 
So the potential water quality issues related to the heavy metals 
in this mine were pretty serious. 



EBMUD Acquires Land for Camanche Reservoir 



Maddow: When the utility district went up to buy the property for 

Camanche, the ultimate decision was to build Camanche as we now 
know it, of about 430,000 acre-feet of storage capacity. 
Alternatives which were eliminated included a smaller Camanche 
plus one or two smaller dams upstream from Pardee. When full, 
Camanche would inundate a portion of the old Penn Mine property. 
That s what the utility district had to buythat portion which 
would have been inundated. It included, as I recall, the strip 
of land along the river. I want to say 180 acres, some number 
like that. It included some of the old slag heaps where 
materials that came out of the smelter that looked like giant 
black bathtubs of crystallized materialthere was a huge pile of 
that. And then there were tailings and things like that. And 
there was an old mill, and there was some other building. 

But the utility district did not acquire the evaporation 
ponds, which were the areas where there was thought to be perhaps 
the most serious of the potential contamination problems, as I 
recall. In the 1970s, during the drought, Camanche, of course, 
was way down, and there was some incident involving heavy metals 
and problems with regard to fish in the river downstream from 
Camanche. It was in the river, not in the reservoir. There was 
a concern that, at the conclusion of the drought, particularly if 



242 

you got a real wet period of time, water flowing from above the 
mine, across the mine property, down through two creeks that 
crossed it, would reach the Mokelumne, reach Camanche, and erode 
down into those sediments and those waste piles and could cause a 
more significant heavy metals contamination problem. 



Attempts to Contain Mine Wastes 



Maddow: So in 1977 and really in a big way in 1978, the utility district, 
in very close cooperation with the Regional Water Quality Control 
Board for the Central Valley and with, I guess I would call it, 
sort of grudging cooperation on the part of the California 
Department of Fish and Game, went in to try to engineer a 
containment scheme to keep the mine wastes from reaching the 
Mokelumne, reaching Camanche or the river. At first the regional 
board was pushing East Bay to do some thing- -eventually the 
utility district was successful in getting the state agencies to 
agree to work together. 

At the heart of the scheme was the idea that there should be 
ditches built above and around the old mine site so that clean 
water, rainfall, that was falling in the uphill areas would flow 
as surface water runoff, be intercepted by the ditches, and reach 
the river without ever going into the contaminated areas. That 
was to be the heart of the system. That part of the system was 
to be constructed by the Regional Water Quality Control Board. 
And in candor and for reasons that I m not sure I ever knew, or 
if I did I shouldn t try and comment on them because I don t know 
about them from a technical standpoint, but that part of the 
system was never really completed. The regional board either 
couldn t do it, didn t do it, or didn t do it right. Something 
along those lines. And the result was that there was more water 
reaching the mine area than should have happened for this system 
to have fully worked as it had been conceived. 



243 

The other principal element of the system was something 
called Mine Run Dam. There were two creeks that ran down into 
and through the mine property. One was called Hinkley Run, and 
one was called Mine Run. At the base of the mine property, in 
the area that the utility district had acquired, they kind of 
came together. The utility district built a small dam there. 
The idea was to contain the runoff from precipitation that fell 
on the mine, and to the extent that there was any leaching coming 
out of the mine, out of the soil, it would be contained there. 

There was this series of old evaporation ponds that had been 
left when the mine was abandoned, and those were kind of scooped 
out and cleaned up a bit, in hopes that they would continue to 
function as evaporation ponds, and Mine Run Dam down there would 
be sort of a last resort. The idea was to have it catch the 
runoff from the mine, and then eventually there would be a 
process of evaporation. Mine Run Dam was built so that it could 
have water on both sides of it because at its high-water mark, 
Camanche would be inundating the downstream side of Mine Run Dam, 
and this impoundment of water which had crossed the mine property 
and picked up mine wastes would be on the upstream side of that 
dam. 

It worked reasonably well, not perfectly. The principal 
problem being the failure to complete the ditches. This system 
was not an easy thing to do. Nobody wanted to do it, but the 
utility district ended up doing it, on the theory that nobody 
else was going to come to the aid of the utility district. 
Nobody else was going to step up to try and clean up this 
problem. It was not a problem of the utility district s making, 
but somebody had to in essence serve as the Good Samaritan. And 
that s really what the district did. 

There s no question but that it did so under threat of some 
sort of regulatory action, principally by the Regional Water 
Quality Control Board. But instead of simply saying, "Throw down 
the gauntlet and let s get into it," the utility district s 
approach was to try and work with the regional board and Fish and 
Game to come up with a solution. 



244 

The regional board has, I don t know, between the Central 
Valley board and the other boards there are probably 10,000 
abandoned mines in California. There haven t been very many of 
them which have created problems of this magnitude. Iron 
Mountain is the other one that gets all the attention. It s up 
near Lake Shasta. 



Involvement of Regional Water Quality Control Board and 
Department of Fish and Game 



Maddow: It s pretty clear that the water board grudgingly came to the 

idea that it ought to assist in all of this, but when it did so, 
it really did get into it. And to the credit of that regional 
board and the people who worked on it, when they made the 
decision to become a co-Good Samaritan, they stuck with it right 
through the end, even though they got very badly beaten up by it 
and as a result of it over the years. 

* 

LaBerge: What was your involvement? 

Maddow: At the time that we were trying to figure out a way to solve the 
problem, to address the problem, I was the lawyer who was on 
point, working very closely with the man who at that time was the 
district s director of engineering, a man named Walt Anton, who 
is dead now. Walt had the technical idea, and my role was to 
work with the regional board staff and lawyers to try and make 
sure we could put together something that would be consistent 
with California law and which would make institutional sense for 
both entities. Much later federal law became very important 
regarding this effort, but back at the beginning state law was 
the focus. 



One of the things that I was insistent on was that the 
utility district do everything that it could, including just 
pressuring the regional board, to get the Department of Fish and 
Game to sign off because you have to remember that, on the 



245 

downstream side of Camanche Reservoir, there s a fish hatchery 
that s operated by the Department of Fish and Game as one of the 
mitigations for the utility district building Camanche Reservoir. 
And that fish hatchery in a sense was kind of the canary in the 
coal mine. If there were going to be water quality problems 
stemming from the Penn Mine, they would probably first be 
realized in that sensitive environment of the fish hatchery. It 
had eggs and fry and those kinds of things . 

So I thought it would be important to have Fish and Game not 
necessarily as a co-Good Samaritan but at least acknowledging 
what was happening and getting them to sign off in recognition of 
what we were trying to do. I viewed what we did as being 
moderately successful in the sense that institutionally at the 
time it worked. We worked very closely with the executive 
director of the regional board, a man named Jim Robertson, who 
will ever remain in my memory because in his office he had three 
things on his wall: his college diploma, his registration as a 
professional engineer, and in between the two of them he had a 
photostat of his birth certificate, with his two little feet! I 
always thought that he understood the important things in his 
life! 



But the man at the regional board who really made it go was 
named Bill Crooks, who was assistant executive director, and 
later became the executive director. And we worked very closely 
with a lawyer who was from the state board legal staff but was 
assigned to that regional board. His name was Buck Taylor. 
Buck, of course, was the lawyer for the state board many years 
later, on the American River stuff. 

LaBerge: Okay. That name was familiar. Maybe you mentioned him. 

Maddow: Yes, I think I probably did. I have a very high regard for Buck. 
I think he s an excellent lawyer. He s one of the really good 
people working for the state in water resources matters. 

In any event, the district put together this project. Tom 
Linville, who we talked about before, who is now assistant 



246 

general manager of Contra Costa Water District, was the project 
engineer. He has a photograph up on the wall of his office now, 
something that s called "Linville Dam." That s what we jokingly 
called it. And that picture says that the lake behind it is 
known as "Lake Maddow." (I don t want that to be my claim to 
fame!) So we kind of went way back with all of that. 

The problems really, however, became serious ones and much 
more expensive ones for the utility district in the eighties. An 
organization called the Committee to Save the Mokelumne became 
very involved in activities concerning the utility district on 
the Mokelumne and in general. They became involved at a number 
of different places at times. When I talked before about I 
jokingly referred to as the Stein Plan, the pump-back scheme in 
the eighties, the Committee to Save the Mokelumne became very 
involved in all of that. 

But they got really interested in Penn Mine. Mr. Bill 
Jennings, who was and I suspect still is the main person in that 
organization, believed that the utility district had made a 
terrible mistake when it built Pardee because Pardee intercepted 
flows that would otherwise have diluted the mine wastes . The 
mine was already there when Pardee was built. And he thinks the 
utility made a worse mistake when it built Camanche, which he at 
various times characterized as a heavy metal sink for what s 
coming off the mine, et cetera. 

He and his organization, with the legal assistance of the 
Sierra Club Legal Defense Fund, put together quite a significant 
effort, primarily under federal law, to in effect get a higher 
degree of regulation of Mine Run Dam and the old Penn Mine 
solution, and to force the district and the regional board to do 
what under some other circumstances might be almost like a 
Superfund cleanup. It was not done under Superfund, but it 
almost has some of those trappings. 



247 



Committee to Save Mokelumne Rver v. EBMUD, 1993 



Maddow: To make a long story short, the district took a pretty tough 
beating, in my opinion, in those cases. There are several 
different elements to the battle. But the main case that I think 
about, because it was going on when I was still there and it was 
decided not too long after I left, is a case that s called 
Committee to Save Mokelumne River v. East Bay MUD. It s recorded 
in the Federal Reporter. It was decided by the Ninth Circuit, 
[United States] Court of Appeals on December 29th, 1993. l And 
I ll give you a copy of the opinion. 2 

LaBerge : Great . Okay . 

Maddow: In effect in that case the Court of Appeals held that the federal 
district court judge up in Sacramento, Judge [Lawrence] Karlton, 
was correct when he determined that Mine Run Dam and the efforts 
of the utility district in particular should be regulated, could 
be regulated under the federal Clean Water Act. When Mine Run 
Dam got built in the first place and then as we began to deal 
with the Committee to Save the Mokelumne arguments, et cetera, 
one of the things that we had relied upon, frankly, was a legal 
opinion which I expressed I wasn t the only one, but I certainly 
did- -that Mine Run Dam was not subject to the requirements of the 
Clean Water Act concerning getting something called an NPDES 
permit, National Pollution Discharge Elimination System permit. 
That s the type of permit you find on sewage treatment plants . 

There had been some case law, particularly a case called 
National Wildlife Federation v. Gorsuch. 3 She was the 
administrator of the EPA back in the seventies, I think. Those 
cases indicated to me that a mine was not a point source and that 



43 F.3d 305 (9th Cir. 1993). 

2 See Appendix. 

3 693 F.2d 156 (D.C. Cir. 1982). 



248 

therefore NPDES requirements didn t apply. Judge Karlton held 
and the Ninth Circuit affirmed the decision that said that this 
dam was different, and therefore regulation under the Clean Water 
Act was possible. 

I don t think we would have gotten to that decision had the 
EPA [Environmental Protection Agency] attorney not walked into 
the courtroom on the day Judge Karlton was holding the critical 
hearing and stated for the first time that the EPA decided that, 
by golly, it was possible for this dam to be regulated under the 
Clean Water Act. They had never made a commitment. They had 
never said anything. And then all of a sudden, in the middle of 
the hearing, their lawyer showed up and spoke. It came as a real 
surprise to us. 

That was important in the way the judge made his decision, 
but I don t mean to sound as if I m attacking the EPA or that 
person. Those kinds of things happen in litigation all the time, 
which is one reason why litigation is frequently not a good tool 
for accomplishing any particular objective. The point of it is 
that as a result of all this litigation, the utility district 
ended up moving from Good Samaritan to Deep Pocket. So now, in 
the years since I ve left, the utility district has found itself 
having to come up with a very expensive fix for the old Mine Run 
Dam. 

In fact, it s my understanding that Mine Run Dam will be 
dismantled as a part of this. I find that to be somewhat ironic 
because the data which was assembled at the time the case I ve 
been referring to was decided indicates that Mine Run Dam made an 
enormous contribution to containment of the contaminants which 
otherwise would have reached the Mokelumne River, reducing those 
contaminants by something well in excess of --as I recall, it s 
something like 99 percent. Now, that number needs to be checked 
by someone, and there s no question that some contaminants 
continued to reach the Mokelumne after those facilities were 
built, but dramatically reduced in volume and rate. 



249 

Even so, the court said, "We re not getting to the facts. 
This case is being decided on the law. Can this particular set 
of facilities be regulated as a result of the Clean Water Act, 
the way in which the Clean Water Act works?" As I say, we lost 
that case, and the result has been that the district has ended up 
in this deep pocket mode. 

There was a unanimous decision of the Ninth Circuit Court of 
Appeals. But there was a concurring opinion by Judge Fernandez 
that really caught my attention because my reading of his 
concurring opinion is that he was reaching the same conclusion as 
the other members of the court, but he was really troubled by it. 
And he saidlet me see if I can find that critical passage or 
two. 

[Reading] "Unregulated quantities of pollutants were 
flowing into the river and causing fish kills and the like long 
before East Bay MUD and Board" (the regional board) "did anything 
at all. Those entities sought to eliminate the disasters caused 
by that unregulated flow, and that is why the project was built. 
The result has been a significant improvement in the river s 
environment and a boon to aquatic life." And there s a good deal 
more discussion of the legal principles, et cetera, that were 
involved. 

And he says, "Appellants" (the district and the regional 
board) "earnestly argue that EPA s approach, and that of the 
appellee s, will not serve the long-term purpose of bettering the 
aquatic environment. They indicate that it takes no genius or 
epopt," e-p-o-p-t. 1 I don t know that word. I remember looking 
it up when the decision came out in 1993, but I ve forgotten what 
it is. "...it takes no genius or epopt to see what the message 
will be. Do nothing!" Exclamation point. "Let someone else 
take on the responsibility. Let the water degrade. Let the fish 
die. But protect your pocketbook from vast and unnecessary 
expenditures. Do not try to bring some order out of 



Webster s defines epopt as: an initiate in the highest grade of the 
Eleusinian mysteries; hence, one instructed in a secret system. 



250 

environmental chaos. In short, appellant suggests that no 
Odysseus or Daedalus crafted the policy which we are now asked to 
follow. Perhaps they are correct. I suspect they are." 

That, to me, is a judge who was very troubled by the place 
that the law left him. He couldn t help but reach that result. 
But it s a good characterization of where the utility district 
found itself. What I always thought was really interesting was 
that about the time this was all going on, the executive director 
of the State Water Resources Control Board, after the trial court 
decision, sent out a memorandum to the executive directors of all 
the regional boards, and he in effect said, "Do nothing. Don t 
embark on any mine waste cleanup problems because the state can 
end up holding the bag." I think that s lousy public policy, 
but that s the result of this decision. Do nothing. 

I don t know what they ve done since then, but it does show 
--I don t quarrel with Mr. Jennings or the Committee to Save the 
Mokelumne s attacks that they brought. I don t quarrel with the 
result. I m just saying that from a public policy standpoint 
sometimes you have to take a little broader view, and I don t 
think that that was evidenced in the case, as I view it. Mr. 
Jennings would argue that, I m sure. 

As it now stands, the utility district and the Regional 
Water Quality Control Board have embarked on a very significant 
cleanup program. I don t know all of its details. I m sure that 
that can be found out from the utility district. But it s going 
to involve the dismantling of Mine Run Dam, and it wouldn t 
surprise me at all to find out that one of the other things it 
will involve is finally constructing those ditches that were Walt 
Anton s idea to keep the clean water from getting into the mine. 
That might be one of the best things that could happen. If it 
had happened back in 1978, maybe we wouldn t have gone through 
the rest of all this. 

The legal department at East Bay MUD was very much involved 
in this. So was the district s wastewater department, largely 
because it was viewed as a series of very difficult regulatory 



251 

agency problems that involved both the EPA and the state 
agencies. From an organizational standpoint, the general manager 
(Mr. Gilbert) made the determination that those kinds of problems 
could best be handled in the district s wastewater department, 
where they had a tremendous amount of experience in dealing with 
EPA and the regional and state boards, as a result of the 
wastewater things that were going on in the district that I ll 
talk about in a moment. 

So the leadership of the district, from a technical 
standpoint, came from Wally Bishop and Mike Wallis and the water 
quality people. A man named Richard Sykes. The lawyers were 
very much involved. The district had special counsel, a 
Washington law firm called Swidler & Berlin. Very good lawyers 
who really know their way around the Clean Water Act, but they 
took a beating here. On the other side it was primarily the 
lawyers from the Sierra Club Legal Defense Fund, who were good 
people and who litigated effectively. 

I think one of the results of the settlement of one of the 
pieces of litigation was that the utility district paid 
attorneys fees to the Committee to Save the Mokelumne. I think 
it was an award in the nature of private attorney general s fees. 
This happened after I left. But it s my general understanding, 
that someone from the utility district can confirm, that funds 
paid by the utility district, either as attorneys fees or 
perhaps damages, but I think attorneys fees, were used by Mr. 
Jennings in either his current organization or his original 
organization, the Committee to Save the Mokelumne, or perhaps 
through another organization he s involved in called the 
California Sport Fishing Protective Alliance. 

In any event, one way or another, they created an 
organization called Delta Keeper. Kind of like Bay Keeper here 
in the Bay, where there is a staff of scientists and volunteers 
and gosh only knows what else, who deal with water quality 
problems in the Bay. Bill Jennings is the Delta Keeper, and his 
organization does the same sort of thing up there. I believe it 
is at least partly funded through this East Bay MUD award through 



252 

one of these pieces of litigation. I have no hard evidence, but 
someone from San Joaquin County told me that a few years ago. 

There were two parallel pieces of litigation. One was the 
action by the utility district against the Commerce Department. 
That was started shortly before I left. Swidler & Berlin was 
also handling that. It has been resolved against the district 
since then. 

And then the Committee to Save the Mokelumne, I believe, 
actually through another law firm, another group, not the Sierra 
Club Legal Defense Fund but another, perhaps the Earth Island 
Institute, brought an action under the California Toxic Pits 
Control Act, and that litigation was filed before I left. It was 
kind of put on hold, pending the outcome of the case before Judge 
Karlton. And I know that that case is no longer on hold, but I 
don t know its exact status, and I don t know exactly how it has 
been resolved. And that s something, again, you d have to find 
out from the utility district. 

A huge round of litigation and lots of lots of attorneys 
fees, lots of tough fights. The utility district took a bit of a 
beating. I continue to believe that, from a policy perspective, 
what the utility district did in "78 was the right thing to do. 
I wish it had been done better. I wish that the utility district 
had not had to do it in 78, but if it hadn t done what it did, 
the consequences could have been much worse. 

That s the sordid tale of the Perm Mine in this man s 
perspective. 



LaBerge: Anything more on that tale? 

Maddow: When we visited Penn Mine, we should have taken four -wheel-drive 
vehicles because it was a little rocky. But when you first drove 
into the mine site, when you first saw it, it looked like you 
were on a moonscape rather than on Earth because it was this area 



253 

that had been so heavily mined and it was so heavily covered with 
material that had been brought up out of these mine shafts and 
left in various and sundry states. 

But the most eerie thing about it was that there were these 
evaporation ponds, and the water in them was laced with a variety 
of heavy metals, and in the late afternoon sun the colors of 
those things were like a painter s palette. It was just eerie. 
It was one of those things where you thought, "This is not a good 
place for any form of life to be." [chuckling] And that, of 
course, is one of the principal things that was motivating Mr. 
Jennings and the people who brought the actions against the 
district. 

And they re right! It s just how do you cope with that, 
under the circumstances? What kinds of resources do you put into 
that? 



Public Policy Issue 



LaBerge: Who was the head of the State Water Resources Control Board then? 



Maddow: The executive director at that time was Walt Pettit. He is still 
the executive director. I would have to say that this memorandum 
that he sent to the executive officers of the regional boards 
would have been in 1992 or maybe early 1993. I m sure that can 
be found, either through state board files or utility district 
files. I don t have a copy of it. 

There was one other interesting thing. This was after I 
left. But it may be something that from an historic standpoint 
you might want to pick up on. In September of 1993, which was 
six months after I had left the district s employ, there was a 
dialogue between a man named Harry Seraydarian, who was a very 
high-level official with the EPA in Region 9 in San Francisco. 
He was the director of the water management division of Region 9 . 



254 

Harry made an appearance before the East Bay MUD board of 
directors in a public meeting on September 14, 1993, and tried to 
urge the utility district board to enter into a consent order for 
the cleanup of Penn Mine. That dialogue was transcribed. The 
transcription is 47 pages long, and I got a copy of it at some 
point, and I ll be happy to loan it to you. I have no idea what 
use you can put it to. 1 

But the reason it may be interesting from an historic 
perspective is that in September of 1993 the utility district 
board of directors was led by people who were very strongly 
committed to environmental protection and environmental issues . 
And their frustration with the approach which the EPA was taking 
just drips out of these pages. For me, it was kind of a 
microcosm of the frustration that the utility district, back in 
1978, when we were getting started, through the eighties and into 
the nineties , when we had the board that was in charge of East 
Bay MUD that was so highly energized in an environmental 
direction- -they all exuded this type of frustration at one point 
or another, and this transcript just catches it for that last 
board. And that s why I thought, from an historic perspective, 
that s an interesting dialogue. 

LaBerge: And I ll return this to you? 
Maddow: Of course. 

The other document I will loan to you but I would like to 
get back at some time was from about a week later. The same 
executive director of the regional board, Walt Pettit, wrote a 
letter to Mr. Seraydarian of the EPA, expressing the concerns of 
the State Water Resources Control Board, at least at the staff 
level, to this proposed consent order that EPA was suggesting for 
Penn Mine. 



In the first place, it s a very well-written letter, from my 
perspective. You know, a lot of people might want to argue with 



Deposited in The Bancroft Library. 



255 

that, but the reason I think it s so well written is that it does 
an excellent job of relating the public policy issues and the 
legal issues and the regulatory issues, and what it shows is how 
they didn t always coincide. And it becomes a question of 
balance and perspective. 

These two documents, taken side by sidethe transcript of 
the Seraydarian dialogue in particular, with East Bay MUD s 
director, Andrew Cohen, and then this letter from Walt Pettit to 
Seraydarian. I find those to be fascinating from the standpoint 
of anybody who ever wants to do a case study of the collision of 
regulatory and legal and public policy themes. 

So I ll pass those along. I have no idea whether they re 
the kind of thing that can fit into the kind of project you re 
doing. Again, these occurred six months after my departure from 
the utility district, so I can only offer them as something 
that s been a part of my historic reading . But a good little 
snapshot. That s all I want to say about Perm Mine. 



EPA s Involvement 

LaBerge: The suit was brought by the Committee to Save the Mokelumne? 

Maddow: Correct. 

LaBerge: The EPA was involved because of the Clean Water Act? 

Maddow: Yes. 

LaBerge: Or the friend of the court? Or what? 

Maddow: Well, the EPA had decided that s a very good question, and I 
should have a more precise answer than I m about to give you, 
because my recollection is just a little foggy. 



256 

LaBerge: But when you said the EPA lawyer waltzed in. 

Maddow: Well, EPA was not a party to the litigation. 
LaBerge: Okay. 

Maddow: But the opinion of the EPA was considered to be of considerable 
importance to the court, and as I recall, Judge Karlton actually 
asked for their input at one point, for their contemporaneous, 
administrative interpretation of the act. They are the ones 
charged with the implementation of the act. As I recall, that s 
referred to in the appellate court decision that I just passed 
onto you. The place I remember seeing it most recently is in 
Judge Fernandez s concurring opinion again. He said, "It seems 
to me that, given the history of this project, the EPA could 
properly have determined that this really is much more like the 
dams it dealt with in National Wildlife Federation v. Gorsuch," 
et cetera. 



And then he goes on to say, "But it did not. In fact, the 
information before the district court and before us indicates 
that EPA considers the project to be a point source." And so EPA 
came to that decision, that it was a point source, and EPA on 
having come to that decision in essence had to take some kind of 
enforcement action. That consent order, which is the subject of 
the dialogue in the transcript I just gave you and the Pettit 
letter, was an outcome of EPA s determination that some sort of 
action on its part needed to be taken. 

For a long time, the utility district thought that EPA 
involvement could be a good way to solve the problem if EPA took 
a point of view that perhaps started with what the traditional 
case law had been, and perhaps took more of a problem- solving 
type approach to this. Instead, they took a pure regulatory 
approach and said, "Thou shalt," rather than "We can." And that 
was an enormous frustration, I know, to the utility district, in 
particular to the board of directors of the utility district in 
the nineties. 



257 



Wastewater Treatment 



LaBerge: Well, since you mentioned wastewater, shall we go into that? 

Maddow: Yes. And I have a couple of things I can say about that, and 
I ll make it relatively brief. When I arrived at the utility 
district in the early seventies, it was in the process of being 
one of the agencies to comply in a very big way with the 1972 
Amendments to the Federal Water Pollution Control Act. Those are 
the amendments that required sewage treatment plants to go to 
secondary treatment. Frank Howard and Jack Reilley, but mainly 
Frank, were working on the legal aspects of what it was going to 
take to bring the utility district into compliance with the 
federal act. 



That legal work was primarily done by Frank. I got involved 
as much as anything else in the early years in contract reviews 
and things like that, but the regulatory work was principally 
work which Frank did, and did effectively. 

Much later, the utility district at one point looked at the 
possibility of getting what was called a secondary waiver, given 
the nature and location of the sewage treatment outfall. In 
essence, what that was all about was that Congress provided that 
certain outfalls into ocean water would not necessarily require 
full secondary treatment. If you didn t have to go to full 
secondary, you could have a much less expensive plant to build 
and operate, and that sort of thing. 

So that was one of the options that the utility district 
actually looked at and I guess I would have to say pursued in a 
kind of a limited way. Even though its outfall was in the Bay, 
that didn t pass muster, and the utility district backed away 
from pursuing that alternative and in fact the district did build 
a full secondary plant, a model plant, really an outstanding 
plant, down there. 



258 



Wet Weather Program 



Maddow: My involvement actually was greater in the wet weather things a 
little bit later. One of the elements of the Federal Water 
Pollution Control Act amendments of 72 that was Public Law 92- 
500--was that they matured and they came back before the Congress 
for reviews later. That was planned. That evolved into the 
Clean Water Act. And one of the things that came through the 
Clean Water Act was a statutory mandate to eliminate infiltration 
and inflow from storm sewers into sanitary sewers . 

All over the country there has been this major effort to 
deal with what s called the CSO, combined sewer overflow 
problems. San Francisco, for example, for decades had combined 
sanitary and storm sewers, and one of the reasons why they have 
overflows when you get I/ 100th of an inch of rain over there is 
because you get all the storm water mixed in with the sanitary 
sewers. And they have spent a billion and a half dollars or 
something, trying to get rid of that problem. 

Well, in the case of the utility district, it was a tough 
engineering and institutional problem to cope with those wet 
weather concerns because the utility district doesn t have the 
collector sewers. The collector sewers belong to the six cities 
and to the sanitary district that are members of or participants 
in, this wastewater system on the west side of the hills. All 
the utility district has is the interceptors and the treatment 
plant and the outfall. 

The problem with regard to storm water infiltration and 
inflow was primarily up in the collection system sewers . There 
were some problems down in the utility district system because 
you had to be able to accommodate peaks, and you had to be able 
to deal with treatment. The challenge was to find a project that 
would meet the regulatory and statutory objectives for the most 
reasonable investment of funds that were going to have to be 
generated by local ratepayers, because by the time we got around 



259 

to a wet weather program, there essentially wasn t any grant 
money anymore. 

When the secondary sewage treatment plant was built, there 
was a lot of grant money around. Seventy-five percent federal 
grant money and 12Jg percent from the state, so it was built with 
8?Jg percent grant money. By the time we got around to the wet 
weather program, which was a much bigger undertaking in terms of 
dollars, there wasn t any grant money anymore. 

So loans and revolving funds and all kinds of things had to 
be a part of it. Anybody who lives west of the hills and in the 
sewage treatment district knows that their sewer bills sometimes 
now are as big as their water bills, and that s because of the 
wet weather program and improvements in collector sewer systems. 

The utility district s role was a fascinating one, and I 
have to give Wally Bishop the credit for being the architect of 
this. The utility district s role was first to create what was 
called a Joint Powers Agency, which was intended to attack the 
problem of building a wet weather system for the East Bay that 
would meet federal law. Each of the cities in Special District 
No. 1, plus Stege Sanitary District, in the Kensington area-- 
those are the entities that contribute sewage to the wastewater 
system. Each of them was a member of the joint powers entity. 
East Bay managed it. The joint powers entity in essence 
designed, financed, and constructed a wet weather program. The 
cities built many of the pieces within their own systems 
themselves, but the project that got built ultimately--! call it 
the "stealth public works project." 

LaBerge: That s right. 

Maddow: Not very many people in the East Bay knew it was going on, but 

close to $650 million, as I recall, of money was spent upgrading 
the sewage treatment systems, separating sanitary sewers from 
storm sewers. Before this was done, if you were ever down around 
Lake Merritt, especially down at the foot of Lakeshore, and it 
was raining, you used to be treated to the sight of something 



LaBerge: 
Maddow: 



260 

called the "fountains of Lakeshore," where the manhole covers out 
in the middle of the street would have water spurting up out of 
them or the covers would float away. Sometimes you d see the 
manhole covers held down with big lead weights. 

That was because you had a combination of storm water and 
sanitary sewer water, and the sewer capacity was exceeded. All 
that s gone now because of that wet weather program. And it 
happened in a quiet and efficient and effective way, and it was 
managed very effectively. It took efforts to get federal law 
changed, state law changed, regulatory procedures managed in a 
very effective way. 

The lawyers had a minimal role in it. It was really done 
through the force of will and the persuasive powers of people 
like Wally Bishop and the people who worked for him. Dennis 
Diemer, Mike Wallis, a team of very capable people, and a top- 
notch team of consultants . We had lawyers who were involved in 
some pieces of it, but I have to say it was not a lead role. We 
were always in a support role. 

But it was a challenging project because at the utility 
district wastewater problems are always seen as taking sort of a 
backseat to the water system problems. Those always have more sex 
appeal, more interest, and more political attention. But if you 
look at the utility district since the early part of the 
eighties, the action, in terms of its public works program, its 
engineering and construction programs, et cetera, was primarily 
in the wastewater system. And if you look around the staff of 
the organization now, many of the top peoplethe general 
manager, the manager of operations, the principal engineer in the 
water system- -they all were hired as a part of that wet weather 
program, in one way or another. They were all hired to improve 
the wastewater plant. It s all part of that "stealth project." 

You called it "stealth." Did other people call it "stealth?" 

I don t know if anybody else ever did. I called it the "stealth" 
because it was going on, and nobody knew it, kind of like those 



261 

airplanes that have that stealth technology so nobody s radar 
sees them. So that was my view of it. 



Peripheral Canal Issue. 1982 



LaBerge: Okay. What was the district s stance or reaction to the 
Peripheral Canal in 1982? 

/ 
Maddow: As a general proposition, the utility district tried for a while 

to kind of stay out of the fight, and ended up in a position of, 
I think, opposition, mild opposition I guess I would call it, 
because it didn t want to get into the fight. The utility 
district took its water around the Delta, and there were those 
who used to say that the Peripheral Canal was an attempt to do in 
the eighties what the utility district had done in the twenties . 
Those were not fights or arguments the utility district really 
wanted to get into. 

But it got drawn out a bit because of the political furor 
over the two bills that went through the legislature. First, 
there was Senate Bill 200, and then a few years later Senate Bill 
346. I think it was 346 that ended up being the subject of the 
referendum, et cetera, that resulted in Proposition 9, I think it 
was. 



LaBerge: Yes. 

Maddow: And the negative vote on the Peripheral Canal. 

The thing that I always found most interesting about it was 
the way in which the big political fight about the Peripheral 
Canal bled over into utility district board politics. At the 
time that the big fight was raging on a statewide basis, there 
was a man on the East Bay MUD board named Bill Moses , a very fine 
man, an attorney from out in Richmond. One of the governors had 
appointed him to the California Water Commission, which is like 



262 

the legislative body of the State Department of Water Resources. 
It has been rare that we ve had an East Bay person on the Water 
Commission, and so I always thought that was a pretty good deal. 

But the commission, at some point, took a position in 
support of one or both of Senator Ayala s bills that were to 
build the Peripheral Canal. Bill Moses had to stand for election 
to the East Bay MUD board, and he was opposed by a man named Jack 
Hill, who, as one of the centerpieces of his campaign, raised the 
fact that Bill Moses was a supporter of the Peripheral Canal, 
"which was a terrible thing," and of course in Bay Area politics 
it s always been seen as a terrible thing. 

And so, from my perspective--! don t know whether either 
Moses or Hill would agree with this but from my perspective, 
that was one of the reasons why Hill beat Moses I think the 
first time an incumbent ever got beat while standing for 
reelection. One of the principal reasons was that Hill ran 
against the Peripheral Canal. I always thought that that was 
fascinating because the district really was a little bit removed 
from the Peripheral Canal issues. 

A little earlier than that, in- -let me think now. In the 
last year or year and a half, something like that, of Ronald 
Reagan s term as governor, the man who was at that time the head 
of the Department of Water Resources I think it was John 
Teerink- -wanted to try and take the first steps toward building 
the Peripheral Canal, based upon the Burns -Porter Act which the 
voters had passed in I960. 1 

There was a school of legal thought back around the early 
eighties, or political thought, that they didn t need any new 
authorization, they didn t need any new bill to build the 
Peripheral Canal. They could build it based upon what the voters 
had approved in 1960. And so one of the things that they tried 



The Burns -Porter Water Bonds Act of 1959, called the California Water 
Resources Development Bond Act, was passed by the voters as Proposition 1, 
1960. 



263 

to do was to show some movement, some first step, some 
construction actually moving forward on the Peripheral Canal 
during that governor s administration. 

By coincidence, the step that they tried to get started with 
was awarding a contract for the construction of a siphon where 
the Peripheral Canal would have gone under the Mokelumne 
aqueducts. The Environmental Defense Fund got wind of that 
somehow, and one of their people- -as I recall, it was one of 
their lawyers came before the board, or was talking about coming 
before the board and raising an issue about that. 

And the Department of Water Resources, as I recall, kind of 
backed away, and the issue really didn t get joined. And so that 
was part of the prologue to what later became the two Ayala 
pieces of legislation and this political furor around the Moses 
and Hill election. 

But the utility district was pretty much trying to keep its 
distance from the big fight because it viewed itself as being 
separated from the Delta and wanting to stay separated from the 
Delta. 

The last thing I ll say about it all is a story that I ll 
tell on Gayle Montgomery, who was, of course, in the public 
information office for the utility district but who previously 
had a series of important positions with the Oakland Tribune. He 
once told me that when Interstate 5 was constructed south of 
Stockton, that the borrow pits for the material that was used to 
build the embankment that the road sits on were actually selected 
after having looked at the proposed routing of the Peripheral 
Canal. And so in essence they scooped out what ultimately would 
have become portions of the canal right-of-way had the canal ever 
been built. 

He showed me a photograph that was taken by a Tribune 
photographer, flying over that area in a rainy period, when all 
those little ponds--you know, parts of the borrow pitit s like 
this linear borrow pit, with separators along the way, so it s a 



264 

series of ponds sort of paralleling 1-5, along the track of what 
would have been the Peripheral Canal. The Oakland Tribune kind 
of broke that story, and I always thought that it was just kind 
of an interesting anecdote. Montgomery always took great 
pleasure in all of that. 

My recollection of it was sort of rounded out by driving by 
one of those ponds with Gayle Montgomery one time and seeing it 
entirely covered with snow geese and seeing them all take off, 
which was one of those gorgeous sights that you sometimes see out 
in the Delta. 

Now I don t know what the district s posture is with regard 
to the Peripheral Canal. The utility district has traditionally 
tried to keep a little bit of distance. It has traditionally 
tried to stay in the mainstream of northern California politics 
or political views on issues like the Peripheral Canal. And of 
course the northern California view has always been a very 
negative one in regard to the canal. The utility district tried 
to keep a little out of the main political flow of that, but 
there may have been policy positions that have been adopted since 
I left that are a little more towards the anti-Peripheral Canal 
sentiments than have been expressed up to here. 

I always thought the Peripheral Canal and the water industry 
in northern California could make an interesting story for 
somebody because I think an argument can be raised that, to the 
extent it was going to produce a better-quality water for 
anybody, those who would most directly benefit would be northern 
California customers because there are northern California 
customers of the State Water Project in Alameda County and in 
Santa Clara County. I guess primarily those counties would be 
the ones I d think of right around the Bay, who, you know, if the 
Peripheral Canal got built, they d get better-quality water 
instantly. 

And all they have is a short aqueduct between them and the 
Delta. They don t have any intervening storage or anything like 
that. And yet, in those areas you were seeing 93 percent "no" 



265 

votes on the Peripheral Canal referendum, et cetera. I always 
thought that there was a kind of a gap between the popular 
political side of things and what the water agencies might have 
been trying to do. I m not trying to be an advocate for it. I m 
just trying to observe that there is that gap. 

I don t know whether there will ever be a Peripheral Canal. 
I don t think there will ever be the big one. I think ultimately 
something is going to have to get done to make sure that the 
drinking water that comes out of the Delta is going to be of an 
assured quality. And that s a different question. That can be a 
different question than, Should we build a Peripheral Canal? I 
think we re a long way from knowing what the ultimate result will 
be. 

This Cal-Fed process that s now underway is the best hope 
for a comprehensive look at solving those issues. I think the 
utility district is probably a player in all that. I don t know 
exactly how they re participating, but I know they ve had people 
in a lot of the meetings I ve attended, that sort of thing. 

I guess I would say other than being bashed mightily about 
the head and shoulders for having its own miniature version of 
the Peripheral Canal, and getting dusted by these various and 
sundry political issues, the Peripheral Canal has not been center 
stage for the utility district. Thankfully. [laughing]. 



Variety in the Legal Department 



Divorce Case 



Maddow: I wanted to tell you my five-minute vignette about variety. I ve 
told this story many times. It may be on an earlier tape. I ll 
make it brief. One of the reasons I stayed at the utility 
district for twenty years as an attorney is that the variety was 



266 

the most constant factor. I m not a litigator and never was. 
But in my tenure at the utility district I appeared in court in 
everything from a divorce case to a criminal case and probably 
everything in between, and my client was always the utility 
district. 

The divorce case happened when I was the legal advisor to 
the finance department. There was an employee who was in a 
divorce, and his wife s attorney served an order seeking to 
attach the wages of this current employee, and he did it wrong. 
What had happened was, I believe that the employee s wife was a 
legal secretary, and she prepared the papers and her boss just 
signed them and really didn t look, and she was not aware of the 
special procedures that you then had to follow to get at the 
wages of a public employee. 

I had to tell the paymaster he couldn t honor the order. 
And so the employee s wife s boss took the order down to the 
court, and the judge said, "What do you mean East Bay MUD s 
lawyer says they won t honor this order that I signed?! You get 
him down here!" And it s the only time a judge ever used the 
word "contempt" in relationship to anything that I had done, but 
that was the threat! 

And so here I am, a young, green, wet-behind-the-ears lawyer 
for the utility district. Jack Reilley accompanied me. We 
trotted on down to the courthouse and went in to see this judge, 
and I very patiently explained what the law was. The judge by 
this time had looked it up and understood it. We knew we were 
right, and he knew we were right, and he dismissed us, and we 
walked out. I won t tell you the name of the judge [smiling]. 
But I will tell you that when we walked out and went around the 
corner and got in the elevator and the doors closed and it was 
just me and Jack, he kind of went off. And his face got very 
red, and he said in regard to that judge, "That supercilious son 
of a bitch!" 



[mutual laughter] 



267 

Maddow: And it was a delightful moment for me in hindsight, although it 
was agonizing. But that was my divorce case that took me 
downtown. 



Criminal Matter Diverted to State Water Resources Control 
Board ## 



LaBerge: What about the criminal law matter? 

Maddow: Sometime in the very late eighties or early nineties, I have 
forgotten which, the district attorney of San Joaquin County 
filed criminal charges against the board of directors, the 
general manager, the chief engineer, and one of the operators at 
East Bay MUD, concerning problems that were being experienced by 
fish down in the hatchery down below Camanche. The utility 
district was accused of allowing materials or placing materials 
that were deleterious to fish in the waters of the state, and 
that e a crime . 



To make a very long story short, we were instructed by the 
board to defend this case vigorously. We viewed it as kind of a 
white collar crime situation, in particular in view of the way 
that the local district attorney was talking about the case in 
the press. And it had all kinds of potential overtones and 
possibilities for trouble with regard to how Camanche Reservoir 
operated and how the fish hatchery operated and all of that. 

So more than anything else, the utility district wanted to 
get those criminal charges dismissed so that, to the extent there 
were problems , they could be dealt with in some kind of a 
regulatory proceeding. To make a series of long stories short, 
the utility district retained a very fine white collar criminal 
defense lawyer named Jeff White from the law firm of Orrick 
Herrington [& Sutcliffe] in San Francisco. Jeff was then the 
head of the litigation department there, an absolutely first-rate 
attorney. 



268 

We also retained a local attorney in Stockton, where the 
case was filed, a man named Patrick Piggott. Patrick knew the 
local rules and the district attorney s office and the court and 
all that, and we knew that we needed to have a local presence in 
that case as well. We very vigorously defended that case in an 
effort to avoid ever facing any criminal sanctions. 

In effect, we ended up getting the case dismissed and kind 
of in favor of it was as though it was diverted out of the 
criminal law system and over to proceedings related to water 
quality issues that would be before the State Water Resources 
Control Board. 

LaBerge: Were you general counsel then? 



Maddow: I was general counsel at the time. I got directly involved in 
.: the litigation matters. I in effect served as co-counsel with 
Jeff White and Patrick Piggott. Whenever there was a court 
appearance, I was there. When there were appearances before the 
State Water Resources Control Board, I was there. I probably did 
as much talking as any of them did. 

Jeff White s role was to be the heavy-duty litigator on that 
case, in the event we needed it, and we did need their- -they did 
a lot of writing. They re a very good firm, and we used them 
efficiently and effectively to try and keep our board of 
directors from being faced with criminal charges. And I think we 
did so well. 



But at the same time, the utility district didn t run from 
the issues because the issues related to what was going on in 
Camanche Reservoir in dry years (that s what was going on; that s 
why there was a problem) were issues that needed to be managed 
and needed regulatory oversight, and the utility district knew it 
and had in essence invited it. 



We ended up aggressively pursuing the water resources and 
water quality issues with the regional board and with the state 
board in particular. And, in view of that, we ended up getting 



269 

the criminal charges dismissed, without any adverse ramifications 
for the utility district. It was a lot of very hard work, very 
concentrated work in a short period of time. It took a lot of 
legal time and effort. Two-thirds of my time for probably six 
weeks . 

I view it as a success story because not only did we avoid 
the awful consequences of seeing our top managers and our board 
facing criminal charges, but we straightforwardly and quickly 
addressed the water resources problems and the contamination 
problems, and solved them. And did so in a way that the utility 
district was proud of. It wasn t cheap, but the utility district 
was pleased with the result because it learned a great deal more 
about what it takes to manage its resources as a result of those 
efforts. 

This is where the buzzard feather story comes in. 



Solution 



LaBerge: Just tell me, too, how the problem was solved? 

Maddow: The problem was solved through what is basically a Camanche 
Reservoir Management Plan that, among other things, involves 
finding ways to be sure that you control the quality of the water 
that comes out of the reservoir and goes into the fish hatchery 
in order to protect the hatchery, and at the same time dealing 
with a variety of related problems having to do with the storage 
in Camanche, the flow below Camanche. It eventually evolved into 
what is known as the Mokelumne River Fishery Management Plan. It 
was one of the themes that evolved into that plan. 

The utility district has built, for example, something 
called a Speece Cone, which is a form of, I guess I d call it 
oxygenation device to get air and oxygen into the portions of the 
reservoir that become anoxic, low oxygen, toxic to fish, in 



270 

certain water quality conditions at the end of many simmers, in 
particular dry years. A lot of things like that grew out of 
those efforts. 

The criminal case kind of popped up in the middle of those 
efforts to deal with those water quality matters. It wasn t the 
triggering event. If anything, it may have intensified the 
efforts to solve the problems. It did not lead directly to any 
aspect of the solution. 

The buzzard feather. At one time, in order to acquaint Jeff 
White and the lawyer who was working with him, an associate named 
Mary Novak, to acquaint them with the facts so that they would 
know what they were writing about and getting ready to argue 
about in any one of several forums, we went out on the site. We 
actually were on top of Camanche Dam. We were there with a man 
who at that time was a district employee. His name was Jeff 
Hagar. He was a fisheries biologist. 

And Jeff [Hagar] was explaining what had happened to the 
fish in the hatchery. We could see the hatchery down to our 
left . We could see the reservoir off to our right as we stood on 
top of the dam. And Jeff was explaining the physical and 
chemical and biological facts. I was explaining, or attempting 
to explain to Jeff White, sort of the hydrologic facts as I 
understood them, with flows coming in from Pardee and in 
Camanche, et cetera. 

Jeff White at one point said, "Well, let me see if I can say 
some of this back to you." And he said, "As I understand it, if 
the facts are such and so, we re not gonna have a problem. But 
if the facts are such and so, there is going to be a problem down 
in the hatchery, and if that s what facts turn out to be, it 
sounds like we re dead meat." 

At that instant, a buzzard feather floated out of the sky 
and landed at my feet! I picked it up, and I said [slowly, 
portentously], "This is an omen. I don t know if it s good or 
bad, but it s an omen, and I m keepin this 1 " I guess it must 



271 

have turned out to be a good omen because within a month we had 
gotten rid of the criminal charges and we had gotten the case 
diverted out of the criminal system, and we were dealing with 
these issues in the regulatory environment, and we didn t turn 
out to be dead meat, thank goodness. 

But it became one of my little mementos. I still have it on 
my desk. It sits over there on my desk, with my two spent 
bullets, one of which I found in my parking space and one of 
which I found on the steps of the training center [chuckling] 
when I worked at the utility district office down on Adeline 
Street. We were in what used to be called a "free fire zone" 
sometimes [chuckling] . 

But fortunately those criminal law experiences did not have 
serious consequences for the utility district. We all learned a 
lot about the way the criminal law and water resources interact. 
We learned a lot about the state board, the regional board 
learned a lot about it, and I think the San Joaquin D.A. s office 
learned a lot about it as well. I think everybody walked away 
from it- -I don t think anybody walked away too angry. I think we 
all thought, in the final analysis, the problem that had led to 
even giving any thought to filing criminal charges was addressed 
and a reasonable solution obtained. 

You told me you wanted to talk about the change in the 
board. 



LaBerge: Change in the board. Or, because we only have a little bit of 

time left, your overview of how water rights law has changed. I 
had the thought that I could add one of the articles you wrote, 
the family jewels? It is so good. 

Maddow: I don t have much more to say beyond that. 
LaBerge: All right. Then we ll put that in the Appendix. 1 



J See Appendix, "Dramatic Changes in Water Rights Law Over the Past 
Couple of DecadesA Statewide Perspective." 



272 
Vision Comes from Board of Directors or General Manager? 



Maddow: Let me talk about the board. And this is one man s perspective. 
I don t know if you ll be able to use it. It s not really legal 
in nature; it s more public policy observation from the 
standpoint of somebody who sat in a particular seat. I sat in 
there for twenty years. 

I talked about what the utility district board was like when 
it was five members elected at large. That was a board that 
focused on the broad policy issues. They all looked at the whole 
district, and many times, the vision for where the district was 
headed would come from the board in those days. But at the same 
time, this was a board that recognized that under the Municipal 
Utility District Act [1921], the general manager is supposed to 
be the chief executive and has very strong powers, in some 
respect on a par with those of a city manager in a strong city 
manager form of government. In some respects maybe even a little 
stronger than that. 

Well, as the board changed with the move to ward-by-ward 
elections, and as local politics became much more a feature of 
what was going on at East Bay, I think it was very interesting 
that the board in 1981 turned to Jerry Gilbert to be the general 
manager. He was a very experienced person who came to the 
district from having been the executive director of the State 
Water Resources Control Board, having been the president of the 
American Waterworks Association. He had a broad view of things. 
He was capable of developing a vision of what the utility was and 
could be. 

And that was very much what Jerry s term as general manager 
for almost ten years consisted of. He had a board which had some 
very strong thinkers on it. They didn t always agree with one 
another, but they were capable of addressing the policy issues 
very effectively. And having that kind of a board and having 
Jerry, who was able to create and present to them a vision, for 
them to then apply their policy thinking- -you may not like what 



273 

his vision was, you may not have liked what the results were, et 
cetera, but it was a system that worked, and we got a lot done in 
what could have been some tough times. We didn t always succeed, 
but we got a lot done, and there were some, I think, significant 
efforts made to contribute to the long-term picture that the 
utility district needed to focus on. 

At the time Jerry left there was a significant change in the 
board as a result of the election in 1990. And this is not meant 
to be a commentary on the pre-1990 board or the post- 1990 board 
from a political standpoint or from a personality standpoint. 
It s meant to be from a policy standpoint. The board that came 
in in 1990 wanted it to be the board that created a vision. It 
didn t want the manager to create a vision. It wanted the vision 
of what the district was in 1990 and could becomeor in 1991, 
when they took officethey wanted that to flow more from the 
board. 

It was a board that was split. They didn t have a unanimous 
board in regard to what that board s vision, or the majority of 
the board s vision was on what the utility district ought to be. 
So it was a somewhat tumultuous time, I think, for that board. 
The issues that the district was facing were the same. The 
policy matters the board had to deal with were the same. They 
had a different perspective. Many of the issues that the board 
had to deal with were hangovers from the previous period. But to 
the extent a new vision was being developed and shaped, and the 
policies of the district and the programs of the district flowed 
from that vision, it didn t come from the manager anymore. It 
came from the board. 

The particular board member who was probably principally 
responsible for that vision only stayed on the board for one 
term, then chose not to run for reelection. And two of the 

LaBerge: Andy Cohen? 

Maddow: His name was Andrew Cohen. He was the director from here in 

Berkeley. He had succeeded Helen Burke, who was the first of the 



274 

real strongly committed environmentalists to serve on the 
district s board. I ve talked about her before. I have an 
enormous amount of respect for her. I have an enormous amount of 
respect for Andy Cohen. Andy provided most of the vision for the 
period of time when he served on the board. And he was effective 
in what he was trying to do. But, again, he brought in the 
district was reorganized so that it was much less likely to have 
a staff that was going to throw off new vision statements or 
create new programs independently. Perhaps the most symbolic 
change was abolition of the position of Chief Engineer. 

That role, staff s role, in that respect was kind of 
downgraded and pushed down. And that s okay. I mean, that s not 
the only organization that does that sort of thing. But when. 
Andy Cohen left the board after one term, I don t think he 
expected that two of the people who had been elected when he was 
elected were going to lose in the next election. 

And the result was when Andy left, taking his version of the 
district s vision with him, and when those other directors who 
had supported Andy got voted out of office^ you had a new board, 
a board that was not entirely in sync with the vision that Andy 
had had. The person who had been brought in to manage the 
district under the board when Andy was on it and when Andy was 
the vision producer, and the organization that he had created to 
run the district under that, that all changed. For a whole 
variety of reasons, but that all changed. 

The manager left. A new manager was selected. It was 
Dennis Diemer, who had been hired by Wally Bishop to work in the 
wastewater department and who would later become a very effective 
assistant chief engineer in the water system. Now we re at a 
point where I don t know where in EBMUD s organization the vision 
comes from. I m too far removed to know, but what I observed in 
my tenure was thatin the time I was there, where the district 
was headed, what its policies were going to be, what its programs 
were going to be, usually flowed from this sort of central focus 
that either came from the board, back in the old days, that was a 
different kind of board; or a general manager who had a strong 



275 

board around him but who was a real visionary; or it came from an 
individual board member from within the majority group of the 
board. 

And then, in 1994, you had a new election, and I don t know 
where the vision comes from anymore. That s not meant to be 
critical of the present board or the general manager or the 
staff. I m just not down there, and I don t know who does it. 
But, to me, one of the things I learned over twenty years is that 
what the organization is doing, how it s trying to accomplish its 
objectives, starts with some of that. And if you don t have it, 
if you don t have it clearly defined, you can drift a little bit. 

The utility district built a hell of a water supply project 
in the twenties. It built a hell of a project in the forties. 
It built a hell of a project in the sixties. It hasn t built 
anything since. And it needs to because it s out of water (in 
terms of safe yield), and it s facing a declining level of 
security because the "family jewels are made of paste," because 
it s got the FERC and the State Water Resources Control Board 
having taken under advisement decisions that could result in 
changing the productivity of their water rights, and they re sure 
not going to change them upward. 

The utility district needs to move, and they re certainly 
trying to do so, and I give them a lot of credit for that. I 
don t know enough about what they re doing to know whether it s 
going to succeed. I hope it does. But I hope that they have the 
ability to take the long view, like the people did in the 
twenties and in the forties and in the sixties . What they did 
back then was to not only build a system but they built it for 
the ages. They built a system that was big enough so that the 
system they built in the 1920s lasted through World War II. 
That s all the district had. 

And what it did was to serve Vallejo and Treasure Island 
and--San Francisco started its system before East Bay did, but 
East Bay finished first and served water to San Francisco in the 



276 

thirties, because East Bay had built a system that was big and 
flexible and capable. 

The same is true of the second barrel of the aqueduct in the 
forties, and the same is true of Camanche and the third barrel of 
the aqueduct in the sixties. If it hadn t been for that, we 
wouldn t have been able to come up with the solutions we did for 
the drought in that big thing that we talked about that was done 
for all those many agencies in the seventies. 

Those systems, those facilities are probably reaching their 
limit in terms of how much flexibility is left in them, whether 
or not they re going to supply the long-term needs, whether or 
not they can protect the quality of water the district wants to 
serve. Now the district has to face a whole new era of water 
treatment challenges and water quality challenges that are 
different from what we had before. And it s doing so in a time 
when I think the security of their water supply is perhaps more 
in jeopardy than it was during the time that I was there. 

And whether or not they ll have the degree of security that 
they need and have always enjoyed in the past is going to depend 
in large part on what happens in forums over which they have less 
control than they used to have. And so the result is that 
there s a real test here of the policy makers and the people who 
run the district in terms of trying to accomplish things on the 
scale of what was done in the twenties, forties, and sixties, in 
this period of the nineties and the new millennium. And that s a 
real severe test. I wish them all the luck and success in the 
world. I just hope that they have a broad enough vision of it to 
be able to understand what they re getting into. 

I was really encouraged the other day. I was at a meeting 
there representing another client. The meeting just happened to 
be taking place in the East Bay building. We were in a meeting 
room, a conference room, and there was a briefcase sitting in 
there, and there was a jacket on the back of a chair, and they 
were just therethey did not belong to anyone at the meeting I 
was attending. Lo and behold, they turned out to be Art 



277 

Littleworth s. They are using him again to assist them in regard 
to the American River stuff. And I say, "Great." If that s what 
this board and Bob Helwick and Dennis Diemer have done , that s 
ideal because he s just as good as they come, and I respect him 
and I know they value his advice, and that will be good stuff. 

That s my speech. 



Decision to Enter Private Practice 



LaBerge: Okay. Well, in one minute, can you tell me why you decided to go 
into private practice? 

Maddow: Yes. I was becoming too much a part of the administration of the 
district and not enough its lawyer. In part because with the 
changes that went on as a result of the 1990 election- -and, 
again, this is not a focus on the election; it s just the 
evolution of the utility. A number of people had left the 
district- -Jerry Gilbert, Ted Way, people who had been there for a 
long time. We had a change in the board. The leadership that 
came in with the new board wasn t interested in what had happened 
with the old board, and yet they knew that they had to understand 
some things, there had to be some continuity. And I became 
sometimes one of the sources through which they tried to learn 
what some of the past had been. 

So I found myself spending a lot of time sort of being the 
institutional memory and the keeper of the corporate history and 
all that . And that s fine , but I kept having to do it . And 
then, you know, a new general manager came along. I really liked 
the man, but I ended up having to do a lot of that with him. 

LaBerge: Is this Mr. Jorge Carrasco? , 

Maddow: Yes. And then, once it came time for him to reorganize the 

district, I was asked to get involved in helping to brief the 



278 

consultant who was doing the reorganization. Actually, I guess I 
kind of had a hand in selecting that consultant because I wanted 
to be sure they picked a firm that knew something about municipal 
utility districts, and they did. They picked a good firm. 

And I got asked to help brief the guy who did the study, and 
I did. I spent a lot of time doing that. They came out with 
some recommendations that, had I been the general manager I 
wouldn t have done it that way, but I wasn t the general manager, 
so what I thought and what I think now doesn t count. In fact, I 
didn t like the organizational change that was happening, and 
that was a concern to me. 

And lo and behold, as it began to unfold, I found myself 
heading down the road of becoming the institutional memory and 
the corporate history for the newly hired people. I had done a 
lot of that. In mid 1992 I was asked if I wanted to go down and 
became the general counsel of the Metropolitan Water District 
when Mr. Vendig retired. I had been offered that job in 1988 and 
turned it down, and they asked me if I had changed my mind in 
"92, and I thought about it, and I said no. 

But then, in the winter of 92, on the day after Christmas, 
I was in England. My daughter was at the London School of 
Economics, and we went over to spend Christmas with her. And the 
day after Christmas I took a long walk on a cold, cold day, down 
along the Thames and up through Chelsea. I kind of came to peace 
with myself and said, you know, I m really not enjoying what I m 
doing as much as I think I should be right at age, whatever I 
was, 49. And if a pure legal position comes along that will 
allow me to not have to relocate to southern California, I ll 
consider it. 

Well, a week thereafter, I got a call from Jeff Polisner out 
in Walnut Creek, who told me that Fred Bold, who had been 
practicing water law in Contra Costa County for forty years , had 
decided to retire as his eightieth birthday had just approached. 
And would I be interested in taking over his practice? It 
instantly intrigued me, and I gave it a lot of thought for a 



279 

month, almost a month. It was December 26 that I took a walk 
with myself. It was January 3 when Jeff called me. And it was 
February 1 when I told my staff that I decided to leave. 

It didn t have anything to do with "the board" or "the 
management" or "the district." What it had to do with in a sense 
was all of those things, but mainly it was me facing a sort of a 
career choice at age 49. Do I want to keep on doing what I m 
doing? At that point it hadn t always been the case, but at 
that point, I was working, I believe, very successfully with that 
board and with that manager, and I was not at cross purposes with 
any of them. And, frankly, I think I could have stayed and still 
been there now and continue to have what I would consider to be a 
successful career. 

But I didn t want to do it anymore. I was ready to do 
something else, and I m glad I made the change. I think it was 
healthy for me, and I think it was healthy for the utility 
district. Bob Helwick is now doing a great job as general 
counsel, I suspect. He s ideally situated for what they need at 
this point. 



Transcribers: Shannon Page, Him Eisenberg 
Final Typist: Shana Chen 



280 



TAPE GUIDE--Robert B. Maddow 



Interview 1: February 3, 1997 
Tape 1, Side A 
Tape 1, Side B 
Tape 2, Side A 
Tape 2, Side B 

Interview 2: February 17, 1997 

Tape 3, Side A 

Tape 3, Side B 

Tape 4, Side A 

Tape 4, Side B 

Interview 3: March 7, 1997 

Tape 5, Side A 

Tape 5, Side B 

Tape 6, Side A 

Tape 6, Side B 

Interview 4: March 27, 1997 

Tape 7, Side A 

Tape 7, Side B 

Tape 8, Side A 

Tape 8, Side B 



1 

14 
26 
39 



48 
62 
74 
87 



100 
113 
129 
142 



147 
162 
175 
188 



Interview 5: May 23, 1997 
Tape 9, Side A 
insert from Tape 10, Side A 
resume Tape 9, Side A 
Tape 9, Side B 
Tape 10, Side A 

Interview 6: June 18, 1997 

insert from Tape 10, Side A [5/23/97J 
Tape 11, Side A 



203 
213 
220 
223 
237 



238 
238 



281 



Tape 11, Side B 
Tape 12, Side A 



252 
267 



282 



APPEND IX- -Robert B. Maddow 



A. COMMITTEE TO SAVE MOKELUMNE RIVER, Plaintiff -Appellee v. EAST BAY 
MUNICIPAL UTILITY DISTRICT, et. al. , Defendants -Appelants. No. 
93-15999. United States Court of Appeals, Ninth Circuit. Argued 
and Submitted Sept. 1, 1993. 

Decided Dec. 28, 1993 283 

B. Add Water Code Section 10001. A a memorandum signed by Robert B. 
Maddow and Senator Leroy Greene 289 

C. Senate Bill No. 2458: An act to add Section 10001.7 to the Water 
Code, relating to water resources, February 21, 1986 290 

D. Maddow, Robert B. "Dramatic Changes in Water Rights Law over 
the Past Couple of Decades -- A Statewide Perspective," or "The 
Family Jewels Are Made of Paste." 292 



283 



APPENDIX A 



COMMITTEE TO SAVE MOKELUMNE RIVER v. EAST BAY UTIL. 305 

Cite Mil FJd JO? (9th Clr. IW) 



* cfltion of the appropriate authority are re- 
Lceived by. the district court" United States 
ti: Juvenile Male, 923 F2d 614, 620 (8th 
-oCir.1991). See aUo United States v. M.I.M.. 
-$32 F.2d 1016, 1019 (1st Cir.1991) (dismissing 
.case for lack of jurisdiction due to clear 
. "directive of section 6032 that no proceedings 
; against a juvenile can commence until the 
v* court receives at least a good faith proffer of 
-the; juvenile records or a certificate as to 
c their absence); United States v. Brian N., 
-900 F.2d at 221 (same). 

Because the jurisdictional requirements of 
section 6032 were not met, we vacate the 
adjudication of delinquent status. The case 
is remanded to the district court with in 
structions to dismiss the information without 
prejudice. . ..: ! ; 

VACATED AND REMANDED. 



lo |inNUM(ucmtM> 
ify-v^v^- 



- T.-p-f.j- ."; 
I V *> 



3OMMITTEE TO SAVE MOKELUMNE 
. RIVER,- a California non-profit 
. - corporation, Plaintiff-Appellee; < 



I. . ," 



i .t*If. - 



.- 



^UTILITY DIS 
TRICT, a, California, Municipal Utility 
District, et al., Defendants-Appellants. 

!, . tf No. 93-15999. fSn -Jf i. 

: Urited / i^tJM dourt of, Appeals, 
"Ninth Circuit 

*. -iht" ! it i . . . 

Argued and > Submitted Sept 1, 1993. 



b bedded Dec, 29, 1993. 
V?} >- ;.. . .. > f 



Environmental ferbup brought Clean 
r Act action against municipal utility 
net and members of regional water quali- 
ontrol board, which owned and operated 
idoned mine facility, alleging that facility 
fnarged pbllutantB with out National Pollu- 
nDischarge Elimination System (NPDES) 
3iL The United i States District Court 
Eastern District of California, Law- 






rence K. Rarlton, J., found that defendants 
discharged pollutants into reservoir and river 
without permit in violation of Act. Defen 
dants appealed. The Court of Appeals, Pre- 
gerson, Circuit Judge, held that dam used to 
collect acid mine drainage from abandoned 
mine site was subject to Clean Water Act s 
permit requirements. 

Affirmed. 

Fernandez, Circuit Judge, filed a concur 
ring opinion. 



1. Health and Environment e=25.7(13.1) 

To establish violation of Clean Water 
Act s National Pollutant Discharge Elimina 
tion System (NPDES) requirements, plaintiff 
must prove that defendants discharged, i.e., 
added a pollutant to navigable waters, from a 
point source. Water Pollution Control Act 
Amendments of 1972, 301(a), 33 U.S.CA 
5 131 l(a). 

2. Health and Environment =25.7(13.1) 

Dam used to collect acid mine drainage 
from abandoned mine site was subject to 
Clean Water Act s National Pollutant Dis 
charge Elimination System (NPDES) permit 
requirement; admission that drainage was 
collected in dam reservoir and, from time to 
time, passed over spillway or through a valve 
into river and another reservoir conclusively 
established discharge of pollutant from mine 
facility within meaning of Act Federal Wa 
ter Pollution Control Amendments of 1972, 
301(a), 83 UJS.CA S i811(a). 

t i 

3. Federal Civil Procedure =2-(81 

Factual issue raised by owners and op 
erators of abandoned mine facility concern 
ing historical level of pollution compared to 
current level of pollution emanating from 
facility wan not material to resolution of 
Clean Water Act claim that owners and oper 
ators were discharging pollutants into reser 
voir and river without National Pollutant 
Discharge Elimination System (NPDES) 
permit in violation of Clean Water Act and, 
therefore, any question as to that issue did 
not preclude summary judgment on issue of 
liability. Federal Water Pollution Control 



306 



284 
13 FEDERAL REPORTER, 3d SERIES 



Act Amendments of 1972, 301(a), 402(a), 
33 U.S.CA 1311(a), 1342(a). 

4. Health and Environment e=25.7(23) 

. . i Municipal .utility district and regional 
water quality control board could be held 
liable under. Clean Water Act given the ab 
sence of any statutory authority to exempt 
board or district from liability under the Act. 
Federal Water Pollution Control Act Amend 
ments . of 1972, 101-517, 33 U.S.CA 
1251-1376. 

5. Federal Courts =272 

Eleventh Amendment did not bar pro 
spective equitable relief which environmental 

i group sought in Clean Water Act action 
brought against municipal utility district and 

regional water quality ; control board. 
U.&CA Const-Amend. .11; Federal Water 
Pollution Control Act Amendments of 1972, 
101-617, 33 U.S.CJL 1251-1376. 



Edward Berlin, Swidler & Berlin, Wash 
ington; DC, for defendant-appellant East Bay 
)( Mun. ^Utility. Dist. 

>t Sara J. Drake, Deputy Atty. Gen., Atty. 
General s Office, Sacramento, CA, for defen 
dant-appellant California Water Quality Con 
trol Bd. Members,,. Central Valley Region. 

" ! Adria Y. LkRose, William S. CurUss, Sier- 
ra Cflub Legal Defense Fund, Inc., Maria 
Savasta iKerinedy, Michael W. Bien, Rosen, 
Bien &^Asaro, SaJh Frariciaco, CA, for plain- 
- ffif-appellee. " 

;". ! . .-. -,-., . ,. . . .,. -, . 

Appeal from; the.. United States District 
Court for the Eastern District of California. 

V i . 

, .Before: , REAVLEY," PREGERSON, and 
.FERNANDEZ, Circuit, Judges. 

. ; . PREGERSON, Circuit Judge: 

: . The East Bay Municipal , Utility District 

and the members of the California Regional 

Water Quality Control Board, Central Valley 

Region, defendants below, appeal the district 

iicpurtifl .order .granting partial summary judg- 

.|ment;in favor/ of. the* Committee to Save the 

ht HonTThomas M. Reavky, United State* 1 Circuit 
6f Aftxlab for the Fifth Cir- 



Mokelumne River. The district court, in a 
well-written, well-reasoned opinion, found 
that defendants owned and operated the 
Penn Mine facility, and that the facility dis 
charged pollutants into the Camanche Reser 
voir and Mokelumne River without a permit, 
in violation of the Clean Water Act, 33 U.S.C. 
1251-1376. On appeal, defendants con 
tend that (1) Mine Run Dam, part of the 
Penn Mine facility, is not subject to the 
discharge permit requirements of the Clean 
Water Act; (2) the Water Board is immune 
from liability under the Act; and (3) sum 
mary judgment was improper because a tri 
able issue of material fact exists whether 
there has been an "addition of pollutants" 
within the meaning of the Clean Water Act. 

We have jurisdiction under 28 U.S.C. 
1292(b). We affirm. 

BACKGROUND 

The Penn Mine property is the site of an 
abandoned copper and zinc mine that operat 
ed intermittently from the 1860s through the 
1950s. The companies that mined the site 
left behind reactive mine tailings, waste rock, 
and excavated ores. When exposed to oxy 
gen and water, these materials .form "acid 
mine drainage," which contains high concen 
trations of aluminum, cadmium, copper, zinc, 
iron, and sulfuric acid. Unless impeded, rain 
water falling on the site carries this acid 
mine drainage downhill, in the form 1 of sur 
face runoff, irito the Mokelumne River. 

