Abstract
Institutional change entails institutional design, assessment, and modification, which necessarily take place within the constraints and opportunities afforded by existing institutional arrangements. Viktor Vanberg has made major contributions to our understanding of how institutions evolve. We wish to contribute to this symposium in honor of Vanberg by analyzing how institutions for the management of water institutions in Southern California evolved primarily through the use of the courts as settings for deliberation, learning and institutional change.
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Notes
For instance, see Stake’s (2005) review and synthesis of the long academic debates (for example, Rubin 1977; Priest 1977; DeAlessi and Staaf 1991; Hart 1994; Roe 1996; Rubin et al. 2001) related to whether evolutionary processes occur within common law procedures facilitate the process of civil litigation moving toward more efficient outcomes over time. Stake focuses specifically on decisions in property cases—in contrast to torts—because property cases are more likely to return to the courts for reconsideration. “In other words, there is a feedback loop, a mechanism that returns the output of a system back to the system’s input, that provides courts with opportunities to overturn inefficient common law property rules (Stake 2005, p. 406).
Claims about the neutral, limiting qualities of standing have been drawn into question by other scholars in the meantime; for example Pierce (1999).
Legitimate concerns can be, and have been, raised about letting past use determine future rights with respect to a limited resource. On the other hand, considerations of past use can also protect indigenous and less powerful communities from the depredations of expropriators who want to extract valuable resource yields without any lasting commitment to the communities residing within or adjacent to the resource system.
Judge Leon Yankwich (Chief Judge of the United States District Court for the Southern District of California) presided over United States v. Fallbrook Public Utilities District, 109 F.Supp. 28 (1952). That case, an action to quiet title to water use rights in the Santa Margarita River, involved 6,000 defendants. Clearly the information and negotiation task that lay ahead was daunting. Eight of the largest defendants participated in extensive pre-trial discovery actions, and the judge convened them as well as some other parties to try to resolve a number of questions of fact. Afterward Judge Yankwich wrote a law review article, “Crystallization of Issues by Pretrial: A Judge’s View.” He recalled, “After motions to dismiss were denied and a motion for separate trial as to two of the principal defendants and the State of California, which had intervened, was granted, I held a pretrial conference which extended over four days and resolved a good many matters” (Yankwich 1958, p. 472). Another commentator (Carter 1959, pp. 409–410) recalled in greater detail the strategy the judge employed to drive the fact-finding process forward in that case. The pretrial conference yielded a stipulation of facts concerning the description of the Santa Margarita River watershed, and memoranda formulated and filed by the court governing several of the legal issues for trial. The obvious problem that remained was how to make procedures and agreements that had involved only a small number of the parties applicable to the thousands of others. The stipulating parties and the judge made the agreed facts the “default conditions” that would prevail unless one or more of the other parties could dislodge them. The United States filed an amended complaint on all parties, attached to which was a copy of the pretrial stipulation of undisputed facts as agreed to by the major defendants, and a note that an engineer familiar with the watershed would be prepared to testify and/or submit to cross-examination on the alleged undisputed facts. Any party could cross-examine or present evidence to contradict the alleged facts, but in the absence thereof the court would find the facts to be as stipulated (Carter 1959, p. 410).
Hundley (2001) is the standard reference for much of this history, although there are several other good sources.
In the Los Angeles area hundreds of wells were dug to access the local groundwater supplies. A U.S. Geological Survey completed in 1904 found over 100 wells operating in one basin alone—West Basin, along the coast. The deep-well turbine pump, a new technology introduced in 1909, more easily facilitated groundwater extraction throughout the area.
Imported water was, and still is, essential to Southern California. The stories of these importation projects, and the institutional entrepreneurship associated with them, are well worth telling but would extend this paper considerably. We will focus instead on the development of groundwater management institutions. Besides, the stories of those projects have been told exceptionally well by other authors, on whose accounts we could not improve. Interested readers should consult Ostrom (1953), Kahrl (1982), Hundley (2001), and Libecap (2007).
In addition to West Basin’s saltwater intrusion problem, essentially all freshwater inflow to West Basin enters underground from the next basin inland (Central Basin), which was itself significantly overdrafted by the 1940s and 1950s. West Basin users were therefore trying to restore a sustainable balance of inflows and extractions at a time when inflows were diminishing.
A few large pumpers had wells in both West and Central basins.
In the Raymond and West basin cases (the Central basin judgment being too new in 1968 to provide much information), the initial determination of basin safe yield had proved over time to be slightly erroneous—basin conditions had turned out to be more favorable than originally estimated. With the fixed safe yield entered in the judgment, and each party’s pumping right also determined and fixed, pumpers were not taking full advantage of what the groundwater basin could sustainably offer.
It is intriguing to note that the process of designing the successful “ITQ” system for fisheries in New Zealand was almost stymied by the initial assignment of fixed, quantitative rights to a specific tonnage of fish. When the authorities and the fishers discovered that the calculation of the safe yield could not be sustained over time, they had to enter extremely delicate renegotiations and moved to an assignment of a proportionate right to a safe yield that would fluctuate over time as information about resource conditions could be collected and assessed. See Yandle and Dewees (2003).
The trial court dismissed the adjudication in 1976. A successful effort to adjudicate and limit pumping in the Mojave River Valley took place during the 1990s.
The San Fernando Valley groundwater basin adjudication case has its own interesting story, but it is not considered at length here because the water rights issues in that case were substantially different from the ones in the four San Gabriel River watershed basins or even in the Chino and Mojave cases. Pueblo water rights claims by the City of Los Angeles, and rights to capture the “return flows” of water imported by Los Angeles via its Owens River aqueduct, were at the heart of the adjudication, appeal, and final judgment in the San Fernando Valley case.
Indeed, and perhaps underscoring Knight and Johnson’s observations about the limitations of courts, the only Southern California groundwater basin adjudication decided by a judge was the botched 1968 decision in Los Angeles v. San Fernando, which was reversed on appeal.
For a recent discussion about the advantages of a share system for defining groundwater entitlements in the southern portions of Australia, see Young (2005).
Trying to work out the actual details of rule implementation has been a tough task for the Arizona Department of Water Resources. In his review of the effect of this legislation on developing rules related to new developments in urban areas, Glennon (2005, p. 10) reflects: “Countless public meetings and innumerable drafts—with debates over every comma and semicolon—finally yielded rules totaling 36 pages of single-spaced fine print.”
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Acknowledgements
The authors are grateful to both sets of participants who commented on the paper. Additional comments from colleagues Daniel Cole, Peter Cullen, Jack Knight, Bruce Lankford, and Mike Young were very helpful and are appreciated. The support of the John D. and Catherine T. MacArthur Foundation is deeply appreciated.
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Earlier versions of this article were presented as a paper at the conference, “New Institutional Economics and Development,” at Washington University, St. Louis, Missouri, May 2–4, 2007, and in the research seminar series of the Department of Political Science, Indiana University-Purdue University Indianapolis, October 26, 2007.
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Blomquist, W., Ostrom, E. Deliberation, learning, and institutional change: the evolution of institutions in judicial settings. Const Polit Econ 19, 180–202 (2008). https://doi.org/10.1007/s10602-008-9045-5
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DOI: https://doi.org/10.1007/s10602-008-9045-5