Conservative News & Commentary

Sep 29, 2015 — by: G.W. Washington
Categories: Government, News

Tom_mallamsFarmer Tom Mallams responded to the charges of being above the law and flaunting water regulations with an article published in the Herald and News. What often becomes a casualty in an emotional, unfolding story are the facts. In this case the timeline is important to understand what happened and when. We have constructed the following timeline from Mallams account and the Herald and News reports.

June 16 Klamath Project made a call on its water right
July 3 OWRD issued shut-off notices to junior water users, which included Mallams
July 21 OWRD issued a second shut-off notice
July 30 OWRD issued a third shut-off notice
Aug 7 OWRD issued a violation notice against Mallams
Aug 25 Mallams ceased his water usage
Aug 28 OWRD issued a second violation notice to Mallams

Now at sometime (we do not know exactly when yet) Tom Mallams asked for a judicial review of his water rights. This judicial review temporarily suspended all notices made by OWRD until Mallams case can be adjudicated. Tom Mallams admits he misunderstood the administrative rule, that the OWRD rule goes into effect when issued, not received. Mallams also has said he would pay any fines if found guilty of violating the rules.

Since Tom Mallams did not receive a notice until, most likely after, he filed for judicial review, it is easy to understand why he continued to use water until late August — he thought while his case was being reviewed, any power behind the OWRD notices were suspended. The question arises is whether it reasonable to believe that Mallams knew his water rights had been terminated before he asked for a judicial review. That is a difficult point to argue one way or the other because it requires getting inside the head of Mallams. Nevertheless, there is a much larger issue at work here, and that is of Administrative Rule.

When Administrators Rule, People Suffer

Tom Mallams made it clear that he may have violated an administrative rule, but not the law. While the newspaper and the OWRD try to assert that these are one in the same, they are not. Only the Oregon Legislature can write bills, which then are signed into law by the Governor. All the OWRD can do is create administrative rules and assess fines. While OWRD can carry a big stick, they are not law makers.

Our Founding Fathers believed in the important principle of “Separation of Powers”. They believed people are easily corrupted when given too much, unchecked power. Therefore, the Founders created a system of government with three separate but equal branches: A legislative body to deliberate and create law, an executive branch to execute that law and a judicial branch to adjudicate that law. The law makers and the executive are elected officials, accountable to the people. Also, no government official can be in more than one branch at a time, and all branches are equal, checking up on one another.

But the OWRD is a very different animal, something that the Founders would have opposed and eliminated at every turn. Why? Because OWRD writes its own rules, enforces its own rules and adjudicates its own rules. Do you see the problem? All power is under the same agency: legislative, executive and judicial. What’s more, OWRD officials are unelected bureaucrats, and removing a bad apple from their post takes an Act of God — because of their powerful labor union.

Moreover, the OWRD ruling may have caused Mallams to violate his conscious. Mallams is in the middle of growing a crop and could have turned off the water, watched his crop die and made an insurance claim. While Mallams admits that was the easy thing to do — to make a quick buck by doing nothing — it was not the right thing to do. It could be considered fraud to make a claim against an insurance policy when there was no disaster to the crop. And there was no disaster that took place, except for an out of control government bureaucracy.

It used to be that OWRD would first have to prove that a particular well was causing harm to nearby water supply before the agency could issue a shut-off notice. But today the burden of proof not on OWRD, but on the farmer! The farmer must prove that his or her well(s) are not causing harm. That is like having to prove you didn’t beat your children yesterday if some bureaucrat says you did. In other words the farmer is guilty until he can prove his innocence. If that is not anti-American, then nothing is.

Conclusion

We have an administrative agency that is law maker, executor and judge — there is no separation of power, and there is absolutely no accountability to the people they, supposedly, serve. We have an administrative agency that makes farmers prove innocence when some Salem bureaucrat doesn’t like the way a farmer parts their hair, and if that farmer disobeys, they get a hefty fine.

Here is the punch line: this would not be a story except that Tom Mallams is not only a farmer but also a County Commissioner. OWRD is using Commissioner Mallams as an example to put the fear of their agency deep into the heart of every Klamath County farmer. This is the same administrative tyranny that a labor board judge slapped down on Sweetcakes by Melissa in 2013. The fine levied against the small bakery for $135,000 was not to compensate for any wrong doing but was an explicit warning to others to never lock horns with the administrative state. Likewise OWRD will take off the gloves when dealing Commissioner Mallams, using him as an example. They are in charge. You are not. You will obey. You will never think of challenging or disobeying the OWRD, no matter how unjust their rules, process or agency is.

If our nation is to thrive, if our nation is to survive, we must stand together on our founding principles. We must stand against unelected bureaucrats who claim we are guilty without proof, who fine us, and who drag our name through the mud by claiming we are arrogant or flaunting their rules. We are not the corrupt and arrogant, they are. Their unchecked power has turned them into thinking they are the kings and we are their servants. This entire drama nothing more than a power play by the OWRD. Furthermore, fanning the flames are those who are angered with Commissioner Mallams stance on the KBRA and the lack of support for marijuana distribution in Klamath County. While farming season may be over, election season has just begun.

