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Posts published in January 2018

Sizing the snowpack


Every day, the Natural Resource Conservation Service, a division of the U.S. Department of Agriculture, gathers statistics about water levels and snowpack. These tell a great deal not only about what’s on the ground now but also about what to expect in months to come.

I’ve checked these numbers at least weekly for years (they’re posted online at and they’ve offered a fair indication, when you put them into context, for what’s coming by way of water supply in areas all over the western United States.

This year, Idaho is coming off a good water year, and that should help the state at least somewhat in maintaining an adequate water supply in months to come. The year before that, 2016, conditions were dryer, but in most places still better than in much of the west, where drought was prevalent. In a number of other recent past years, the state has seen drought.

So, three months or so into the new water year (annualized measurements start in October), what does 2018 look like?

The set of stats I check most closely are those showing the “percentage of normal accumulated precipitation,” which very roughly translates to: How good is the snowpack, at this point, compared to historical averages? Those numbers vary around the state, and they’re broken out by river basins, or in some cases other regions.

To get a sense of what they mean (get ready for some numbers), you can compare them with past years at the same time. Here’s how some of the basins look as of now.

• In the northern Panhandle, the current percentage is 103. Last year at this time it was 134, and in 2016 it was 120.

• The Salmon River basin now reports 90 percent. In 2017, it was 106; the year before, 115.

• The Payette basin is coming in at 82 percent. A year ago, it reported 99 percent; in 2016, it was 115.

• The Boise now shows 79 percent. Last year this time: 104 percent; the year prior, 120.

• The Big Wood is clocking in at 79 percent too. In 2017: 124 percent. In 2016: 118 percent.

• The Bear River now is at 76 percent. Last year it showed 137 percent; the year before, 86 percent.

• The Snake River above Palisades Dam is at 97 percent of the norm. In 2017, it was 155 percent; in 2016, 92 percent.

You can catch a few themes in this.

One is that a really good water year (in a particular place) can help tide over an area receiving less the next. (The Bear River area would be an example.)

But you also can see how the accumulation levels this year overall are a good deal shallower than they were last year, or the year before. They’re also, on balance, a little lower than in 2015. (And note too: They’re lower still to Idaho’s southwest and south.)

The last year they were lower - and then they were significantly lower - was in 2014, though in that year the state happened to pick up enough snow and rain in late winter to help out, and the snowpack returned to roughly normal levels. But you could consider that a late save.

Get ready for some careful water usage and conservation, and extra caution in the wildfire department, in the months to come.

Why warehouse low-risk drug offenders?


I’ll be the first to admit that it was a mistake to support mandatory minimum sentences for drug traffickers during my tenure as Idaho Attorney General in the 1980s.

Most observers have come to realize that long mandatory sentences are not appropriate for every offender. Legislatively mandated sentences tie the hands of judges who are best positioned to tailor the appropriate punishment for the crimes committed by a particular defendant.

And, while they do not reduce recidivism, they do needlessly inflict damage on the families of low-risk offenders. In 2014, Idaho adopted the Justice Reinvestment Act to provide for earlier release of low-level offenders, to ensure their success by providing them greater supervision, to reduce the number of repeat offenders, and to reduce the cost of Idaho’s prison program. The legislation had broad-based support and holds out great promise for success.

Throughout the 1980s, there was a perception that judges were not being tough enough on high-volume drug traffickers. It was thought that requiring judges to impose mandatory minimum sentences would keep these big fish off of the streets and reduce the drug problem. In 1992, the Legislature enacted legislation to require minimum sentences for persons in possession of certain quantities of illicit drugs, with longer sentences for larger amounts. The mandatory sentences were based solely on the quantity of drugs the person had.

It has not worked so well. The drug problem has gotten worse and many people who were simply users, and not a substantial danger to society, have taken up prison space and taxpayer dollars for no good purpose. The longer such people stay in prison, the harder it is to keep them from re-offending.

Having observed the judicial system from the inside for twelve years, I believe that our trial court judges have a good feel for who deserves to be incarcerated for a long stretch and who shows promise for staying out of further trouble. Our judges take into account who is before them and whether they pose a societal risk, rather than just the weight of the drugs they had in their control. That is how justice is served. It is not served by a one-size-fits-all system of sentencing where a set of scales determines the length of the prison term.

The court system has worked hard to educate judges as to the correct balance between incarceration and rehabilitation. Judges share information about sentencing for various offenses throughout the state to bring about a certain amount of uniformity. The judicial system has developed drug courts to help lower-level offenders get free of drugs and put their lives back on track. These are the measures that can reduce recidivism, salvage those who can be rehabilitated, and keep families together. Mandatory sentences do not. My 1980s mindset was wrong, as was the 1992 legislation.

Last year, Representatives Ilana Rubel and Christy Perry introduced legislation to eliminate the mandatory minimum sentences in the 1992 statute. Their bill retained the maximum sentences for drug trafficking but left the length of the sentence up to the judge, who can set a minimum prison term of his or her choosing. That legislation will come up again this year and people should urge their legislators to support it.

Notes . . .


Two new U.S. senators were sworn in Wednesday - Doug Jones of Alabama and Tina Smith of Minnesota - both arriving after presence in part of a national political firestorm. Jones' election as a Democrat from Alabama is remarkable, but Smith's entry to the Senate is the one that sets a statistical record. She becomes the 22nd woman in the U.S. Senate, marking the largest number of women ever to serve there.

That simply brings ther Senate more or less into line with the rest of American politics, because the 20 percent mark is about where women are in politics nationally.

The Center for American Women in Politics at Rutgers University has looked at the numbers, and as a matter of percentage here is the female membership of various elective cadres:

• Senate - 22%.

• House of Representatives - 19%.

