Whiskey’s for drinking, water rights are for fighting over

August 11, 2021 | By TONY FRANCOIS

 This article is featured in the fall edition of our quarterly magazine Sword&Scales. To read the full edition visit: swordandscales.pacificlegal.org


Drive east out of Portland, Oregon, on Highway 84 for a few hours and most of the trip you’ll be alongside the Columbia River, where some centuries ago, steely men named Lewis and Clark risked life and livelihood to paddle into uncharted territory. Cross through the Blue Mountains and into Baker Valley and you’ll find another steely man, rancher Curtis Martin.

Depending on the day, you’ll likely see Curtis working on irrigation for his cattle or just tending to his land. But other than his ranch work at hand, for years Curtis has been busy with another important task, fighting the government and activists for his right to survive.

What’s it like to be a rancher? “Raw. Rugged. You got to have grit,” Curtis answers. “Ranchers don’t know what ‘weekend’ means. It’s 24-7-365. You’re either taking care of cattle or irrigating.”

He catches himself quickly. Not every day. “We try to take Sundays off and enjoy the day and recognize our Lord.”

He says his own grit came from his father, also a rancher. There was never a question for Curtis whether he was going to carry on the family tradition: “I knew what I wanted to do. I don’t know how to explain it because I don’t have another way of life to gauge it against. Ranchers, you learn at an early age, see a problem and go out and figure it out. There’s no handbook.”

The senior Martin believed the best way to learn how to be a rancher was to do it. To make your mistakes and learn. Sometimes “learning” sounds like a Marx Brothers routine. Curtis recalls how his father taught him to drive a tractor: “He put me on a tractor that had no brakes. He just said, ‘If you need to slow down, find a hill.’ I don’t know how many guardian angels I wore out, but there was a few probably.”

But who can argue with the results? Curtis Martin is great at what he does, and he does it against near-insurmountable odds. More important than grit, though, was that his father instilled in him a passion for conservation and stewardship of the land. But he doesn’t like the word “environmentalism,” even if that’s precisely what he cares about as a rancher: “I refuse to call it environmentalism because they have stolen that terminology from the true stewards of the land, I believe. They call themselves ‘conservation organizations,’ but their heart and true motives aren’t the best for the resources or the rural communities that they are affecting.”

Who’s “they”? Curtis doesn’t list anyone specific, but you’ve likely seen the antics of the extremist environmental groups he’s referring to. Groups like “Extinction Rebellion,” “Earth First!” or the “Earth Liberation Front,” who believe that humans hurt the planet no matter what, and simply shouldn’t be here. Curtis has been forced to deal with activists like these groups since the early ’90s, when he says this extremist philosophy emerged in Portland. They push and push for more regulation of Oregon’s natural resources, pitting ranchers against the government. And ironically, increasing regulations are resulting in worse conditions for the state’s stunning natural resources.

“The old phrase ‘whiskey’s for drinking and water’s for fighting’ really is true,” Curtis says. “It still is today.” And he is a longtime veteran of that fight.

Access to water is critical for any rancher. Doubly so in Curtis’ world. Oregon has a reputation for rain, but he describes Eastern Oregon as “a desert situation all the time.” This has pitted Curtis and his fellow ranchers in a decades-long battle over water rights with the EPA and the state government. It’s a fight that’s only gotten tougher, stemming from regulations that create an absurdly expansive definition of what counts as federally regulated waters.

The EPA claims the authority to dictate how landowners are allowed to use small creeks and streams. These men and women who literally have their hands deep in the soil every day need permission to use it productively.

The Clean Water Act, enacted in 1972 and greatly expanded under the Obama administration, was designed to empower the EPA to protect the nation’s “navigable waters” from industrial facilities, sewage treatment plants, and the like.

What counts as “navigable water” in the EPA’s opinion? In Curtis’ case, it’s a narrow creek that runs through his property that you couldn’t navigate with an inner tube. But the federal government says it’s “navigable water,” which means that nearby soil becomes a “pollutant” the minute you move it.

You can imagine how difficult such sweeping regulatory power can make life for a man who lives off the land.

A few years ago, natural erosion on Curtis’ property was preventing water from the small creek from saturating into the land, leaving much of the land barren. Not much a rancher could do with it. Not much anybody could do with it. So to slow the creek so it could irrigate the land (i.e., make the land healthier), Curtis pushed soil and tree limbs into it, building what is called a “beaver dam analog.” This might sound odd, but it’s a well-established practice to rehabilitate streams in a way that mimics nature.

But the EPA calls it polluting a navigable water. Their rules say Curtis needs a permit…from the Army. The permit itself assumes Curtis is harming the creek rather than helping it. To get the permit, he’d have to spend hundreds of thousands of dollars in consulting reports.

The permit would require him to “mitigate” the “harm” to the creek he’s improving by purchasing government-issued mitigation credits. And if he doesn’t comply or purchase enough credits, he faces prison or millions in fines.

Curtis Martin is helping sue the EPA over its ridiculous regulations for ranchers trying to conserve and improve their own land. PLF is representing him free of charge.

So what’s Curtis’ land like now? “I don’t have words enough.” He gushes, “It is beyond inspiring. Being in touch with the soil like I am, you realize that the human element is really not a pimple on the world’s a**. I know that sounds kind of crude, but it’s just amazing. What little you do, small actions to improve things, and you feel like you’re a part of it, it truly instills the stewardship into your soul of what this is.”

For Curtis, land is something we’ve been given to care for, something that will live much longer than any of us. On that, he, the EPA, and the environmental activists agree. We really do have to act, immediately. Life on this planet is impossible without stewardship of the land, without conservation.

They just disagree on where blame lies. Extreme activists blame farmers and ranchers like Curtis. But Curtis is actually caring for the land, not leading chants in cities like Portland.

He says he’d prefer to collaborate with the government, not be directed by it. He wants to conserve the land because it’s his to care for. And he’s skeptical that top-down decrees from bureaucrats in Salem, Portland, or D.C. can dictate how best to do that.

Curtis’ approach to the water battle has softened over time. In the ’90s, when he first ran into conflict over water rights, his attitude was “You come out here and mess with my water rights, I’ll meet you on the ditch bank with a shovel and there’s going to be some bloodshed.”

He laughs at himself. He used to be much more of a sharp-edged rock. But he says a rock smoothens out over time, as water runs over it.

So now that he’s smoothed out, what would he say to the activists? “My first rule of talking or visiting with anybody is they have to agree that I, as an Eastern Oregon rancher, have a right to exist.”

And what about the people at the EPA?

He wouldn’t say a word. They need to “kick the dirt” and see for themselves what he’s done, what the land is like now. “Instead of being in their little cubicles in an ivory tower, making these policy decisions about natural resources without ever being out there to see them, if they’d come out, I can guarantee you that they will have a change of heart.”

This article is featured in the fall edition of our quarterly magazine Sword&Scales. To read the full edition visit: swordandscales.pacificlegal.org