In the 1960s, the East Bay Municipal Utili 
ty District (the "District") acquired a portion 
of the Penn Mine property to build the Cam 
anche Reservoir. The District owns water 
rights on the Mokelumne and supplies water 
to towns and cities east of San Francisco. In 
1978, the District, joined by the California 
Regional Water Quality Control Board, Cen 
tral Valley Region (the "Board"), constructed 
the Penn Mine Facility (the "facility") In an 
attempt to reduce the threat of continued 
toxic runoff from the site. The facility con 
sists of Mine Run Dam and the Mine Run 
Dam Reservoir, surface impoundment, along 

( I > . }! 

ciilt, sitting by designation. 



285 



COMMITTEE TO SAVE MOKELUMNE RIVER v. EAST BAY UTIL. 3Q7 

ClleulJ FJd 305 (9lhClr. 1991) 

Act prohibits the "discharge of any pollutant" 
into navigable waters from any "point 
source" without a permit See 33 U.S.C. 
S 131 l(a) (except as otherwise provided in 
the Act, the discharge of any pollutant by 
any person shall by unlawful); $ 1342(a) (au 
thorizes EPA Administrator to permit some 
discharges of pollutants under a National 
Pollutant Discharge Elimination System 
("NPDES")); 1362(12) (defines "discharge 
of a pollutant" as "any addition of any pollu 
tant to navigable waters from any point 
source"). 

The Committee to Save the Mokelumne 
River (the "Committee") initiated this suit 
against the District and members of the 
Board under the citizen suit provisions of the 
Act 33 U.S.C. 1365. The Committee seeks 
a judgment declaring that defendants have 
discharged pollutants from the Penn Mine 
facility without a permit in violation of the 
Vater Act and enjoining defendants 
discharging pollutants from the facility 
until they have obtained an NPDES permit 
to do so. The Committee also seeks ah order 
requiring defendants to devise a remedial 
plan to remove and dispose of contaminated 
sediment in the reservoir. 

Defendants moved to dismiss this action on 
a number of procedural and substantive 
grounds. At the same time, the Committee 
moved for summary judgment on the issue of 
defendants liability under the Act The dis 
trict court denied defendants motion and 
granted judgment in favor of the Committee 
on the issue of liability. 

On appeal from the district court s order of 
summary judgment in favor of the Commit 
tee, defendants raise four issues. They con 
tend that the district court erred in granting 
partial summary judgment in favor of the 
Committee because (1) Mine Run Dam is not 
subject to the discharge permit requirements 
of the Clean Water Act; (2) a material issue 
of fact exists as to whether defendants have 
"discharged a pollutant", within the meaning 
of the Act; (8) defendants activities in con 
structing and operating the facility are regu 
latory, and therefore cannot constitute "addi 
tions of pollutants" under the Act; (4) the 
Eleventh Amendment immunizes defendants 



^series of other impoundments; drain- 
itches, pipes, valves, culverts, and chan- 
Mine Run Dam and most of the 
pRun Dam Reservoir are located on 
owned by the District A small 
on of the Mine Run Dam Reservoir ex- 
dsionto property owned by a defunct min- 
company. 

^ facility was designed to capture con- 
ifed surface water flowing through the 
i find to contain and evaporate the water 
lughia ponding and recirculation system, 
llgreventing the contamination from reaching 
reservoir and river below. Each of the 
"drainages once occupied by Hinkley Run 
Mitie Run creeks, which formerly flowed 
ugh the site, now contains a cascade of 
^impoundments. Water contaminated 
ith toxic pollutants runs off the mine site 
T collects in the upper impoundments and 
fen flows to the lower impoundments, even- 
." tuaily collecting in the Mine Run Dam Reser- 
voirV A pump and pipe owned by the Board 
fireSrculales polluted water from Mine Run 
*-panf Reservoir back into the upper impound- 
^melfts located in the former Mine Run Creek 
f 3ra!nage""basin. Defendants operate that 
,, v 9ufnp . v : ! 

I -^ Tne : facility also consists of two principal 
jttverBio n^ ditches that divert the surface 
^flows of ttinkley Run and Mine Run creeks 
around the abandoned niine site. Those di 
version ditches are intended to isolate the 
jf ability :i from. .the unpolluted flows of these 
fj ttra \creekB, .by. diverting the streams around 
v&e^adjity and directly into the Mokelumne 
T Riyer,an^,,Canianche, Reservoir, below. 

^/As/part of the facility s ongoing operation, 
ivarMis pipes, channels, and gullies carry pol- 

luted, runoff from the mine tailings and dikes 

.iiitjpHe Mine Run Dam Reservoir and other 
nfamty. impoundments. In addition, from 

timelto time, water and drainage collected in 
the Mine Run Dam Reservoir have passed 
through the dam s die- 
valve into the Mokelumne River and 
<a;ii 
uche 



,6,. ean \Yater Act (the "Act"), 33 
U.S.d 1.^1-1876, is intended to "restore 
{ and : niaintain the .chemical, physical, and bio- 
integrity^of the Nation s waters." 33 
. 1 1261 (a): In pursuit of this goal, the 



I 

it 



308 



286 
13 FEDERAL REPORTER, 3d SERIES 



from liability under the Clean Water Act 
We address each of these arguments in turn. 

. - DISCUSSION 

A. 7s Mine Run Dam subject to the Clean 
Water Ad s perihit requireinentsf 

. [1, 2] to establish a violation of the Act s 
NPDES requirements, a plaintiff must prove 
that defendants ,(1) discharged, Le., added (2) 
a pollutant (3) to navigable waters (4) from 
(5) a point source. National Wildlife Feder 
ation v. Gorsuch, 693 F.2d 156, 166 (D.C.Cir. 
1982). Defendants concede that acid mine 
drainage is a "pollutant," that the Mokel- 
umne River is among the covered "navigable 
waters," and that the spillway and valve of 
the Mine Run Dam and Reservoir are "point 
stturces" from which polluted water has en 
tered the Mokelumne River. They contest 
only tHe 1 issiie whether they have "added" 
pollutants to the Mokelumne. 

,; . ! ;(. . 

Defendants argue that under well-estab 
lished c-ase law, the Mine Run Dam is not 
subject to the Clean Water Act s permit re 
quirements because it is a dam that "does no 
more than impound navigable waters and 
impede their flow in the Mokelumne River." 
In support of this contention, defendants rely 
on two decisions that held that the specific 
dams at Issue in those cases were not subject 
to 1 the; discharge permit requirements be 
cause 1 they did not "discharge pollutants," 
Le., add pollutants from the outside world 
: to" navigable water. >See National Wildlife 
Federation v. Consumers Power Co., 862 
F.2d 580, 684 (6th Cir.1988); Gorsuch, 693 
F.2d at 174-76. These cases are inapposite 

f I * >* J 1 : .i I i* -| . 

here .because the Penn Mine facility does 
"discharge pollutants" as that term is defined 

by the Act and relevant regulations. 

.,.;iln bothjiCojwttwwr?. Rower Co. and Gor- 
: <mc/i, plaintiffs sought, to compel dam opera 
tors to comply with, .the discharge permit 
requirements of the Clean Water Act In 

1. The court \n Gorsuch noted that the pipes and 

spillways of dams are "point sources" under the 

i.. Act, and therefore, subject to the Act s discharge 

permit requirements:. , ..... 

The pipes or spillways through which water 

"flows from the reservoir through the darn Into 

the downstream river clearly tall within [the] 

-;: definition, [of-a- "point source !, and the EPA 



Gorsuch, plaintiffs argued that dam-induced 
water quality changes caused by the im 
poundment and release of water were a "dis 
charge of pollutants" within the meaning of 
the Act 1 693 F.2d at 161. Plaintiffs in Con 
sumers Poiver Co. argued that the destruc 
tion of squatic life by a dam s turbines and 
the release downstream of the remains were 
a "discharge of pollutants" within the mean- 
ing.of Act. In both cases, the court held that 
the dams at issue did not "discharge a pollu 
tant" because the dams did not add pollu 
tants "from the outside world." Consumers 
Power Co., 862 F.2d at 584; Gorsuch, 693 
F.2d at 174-76. Neither case categorically 
exempts all dams from the discharge permit 
requirements of the Clean Water Act 

. This case clearly is distinguishable from 
Gorsuch and Consumers Pmver Co. because 
the Penn Mine facility does not pass pollution 
from one body of navigable water into anoth 
er. Rather, the source of pollution added to 
the Mokelumne River is "surface runoff that 
is collected or channelled by" defendants 
from the abandoned mine site. Such surface 
runoff is expressly listed under the definition 
of "discharge of a pollutant" contained in the 
regulations. See 40 C.F.R. 122.2 ("Dis 
charge of a pollutant means . . . additions of 
pollutants into waters of the United States 
from: surface runoff which is collected or 
channelled by man"). 

In this case, defendants have admitted that 
acid mine drainage from the abandoned mine 
site is channelled into the Penn Mine facility 
and collects in the Mine Run Dam Reservoir. 
District Answer 11 18, 24; Board Answer 
11 18, 22. Defendants also admit that "water 
and drainage collected in Mine Run Dam 
Reservoir had, from time to time, passed 
over the spillway or through the valve into 
the Mokelumne River and Camanche Reser 
voir." District Answer 1 21. See also Board 
Answer 11 18, 21, 22. These admissions, in 

has required NPDES permits for the discharge 
of grease, oil, or trash through the outlet works 
of a dam. 

Corauc/i, 693 F.2d at 165 n. 22. 

2. "Discharge of a pollutant" is defined as "any 
addition of any pollutant to navigable waters 
from any point source." 33 U.S.C. 1362(12). 



287 
COMMITTEE TO SAVE MOKELUMNE RIVER T. EAST BAY UTIL. 309 

Clleu 13 FJd 303 (9lh Clr. 1993) 

point source (i.e., the dam s spillway and 
valve); (4) without a discharge permit See 
Gorsuch, 693 F.2d at 165. Because the stat 
ute does not require the Committee to show 
that a greater level of pollution enters the 
Mokelumne now than was the case before the 
Penn Mine facility was constructed, the dis 
trict court properly granted judgment in the 
Committee s favor on the issue of liability. 




turh, ;; conclusively establish that defendants 
Evdischarge a pollutant" from the Penn Mine 
.within the meaning of the Clean Wa- 
BJMJT-, r-ifT making them subject to the Act s 
; ; pemli requirements. 

gBjt Have defendants raised a genuine issue 
R of material fact so as to preclude sum- 
y judgment for the Committee? 

[3] Defendants also argue that a material 
- issue of fact exists as to whether there is an 

- 7)^ /-C* e \L i r[ i 

"daditioh of pollutants," making iiriproper the 
. mstrict cburt g grant of summary judgment. 
^Specifically, defendants rely on evidence that 
ffie*acidity of water flowing into the Mokel- 
Imne River through the Penn Mine facility is 
not greater now than it was before the dam 
was constructed. In effect, defendants con 
tend that they are liable under the Clean 
$ater "Act only if the facility produces a net 
se.ui the acidity of the surface runoff 
I to the acidity of the runoff before 
;; facility was constructed. 

-.This argument misapprehends the focus of 
the Clean Water Act The Act does not 
impose, liability only. where a point source 
. discharge creates a net increase in the level 
of ; pollution. , , Rather, the Act categorically 
prohibits any discharge of a pollutant from a 
point source without a permit 33 U.S.C. 
1311(a), 1342(a); Consumers Power Co., 
862 F.2d at 682.. Thus, the factual issue 
raised by defendants concerning the histori 
cal level of pollution compared to the current 
level of pollution is not material to the resolu 
tion, of tihe Gohifhittee s claim, and therefore 
does not preclude summary judgment on the 
issue of ^liability. .. , 

. Defendants , have already admitted that 
acid mine, drainage is channelled into and 
collects in the Penn Mine facility, and then is 
released over the Mine Run Dam s spillway 
or through its valve into the Camanche Res 
ervoir and the Molcelurhne River. Conse 
quently, they, have admitted to each of the 
elements needed to establish liability under 
the Clean Water Act Defendants have (1) 
discharged a pollutant (i.e., collected and 
chiiinelea- 1 surface : runoff containing acid 
rai^ clralhage into the reservoir and then 
added the polluted cunoff); .(2) into navigable 
waters (i.e., the Mokelumne); (3) from a 



C. .Are actions taken by regulatory authori 
ty to prevent or reduce discharges sub 
ject to the Clean Water Act s permit 
requirements? 

[4] Defendants also argue that "the State 
cannot be held liable [under the Clean Water 
Act) for the activities which it has performed 
pursuant to its regulatory responsibilities." 
Although they concede that no case has so 
held, they contend that analogous cases un 
der the Comprehensive Environmental Re 
sponse, Compensation and Liability Act 
("CERCLA") do lend supports their argu 
ment i 

As the district cqilrt pointed out, in the 
cases cited by defendants, the absence of 
governmental liability under CERCLA rests 
squarely on express statutory exemptions. 
See Order at 84-85 & n. 32 (citing 42 U.S.C. 
9607(aXD & (2), and 42 U.S.C. 9601). 
The Clean Water Act contains no such ex 
emption. Given the absence of any statutory 
authority to exempt the Board or District 
from liability under the Clean Water Act; the 
district court did not err in finding that 
defendants are liable Under the Act 

D. Does the Eleventh Amendment immun 
ize the Water Board from liability un 
der the Clean Water Act? 

[5J The Water Board argues that "the 
District Court could not consider the con 
struction that took place prior to the filing of 
the lawsuit because of Eleventh Amendment 
considerations." However, the Committee 
seeks only prospective equitable relief, which 
is not barred by the Eleventh Amendment 
See Pennhurst State School & Hasp. v. Hald- 
erman, 466 U.SJ ,89, 104-05, 104 S.Ct 900, 
910, 79 L.Ed.2d 67 (1984) (citing Ex Parte 
Young, 209 US. 123, 166-66. 28 S.Ct 441, 
462, 62 L.Ed. 714 (1908)). Furthermore, 



310 



288 
13 FEDERAL REPORTER, 3d SERIES 



none of the authorities cited by defendants 
prohibit the district court from considering 
defendants past conduct as it relates to on 
going or future violations. Thus, defendants 
Eleventh Amendment argument is without 
merit. 