• Statewide elected officials (including governors) - 24%.

• Mayors (100 largest cities) - 22%.

• State legislatures - 25%.

The across the board similarity is remarkable.

And it may rise across the board a year from now. - rs

Baseball and equity


Most Idahoans who follow major league baseball know that Harmon Killebrew, the Hall of Fame home run slugger for the Minnesota Twins, was born and raised in Payette. They can probably tell you that Larry Jackson, a stalwart pitcher for the St. Louis Cardinals, and Vernon Law, a star pitcher for the Pittsburg Pirates, were also Idaho-born.

Ask even the most fanatic fan one can find if they could tell you anything about others on the list of 30 Idahoans who made “the show” or are still in the majors, and one is liable to see nothing but a blank look.

Ask if they could say any factoid about Bruce Ellingsen, a pitcher born in Pocatello, or Bob Martyn, an outfielder born in Weiser, who graduated from Twin Falls High School and went on to Linfield College.

Or how about Frank Reberger, a pitcher born in Caldwell, the younger brother of Phil Reberger, the former chief of staff to Dirk Kempthorne when he was a U.S. Senator and Idaho’s governor and considered by many to be the most influential Republican operative in Idaho.

The latter three “unknowns” share or shared one common denominator: for years they were denied the retirement benefits of Major League baseball which in 1980 adopted a rule that eligibility required a minimum of four years of major league service and was retroactive to players who were in the show between 1947 and 1979. The rule change caused 500 former major leaguers to be left high and dry, as if a high and inside fastball had been tossed at their heads.

The pooh-bahs of baseball do toss a small carrot to these players based on a complicated formula that doles out $625 for every quarter of service these players may have accrued. Under this formula a non-beneficiary could receive a maximum payment of $10,000 a year if he served slightly less than four full years.

Compare that to a vested retiree who can receive a pension as high as $210,000. Nor can the dole for a non-beneficary be passed on to a surviving spouse or other designee. This is what happened to Weiser born Bob Martyn, an outfielder for the Kansas City Athletics who played in 154 games between 1957 and 1959 and died at age 85 in 2015.

Given that the Major League Pension Plan has $2.7 billion in assets, according to Forbes, one would think baseball could be a tad more generous. The four year requirement explains why many former players cultivate relations with the management of various teams in part because if one becomes say a bull pen coach or a pitching coach he can significantly pad his retirement benefit or qualify for a nice pension.

Take for example Caldwell born former Vandal pitcher Frank Reberger. Drafted by the Cubs he made it to the majors in 1968. Shortly after making the roster he was drafted by the first year expansion San Diego Padres. He enjoyed some success against the San Francisco Giants so they went out and picked him up and the rest of his brief caeer was spent with the Giants until he left baseball in 1972---just short of the four year requirment adopted in 1980.

Ten years later he realized the value of qualifying for the major league pension. During his brief career he had gotten acquainted with the great Dodger executive Buzzie Bavasi who helped him get into the Angels organization as a bull pen coach. The day he reported for work in the Angels organization he qualified for the pension program. Later, the expansion Florida Marlins made him their first pitching coach.

During Reberger’ slightly less than four year player career he won 14 games and lost 15. His ERA was 4.51; he pitched 389 innings giving up 404 hits, issuing 197 walks and striking out 258 batters. He appeared in 148 games for the Cubs, Padres and the Giants. He started 37 games, and pitched five complete games.

Since he was a National Leaguer there was no “designated hitter”so he had 100 at bats with 23 hits (no home runs) for a .230 batting average. Today he is retired and resides on Camano Island in Puget Sound.

Pocatello born Bruce Ellingsen pitched briefly for the Cleveland Indians. He appeared in 16 games and was the starter in two. He pitched a total of 42 innings and finished with a respectable ERA of 3.21. Today he is retired and living in Laguna Hills, California.

In Bob Martyn’s 154 games he had 358 at bats with 94 hits which included 12 doubles, 11 triples ¸3 home runs, 35 rbi’s, and scored 35 runs while with Kansas City. Brief as some of these careers were one can bet that they all will always treasure that they were in “the show.” It would be nice to receive equity in a pension but there are some things money cannot compensate for or buy.

(Note: I am indebted to author Douglas Gladstone for much of the research in this column.)

Mob boss in the White House


Every American who has ever pledged "allegiance to the flag of the United States of America and to the republic for which it stands,” should have a shudder running down their spine. At the helm of that republic sits a would-be tyrant who denigrates the rule of law and thinks himself above the law.

In an interview with the New York Times, Donald J. Trump declared: “I have absolute right to do what I want to do with the Justice Department.” Claiming to have the power to open, or end, an investigation, Trump referenced the Mueller inquiry saying, “[F]or purposes of hopefully thinking I’m going to be treated fairly, I’ve stayed uninvolved with this particular matter.”

His not so cryptic message is both stark and horrible: “If Mueller does not exonerate me, I can – and I will – shut him down.”

Were Trump to attempt to do this, it would be a manifest obstruction of justice, an offense for which he should be impeached and convicted; but we cannot count on the Republicans in Congress to rise to the occasion.

Mitch McConnell, Paul Ryan and so many of their GOP colleagues have become Trump’s defenders. They have no objectivity, no sense of shame. As former George W. Bush speech writer David Frum has wisely observed, "This isn’t remotely like Watergate. During Watergate, Congress cared whether laws had been broken."

In the same interview, Trump continued his criticism of Attorney General Jeff Sessions for recusing himself from the Russia investigation – a recusal absolutely required by Justice Department protocol. Trump then claimed that former Attorney General Eric Holder protected President Obama and deemed such “protection” praiseworthy.

Trump has no facts to support his conclusion that Holder “protected” