Farmer 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.
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.