.! CONCLUSION 

. We conclude that the district court proper 
ly granted summary judgment in favor of the 
Committee on the issue of defendants liabili 
ty under the Clean Water Act. 

AFFIRMED. 

.FERNANDEZ, Circuit Judge, concurring: 

I concur, but write separately because my 
position rnay be somewhat more narrowly 
based than the position of the majority. 

As I understand it, the pollutants in ques 
tion used to be carried into the Mokelumne 
River by Mine Run Creek and Hinkley Run 
Creek. The watef from those creeks, and 
other water, ran across 1 the tailings from the 
mines and became polluted. The creeks then 
carried that water, to the river. The project 
has diverted those .creeks so that they will 
stay. clean and has captured polluted run.off 
so that it can be released in a more measured 
way. In other words, it seems that unregu 
lated quantities of pollutants were flowing 
into the river and causing fish kills and the 
like long before EBMUD and the Board did 
anything ,at all. ; Those entities sought to 
eliminate the disasters caused by that unreg 
ulated flow and that is why the project was 
built The result has, been a significant im 
provement in the river s environment and a 
boon to aquatic life. 

The majority appears to agree with appel 
lee s position that the project is a point 
source in the sense that the Environmental 
^r o^ection Agency could not determine that a 
^fPDES permit was not required. I, am not 
spj. jure. It seems to me that, given: the 
history of this, project, the EPA could prop 
erty have determined that this really is much 
more like the dams it dealt with in National 
Wildlife Fed n v. Consumers Power Co., 862 
FJ2d 580 (6th Cir.1988), and National Wild- 
life Eed n u.Gorsuc^.693 F.2d 156 (D.C.Cir. 

1. One CouJd even consider whether primary jur- 
isdiction principles should .bc~applied. See Unit- 



1982), than it is like the typical point source 
that truly does add pollution to navigable 
waters. See 33 U.S.C. 1362(12). If it had, 
we would have shown that determination 
great deference. 1 See Consumers Power, 
862 F.2d at 584-85. It did not. In fact, the 
information before the district court and be 
fore us indicates that the EPA considers the 
project to be a point source, which does 
require a permit containing numerous oner 
ous conditions. 

Appellants earnestly argue that the EPA s 
approach, and that of the appellee s, will not 
serve the long-term purpose of bettering the 
aquatic environment. They indicate that it 
takes no genius or epopt to see what the 
message will be. Do nothing! Let someone 
else take on the responsibility. Let the wa 
ter degrade, let the fish die, but protect your 
pocketbook from vast and unnecessary ex 
penditures. Do not try to bring some order 
out of environmental chaos. In short, appel 
lants suggest that no Odysseus or Daedalus 
crafted the policy which we are now asked to 
follow. Perhaps they are correct; I suspect 
they are. 

Nevertheless, we are not policymakers. 
We must simply apply the law. The majority 
opinion demonstrates that with great clarity. 

Therefore, I concur. 




Steven SPAIN, Plaintiff-Appellant, 
v. 

AETNA LIFE INSURANCE COMPANY; 
Trans World Airlines Employees Bene 
fits Plan, Defendants-Appellees. 

No. 92-55547. 

United States Court of Appeals, 
Ninth Circuit. 

Argued and Submitted Oct. 7, 1993. 
Decided Dec. 30, 1993. 

ERISA plan beneficiary brought action 
against plan and plan administrator, alleging 

ed Slates v. Central Dynamics Corp., 828 F.2d 
1356, 1362-66 (9th Cir.1987). 



289 APPENDIX B 



Add Water Code Section 10001. 4 i 

The East Bay Municipal utility District way exercise rights 

."*; 

under its contract for a water supply from the Auburn-Folsom .. 
South Unit of the Federal Central Valley Project only to the 
extent that the delivery of that water supply will not cause 
flows in the American River from Nimbus Dam to the confluence of 

/ 

the American and Sacramento Riverjto be diminished below the 
minimum standards established by the State Water Resources 
Control Board in D1400 to protect beneficial uses or such future 
minimum standards for the Lower American River SB may be 
established by the State Board in accordance with Division 2 of 
the Water Code. 







290 APPENDIX C 



AMENDED IN SENATE APRIL 14, 1986 
SENATE BELL No. 2458 



Introduced by Senator Leroy Greene 
(Coauthors: Assembly Members Connelly and Isenberg) 



February 21, 1986 



An act to add Section 10001.7 to the Water Code, relating 
to water resources: 

LEGISLATIVE COUNSEL S DIGEST 

SB 2458, as amended, L. Greene. Water facilities. 

Under existing law, the approval of the State Water 
Resources Control Board is required for any change in the 
point of diversion of appropriated water. 

This bill would prohibit the construction by any public or 
private entity of water facilities within or upstream of the 
Sacramento-San Joaquin Delta in order to transport high 
quality SacramoHfee River, American River j or Mokelumne 
River water through the delta in an isolated facility where this 
high quality water would otherwise improve the quality of 
water downstream of the intake or in the delta unless the 
entity fully mitigates any adverse water quality effects upon 
any other water supplier which supplies water for drinking 
purposes to at least 100,000 people, as specified. 

Vote: majority. Appropriation: no. Fiscal committee: yes 
no. State-mandated local program: no. 

The people of the State of California do enact as follows: 

1 SECTION 1. Section 10001.7 is added to the Water 

2 Code, to read: 

3 10001.7. No public or private entity shall construct 

4 water facilities within or upstream of the Sacramento-San 

5 Joaquin Delta in order to transport high quality 



96 60 



291 



SB 2458 . 2 

1 Sacramento fever? American River 7 or Mokelumne River 

2 water through the delta in an isolated facility where this 

3 high quality water would otherwise improve the quality 

4 of water downstream of the(intalc or in the delta, or both, 

5 unless the entity fully mitigates any adverse water quality 

6 effects upon any other water supplier that supplies water 

7 which is used for drinking purposes by at least 100,000 

8 people and which ob tains or receives water from the 

9 delta or from a water source downstream from the intake 
10 of the isolated facility. 







98 60 



292 APPENDIX D 



DRAMATIC CHANGES IN WATER RIGHTS LAW 

OVER THE PAST COUPLE OF DECADES -- A 

STATEWIDE PERSPECTIVE 

OR 
"The Family Jewels are made of Paste" 



Comments by Robert B. Maddaw, General Counsel of East 
Bay Municipal Utility District, at the June 20, 1991 meeting 
of the Water Law Section of the Bar Association of San 
Francisco 

Soon after I went to work for EBMUD in 1972, my 
boss Jack Reilley gave me a huge black binder 
crammed full of documents. He said something like 
"here is your copy of the family jewels ." I soon 
learned that he was talking about the District s water 
rights, and that our most important task was to protect 
them. In the years since then, that book has grown to 
two immense volumes, and literally millions of dollars 
and years of effort have been spent in the defense of 
the District s rights. Yet it is absolutely clear that 
those rights are far less secure now than ever before. 

A couple of months ago, I spoke to Jack and to his 
predecessor, Hal Raines. After I described the 
changing nature of EBMUD s water rights and told 
the story about Jack giving me my book, Hal said "I 
think the family jewels are made of paste." 



293 



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THE SHIFT FROM PROPERTY RIGHTS TO 
GOVERNMENTAL REGULATION 


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Similar comments can be made about Fish & Game 
Code Section 5937 and 5946. The litigation 
concerning the eastern Sierra operations of the Los 
Angeles Department of Water and Power is 
instructive. The Court of Appeal has held that under 
the facts and relevant law, instream flows have an 
absolute priority to the water of the streams from 
which Los Angeles have an absolute priority to the 
water for municipal and industrial use. There are 
other instances in which civil litigation has been 
threatened or initiated under this system of statutes. 
There is even one instance in which a criminal 


prosecution was initiated (unsuccessfully) against a 
water rights holder under this body of law. A few 




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licensee/permittee holds any money made by selling 
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small citizens group. 


Under another statutory system, there has been 
assertions that when the Department of Fish & Game 


conducts certain types of streamflow studies and files 
the results with the SWRCB, the burden of proof 


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Department are necessary for protection of fish 
resources. Such a shift would be a departure from the 
traditional protection afforded to vested water rights. 



299 



INDEX- -Robert B. Kaddow 



affirmative action. See East Bay 

Municipal Utitlity District, 

diversity 
Ahmed, Rarim, 212 
AIDS policy, 45-47 
Albin, Doug, 177-178 
Allen, Russ, 37 
American River contract /litigation, 

59-60, 68, 77-78, 82-83, 87, 

101, 105, 146-219 passim, 232, 

245, 277 

Anderson, Dick, 169-170 
Anton, Walt, 108-110, 119, 121, 244, 

250 
Association of California Water 

Agencies (ACWA) , 61, 63-65, 68- 

69, 72, 74 

Auburn Dam, 147, 149-151, 179, 185 
Audobon v. Superior Court, 193, 201- 

202, 204, 207-208 
Ayala, Ruben, 184, 262-263 



Bailey, Thomas, 24 
Ballachey, Michael, 193 
Bancroft, Richard, 172-174, 192, 

201-202 

Banks, Harvey 0., 148 
Bay Conservation and Development 

Commission (BCDC) , 78, 153 
Behrens, Russ, 70 
Best, Best & Krieger, 69, 146, 167, 

190, 194, 218 
Biddle, Dick, 96 
Bird, Rose, 161 

Bishop, Wally, 251, 259-260, 274 
Boeri, Steve, 140 
Bold, Fred, 278 
Bonner, Al, 122-123 
Brazil, Wayne, 95 
Briones Dam, 126, 221 
Bromley, Verna, 134 
Broussard, Allen , 201-202, 204 
Brown Act, 76-77 



Brown, Edmund G., Jr., 65, 69, 175, 

214 

Brunn, George, 156-159, 200 
Brydon, Charles, 133-134 
Brydon v. East Bay Municipal Utility 

District, 133-134 
Building Industry Association of 

Northern California, 134 
Bunzel, John, 35 
Burdick, Chris, 93 
Burke, Helen, 77-80, 118, 130, 169, 

216, 273-274 
Burns -Porter Water Bonds Act of 

1960, 262 



Cal-Fed process, 265 

California Environmental Quality Act 

(CEQA), 58-64, 67-70, 72 
California Municipal Utilities 

Association (CMUA) , 61 
California State Department of 

Health Services, 211 
California State Department of Fish 

and Game, 175-176, 196-197, 

199, 213-214, 242-246 
California State Department of Water 

Resources, 118-120, 153, 175, 

187, 263; California Water 

Commission, 261-262 
California State Lands Commission, 

176, 214-215 
California State Legislature, 

relationships with, 60-61, 73- 

74 
California Supreme Court, 58-60, 

158-159, 161-163, 165, 167-168, 

178, 201-202, 207 
California Toxic Pits Control Act, 

252 

California v. United States, 160-161 
Call, Harrison, 132 
Calonne, Ariel, 174 



300 



Camanche Reservoir, 82, 100, 126, 

222, 228-235, 238-239, 241-243, 
245-246, 267, 269-270, 276 

Cape, John, 119 

Carrasco, Jorge, 277-279 

Carrington, A. C. (Bert), 84-85 

Carter, Mack, 55-56 

Central Valley Project Improvement 
Act, 107 

Central Valley Project, 102, 147, 
149, 183 

Chabot Dam/Lake, 145, 223-225 

Chevron, 128-129 

Civil Rights Act, 35 

Civil Rights movement, 22-23 

Clark, Charlie, 139 

Clark, William, 162 

Clean Water Act, 247-249, 251, 255, 
258 

Clinton, William Jefferson, 
administration of, 98-99 

Cohen, Andy, 191, 255, 273-274 

Committee to Save tfokelumne Rver v. 
East Bay MUD, 247-253 

Comprehensive Environemntal 

Response, Compensation and 
Liability Act (CERCLA), 240 

Compton, Buck, 41 

concurrent jurisdiction doctrine, 
193, 201-207 

conflict of interest issues, 65-66, 
70-72 

Contra Costa Water District, 102- 
103, 105, 118-119, 210-211, 
226, 246; facilities reserve 
charge, 134; Los Vaqueros 
Reservoir, 226 

Craig, Gordon, 24 

Crooks, Bill, 245 



Dawson, Artis, 96-99 
DeCuir, Dennis, 172, 174, 215 
Dedrick, Claire, 214 
Delta Keeper, 251-252 
Dermody, Terry, 139, 141 
Dettman, David, 195 
Diemer, Dennis, 260, 274, 277 
Dito, Ed, 177-178 



Eaneman, Bob, 108-109, 114 

East Bay Municipal Utitlity District 
(EBMUD), Board of Directors, 
57, 75-89, 93-94, 97, 109-112, 
117-118, 144-146, 168-169, 171, 
176, 191, 216-219, 254-256, 
261-262, 267-269, 271-279; bond 
issues, 126; diversity, 79-80, 
88-99; legal office, 24, 53-271 
passim; professionalism of 
staff, 235-237; recreational 
facilities, 222-231 

East Bay Regional Park District, 
223-224, 230-231 

East Side Project Association, 149- 
150 

Edwards, Lucretia, 153 

Elam, Lee, 155, 165, 174, 215 

Engstrand, Paul, 167 

Environmental Defense Fund, 68, 78- 
79, 128, 132, 147, 152-161 
passim, 212, 215, 263. See also 
American River contract 

