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 topics—one
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
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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 industry—we
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 ever—we 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 here—like 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 thought—none 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 from—there was a brother and sister teaching team at that
school, Miss Shepherd and Mr. Shepherd, both spinsters, both old,
very old-fashioned—they 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 that—oh, 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 were—if 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 life—she'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 days—sign 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 and—I'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 necessarily—they 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 this—actually,
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 about—these 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 twenty—someone 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 Nunn1 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 was—let's
see, I went to summer school—that 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 that—was 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
18 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
project—as 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 was—at 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 government—cities 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. 8891 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 result—trying 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 cases—the 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 was—things 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 new—sort 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 that—she 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 call—well, 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--
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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
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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.
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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 client—the 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 now—you 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 been—it'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. Betsy—some 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 were—as 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 service—you 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 County—sort 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
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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
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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
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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
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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
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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 change—at 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 board—that'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.
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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 you—staying 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:
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Costa. What the state did was to take—the state provided a new
intake for Contra Costa1 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 :
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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 big—it'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 manholes—two
"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 :
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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
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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."
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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 had—if 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
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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 Act1 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)]
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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
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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.
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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.
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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--
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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.
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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 same—into 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 pumping—it's primarily
related to pumping- -they should be bearing the cost of
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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 that—it'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.
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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.
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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
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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. Thayer1 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.
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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 review—one 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 time—let's just think about that a
second—by 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 constructed—actually, 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 water—at 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.
lSee 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 neighbors—our 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 line—what 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
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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 time—Frank 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.
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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
petition1 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).
1EDF 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 been—let'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 h±s
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--! fm 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 was—I'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).
2See 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 there—he 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,
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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 associate—Greg 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.
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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
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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 decision1 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.
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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.
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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.
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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.
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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.
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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 quote—he 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.
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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 thought—and
I believe it's fair to say even some of the plaintiffs' attorneys
thought—that 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.
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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
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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
lArthur 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 use—this 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. Dan±el
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 & Somach1, 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 transcripts—on 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 all—maybe it's
all by now—of 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 sanita±re. 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
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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
area—it'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.
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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
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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.
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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
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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.
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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 word—to the park district. Then the
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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
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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
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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 water—in 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.
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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
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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
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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
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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.
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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
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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.
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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
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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 buy—that 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 material—there 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 R±ver 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).
2See Appendix.
3693 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 said—let 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 side—the 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.
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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
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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:
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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 people—the 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
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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.
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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 pit—it's like
this linear borrow pit, with separators along the way, so it's a
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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"
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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
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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
JSee Appendix, "Dramatic Changes in Water Rights Law Over the Past
Couple of Decades—A 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
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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 become—or in 1991,
when they took office—they 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
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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 that—in 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 there—they 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)
3»iL 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 form1 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
£f3ra!nage""basin. Defendants operate that
,,v9£ufnp'.''v''' : !
I -^0Tne : 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 :ifrom. .the unpolluted flows of these
fjttra \creekB, .by. diverting the streams around
v&e^adjity and directly into the Mokelumne
TRiyer,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 tHe1 '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
to1 'the; discharge permit requirements be
cause1 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 Act1 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
«;;pe¥mli 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 across1 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
3 1 .S J8 .S Si $
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set of legal principles which embraced both the prior
appropriation doctrine and riparian rights. The peak
of this property-based system was probably the
Herminghaus decision in 1926, which raised serious
questions about whether traditional water rights law
would inhibit development of water resources to
accommodate the evolution that was occurring in
California. In 1928, the Constitution was amended to
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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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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 R±ver 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 Da±ly,
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.
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