It is time to stand with Mallams who is representing the average farmer in the basin. If they can take him down, if they can ruin his name, if they can claim he is guilty without proof and by administrative fiat, then they can do the same to any and all of us.

7 Comments

  1. Paul Clark ~ Sep. 29, 2015 @ 11:04 pm

    I recently wrote a letter to the editor stating the same position this article takes, that both California and Oregon are stepping beyond their constitutional authority. Farmers and ranchers need to unify and defy their administrative mandates. Putting it civilly,tell them "To go fly a kite", albeit I meant it in its extreme interpretation! The following day the "local fish wrapper" came out with their usual liberal opinion, something about other editors saying that Commissioner Mallams was irresponsible and basically a criminal. Since I cannot respond for 30 days, the issue will go on to something else against conservatives and especially farmers and ranchers. Most likely another two page ad glorifying the wolves in the Cascades! The Herald & News has become a typical liberal rag! #
  2. Brian Smith ~ Sep. 30, 2015 @ 5:54 am

    Its hard to disagree with your position, until you attempt to get into the heads of others to determine their motivation. Also, regardless of the fact I agree with the overstep by adminitrative rule, you point out that only the staye legislation can make laws so is that not the same with the issues Mr. Mallams opposes in Klamath County? It seems to me using your argument in favor of Mr. Malloms is contradictory to his actions on issues he may not agree with. Please correct this understanding if wrong! #
  3. G.W. Washington ~ Sep. 30, 2015 @ 6:49 am

    Brian - Thank you for writing. My belief is Tom Mallams did NOT know he was violating any administrative rule. He believed his judicial review stayed any orders by the OWRD. Mallams has admitted his understanding of the rule (notice issue vs. received) was incorrect and will pay any fines accordingly. However, this just illustrates the madness of OWRD's authority and overreach. Guilty before proven innocent. Really? This must stop, and Mallams case gives us a chance to shine a bright light on the Administrative monsters - who operate without any real accountability and cannot be unseated from power by the people. #
  4. William Wilberforce ~ Oct. 2, 2015 @ 3:58 am

    G.W. Thank you for posting this. The regulatory jungle has become so pervasive that the average person is at risk of breaking several rules or laws multiple times each day without even knowing it. When compliance becomes a complex, high stakes waltz with big government, selective and subjective enforcement become powerful weapons in the hands of bureaucrats. They can use their complex matrix of little known rules to make an example out of someone or they can use it as a political weapon, enforcing rules where political opponents are exposed and quitely using prosecutorial discretion where the political allies are found to be out of compliance. On top of it all, the writing of administrative rules, regulations, and new laws seem to be accelerating with NO regard for economic costs or the fundamental liberties that built this great nation. #
  5. Tom Mallams ~ Oct. 10, 2015 @ 1:49 am

    Thanks so much for your coverage and helping to expose this insanity by our state agencies. To further clarify, Oregon Water Resources Department,(OWRD), first notice was not valid since it referenced the incorrect statute of authority. The second notice was an attempt to correct the first notice. They even tried to back date the second one which is not allowed. Within the notices, we were allowed 60 days to file a Petition for Judicial Review, which by definition is an "instant stay". Their final notice, dated August 25th, which we received on the 28th, gave us until August 31st to comply. We had already turned our water off on the 25th, since we were finished irrigating for the season. The truly sad part of this is that the H&N knew all these facts while they were claiming my wife & I were "stealing water"from our neighbors. Another fact OWRD and the H&N ignore is that there were numerous other irrigators that did not turn their water off at all. This was well water and surface water. OWRD & the H&N have obviously singled us out for "special treatment". The only fact that I feel extremely guilty of is the fact that these controversies help sell papers for this over the top, biased, liberal newspaper. Maybe the H&N should not be classified as a "newspaper", but instead an "editorial" paper. #
  6. linda reyes-bliss ~ Nov. 14, 2015 @ 3:32 pm

    This town is corrupt! Mallams Abused his power and is getting away with it. We in Klamath need to make sure we vote him out. I want to start a "watch group" on the county commissioners & the sheriff office. Call me at 1 971 283 3524. Let's start taking back our town, from the likes of elected officials who are criminals! #
  7. G.W. Washington ~ Nov. 15, 2015 @ 10:57 pm

    Linda, we are all entitled to our own opinion, but we should make sure our opinion aligns with facts. Mallams did not abuse his power. He did not use the Commissioner’s office in any way shape or form in this matter. As commissioner should he have set a better example? Perhaps (although after talking with Tom on this issue, I am standing with him on this one because he is standing against the abuse of power by the ORWD). But Mallams abusing power or possibly setting a poor example are two very different things. #

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