EDF, Inc. v. EBMUD, 153-182, 189-201 

environmental law, 58-64, 67-68, 74- 
75, 78, 154 

Environmental Protection Agency, 
247-229, 251, 253-256 

Erving, Frank, 92-95 



Fair Political Practices Commission, 

65, 67-72, 207 
Federal Energy Regulatory 

Commission, 124-125, 229-230, 

275 
Federal Power Act and Commission, 

124-125, 229 
Federal Water Pollution Control Act, 

257-258 

Fernandez, Judge, 249-250, 256 
fish habitat, protection of, 124- 

125, 150-151, 166, 170, 176, 

190, 195-200, 208-210, 218, 

222-223, 241-245, 249-251 
Folsom South Canal, 60, 101, 147- 

149, 151-152, 154-155, 173, 

179-180, 186, 199-200, 232 
Franz, Rod, 61, 69, 73-74 



301 



Fraser, John, 69 

Friends of Mammoth v. Board of 

Supervisors of Mono County, 58- 

60, 68 



Ganulin, Jim, 70 

Gardner, John, 45 

Garner, Eric, 190, 209 

Gilbert, Jerome, 83, 91, 94, 96-98, 

163-164, 170-171, 185-186, 251, 

272-273, 277 
Goggin, Walt, 122-123 
Governor s Commission to Revise 

California Water Law, 167, 206 
Graff, Thomas, 78-79, 165, 172, 174- 

175, 215 

Greene, Leroy, 183-185 
Gregg, John, 119 
Gutting, Dick, 79 



Hackenbracht , Mary, 214 

Hagar, Jeff, 270 

Hahn, John, 138-139, 141-142 

Haight, Lois, 33 

Hanson, Chuck, 218 

Harder, Orrin, 119, 235 

Harnett, Jack, 73, 75, 83, 91, 163 

Harris, Bob, 195, 212 

Hastings, Chick, 33-34, 37 

Helwick, Bob, 68, 133, 144-146, 158- 

159, 161-164, 166-167, 169, 

190, 196, 198, 216-217, 225, 

233, 277, 279 
Herrington, John, 33 
Hill, Jack, 169, 262-263 
Hipp, Earl, 82 
Hitchcock, Ted, 118 
Hodge, Richard, 193-198, 201-205, 

210-211, 218 
Holmes, Dallas, 69, 167 
Horton, Larry, 22, 30 
Howard, Frank, 57, 76, 90, 95-96, 

120, 131, 145-146, 156, 166, 

257 

Huberty, George, 139 
Huberty, Joe, 139 



Imperial Irrigation District, 167 
Irrigation District Association. See 

Association of California Water 

Agencies 
Isenberg, Phillip, 183-186 



Jackson, Mike, 234 
Jacobs, Joe, 31-33 
Jennings, Bill, 234, 246, 250-251, 

253 

Jensen, Lowell, 94, 97 
Johnson, Beverly, 99 
Johnson, Lyndon B., 34-35, 45 
Jones, Bob, 69 
Jordan, Jerry, 69 



Karlton, Lawrence, 247-248, 252, 256 

Keeler, Jack, 138 

Kelley, Carroll, 40-41 

Kelley, Don, 195, 218 

Kennedy, John F. , 34-35 

Kidman, Art, 70 

King, Pete, 31 

Knox, John T. , 60-61, 63, 73 

Kohut, Ron, 169, 174, 190, 194 

Kolm, Rich, 154 

Koupal, Ed and Joyce, 71-72 

Krautkraemer, John, 174-175, 215-216 

Krueger, DeWitt, 118 



Lafayette Reservoir, 223 

land use issues, 62-64, 187, 231 

Lane, Ed, 55-56 

Lauten, John, 70 

Laverty, Gordon, 222 

law school diversity, 25 

lead agency principle, 62-63 

League of California Cities, 67 

Leavy, Betsy, 93, 95-96 

Lee, Cliff, 168 

Lesher, Dean, 114-115 

Lindquist, Paul, 121 

Linville, Thomas, 245-246 



302 



Littleworth, Arthur, 69, 146, 166- 
168, 172, 174, 176, 189-190, 
194, 201-202, 204-205, 209, 
218, 276-277 

Lodi, city of, 136, 233-234, 237 

Lodl v. East Bay Municipal Utility 
District, 178 

Los Angeles Department of Water and 
Power, 133, 140 

Lowenstein, Allard, 22-23 

Lowenstein, Dan, 65, 69 



Macola, Steve, 184 

MacRostie, Wayne, 119 

Maddow, Bernard (father), 1-10, 18- 

20 
Maddow, Cheryl (sister), 2-3, 5-7, 

10, 17, 20, 50 
Maddow, David (son), 21, 41-44, 47- 

48, 51 
Maddow, Elaine Gosse (spouse), 12, 

21, 42-44, 47, 49, 51, 54, 56 
Maddow, Gertrude Smits (mother) , 1- 

2, 4-9, 13, 18-20 
Maddow, Rachel (daughter), 20-21, 

43-48, 87, 278 
Marin Municipal Water District, 103- 

108, 120, 226 

McDonough, Martin, 172, 215 
Mclntosh, Stan, 92-95 
McLean, Walter, 24 
Meral, Gerry, 153 
Metropolitan Water District, 70, 

104, 119, 182, 278 
Minasian, Jack, 70-72 
Mokelumne River project, 82-83, 102, 

106, 123-125, 135-136, 143, 

148, 154, 210, 213, 233-234, 

236, 238-242, 246-253, 269; 

Committee to Save Mokelumne 

River, 246-253 
Montgomery, Gayle, Introduction, 

263-264 

Moses, Bill, 261-263 
Moskovitz, Adolph, 168 
Municipal Utility District Act, 113, 

272 
Murray, Angus Norman, 138, 148 



Myers, Jon, 235-237 



Nadel, Nancy, 169 
Nahas, Bob, 86-87 
National Environmental Policy Act 

(NEPA), 59 
National Pollution Discharge 

Elimination System Permit , 247- 

248 
National Wildlife Federation v. 

Gorsuch, 247-248, 256 
Nordin, Tom, 89 
Northern California Power Agency, 

125 

Nothenberg, Rudy, 71-72 
Novak, Mary, 270 
Nunn, Don, 37-40, 51 



O Neill, Jack, 39, 41 
Oceanic Society, 152-153 
Okun, Daniel, 195, 212 
Oley, Jarlath, 70 
Oliver, Audrey Rice, 98-99 



Pacific Gas and Electric Company, 

123-127 
Pardee Reservoir, 102, 135-136, 221- 

224, 228-229, 238, 241, 246, 

270 

Pardee, George, 213 
Parker, Audrey, 139 
Parsons, Bill, 138 
Patterson, Bruce, 33 
Penn Mine, 234, 238-256 
People s Lobby, 71 
Peripheral Canal, 182-184, 261-265 
Pettit, Walter, 253-254, 256 
Phillips, Bob, 140-141, 143 
Piggott, Patrick, 268 
Plumb, John, 69, 73, 77 
Polisner, Jeff, 278-279 
Political Reform Act of 1974, 64-66, 

71-72, 74-75 
Proposition 13 (1978), 112, 135, 

137, 140-141, 145 
Proposition 218 (1996), 133 



303 



public trust doctrine, 206-209. See 

also water law 
Public Utility Rates and Policies 

Act, 125 



Qvistgaard, Larry,. 108-109 



Raines, Harold, 24, 67, 82, 190 

Rainey, Richard, 133 

Reagan, Ronald, 162, 167, 262 

Regional Water Quality Control 
Board, Central Valley, 238, 
242-246, 249-250 

Reilley, John B., 24, 55-59, 61, 66- 
68, 73-78, 80, 82, 86, 97, 117, 
135, 138, 141-144, 148, 152, 
156, 162-164, 166, 190, 214, 
216, 222, 235, 257, 266 

religious background, 48-51 

Reynolds, Jon Q. , 118 

Robertson, Jim, 245 

Robie, Lynn, 187 

Robie, Ronald, 151-153, 163, 175, 
187 

Robinson, Howard, 85 

Rodriguez, Matt, 214-215 

Rounsaville, Guy, 33 

Russell, Sarah, 214 

Ryan, Nancie McGann, 96, 134, 145- 
146, 166 



Sacramento County, as litigants, 
155-156, 165, 172, 174, 176, 
179-183, 187, 196, 200, 213, 
215-216 

Sacramento River Delta Water 

Association (SRDWA), 149-150 

Safe Drinking Water Act, 195, 212 

San Pablo Reservoir, 105-106, 121, 
145, 221, 223 

Save the American River Association 
(SARA), 152, 165, 172 

Save the Bay Association, 78, 153 

Schneider, Anne Jeffrey, 167-168 

Schwab, Norm, 91 

Seipel, Ed, 16, 26-27 



seismic concerns, 106 
Seraydarian, Harry, 253-255 
sewage disposal. See wastewater 

treatment 

Sharick, Clark, 54-56 
Sierra Club, 77; Legal Defense Fund, 

246, 251-252 
Simmons, Ken, 77-80, 88-90, 97-98, 

118 

Simmons, Paul, 215 
Singer, Rita, 148 
Siri, Jean, 77-78, 153 
Siri, William, 78, 153 
Skaggs, Sandy, 118 
Smiley, Jay, 90-91 
Smith, Jean Love, 91, 94 
Somach, Stuart, 174, 180, 215 
Spragens, Rip, 235, 237 
Stanford University, 17-25, 29-32, 

44-46, 48-49; Stanford Daly, 

31-32 

State Board of Equalization, 137 
State Water Project, 103-104, 264 
State Water Resources Control Board, 

101, 150-152, 158, 160, 163, 

172-179, 191-194, 197, 199-210, 

232-235, 250, 253-254, 267-272, 

275 
Stein, Dick, and the Stein plan, 

232, 234-235, 246 
Stern, Bob, 65, 69 
Stretars, Mark, 177-178 
Swidler & Berlin, 251-252 
Sykes, Richard, 251 



Tarn, Lena, 237 

tax issues, 134-144 

Taylor, Chet, 41-42, 51-52 

Taylor, M. G. Buck, 177-178, 245 

Thayer, Lloyd, 135-136, 138-139, 143 

Thorner, Tom, 108 



United State Supreme Court, 160-161, 
165 



304 



United States Air Force, service in, 

10, 26, 29, 36-42, 50-52, 55; 

Judge Advocate General s Corps, 

37, 40-42, 51, 58 
United States Bureau of Reclamation, 

59, 101, 118-120, 138, 147-152, 

155, 160-161, 174-175, 179, 

199-200, 209-210 
United States Department of 

Commerce, 240, 252 
United States Fish and Wildlife 

Service, 124-125 

United States v. California, 160-161 
United States War Department, 239- 

240 
University of California, Berkeley, 

18-19, 74; Boalt Hall School of 

Law, 24-25 
University of California, Hastings 

College of the Law, 24-29, 33- 

34, 53-54 
Upper San Leandro Reservoir, 221, 

224 



Vendig, Fred, 278 

Vietnam War, 10, 22-23, 25, 32-36; 

draft for, 25-26 
Vilardi, Alice, 144 
Vogel, Dave, 218 



Wallis, Mike, 251, 260 

Warren, Charlie, 214 

wastewater treatment, 257-261, 275 

WATER (Water Allocation Through 
Equitable Rates ), 133-134 

water conservation, 110, 112-113, 
127-128, 182, 188-189 

water law, 67-68, 107, 143, 167-168, 
172, 176, 271, 278-279; 
physical solutions, 178-181, 
192, 197, 200, 205; public 
trust doctrine, 193, 201, 204, 
207-209; reasonable use 
doctrine, 167. See also 
concurrent jurisdiction, 
specific cases 



water pricing and rate structure, 
107-115, 128-134, 145 

water quality, 102-103, 105-1O6, 
119, 148, 160, 166, 181, 183, 
189, 195-197, 199, 209-213, 
218, 221-222, 224, 227, 239- 
241, 245, 264-265, 267-270, 276 

water rationing, 107-116, 231-235 

water reclamation, 152, 157-159, 
182, 185 

water rights, 82, 102-103, 135, 137- 
140, 143, 150-152, 160, 199, 
208-209, 228, 231-237, 275 

water supply and planning, 66-67, 
81-82, 87, 100-126, 148, 275- 
276. See also American River 
contract 

water transfer, 234 

water treatment, 220-221 

Watkins, Professor, 35 

Way, Ted, 277 

Weiss, Janice, 190, 194 

Westcott, Stuart, 30-31 

Westlands Water District, 70 

White, Jeff, 267-268, 270 

Wilkinson, Greg, 190 

Wilier, Dave, 138, 141-142 

Williams, John, 197-199 

Willoughby, Thomas, 60-63 

Witchez, Wayne, 57-58, 146, 156 

Withy, Todd, 92, 94 

Wittschen, Ted, 136 

World War II, 1-2, 4, 9-10, 24, 38, 
74, 82, 239-240, 275 

Wright, Chuck, 118 

Wright, Donald, 168, 206 



Younger, Evelle, 41, 214 



Zars, Peter, 153 



GERMAINE LaBERGE 



B.A. in European History, 1970, Manhattanville College 
Purchase, New York 

M.A. in Education, 1971, Marygrove College 
Detroit, Michigan 

Law Office Study, 1974-1978 

Member, State Bar of California since 1979 (inactive status) 

Elementary School Teacher, Michigan and California, 1971-1975 
Legal research and writing, 1978-1987 



Senior Editor/ Interviewer in the Regional Oral History Office in fields of business, law, 
social issues, government and politics, water resources, and University history, 1987 to 
present. Project Director, East Bay Municipal Utility District Water Rights Project and 
California State Archives Oral History Program.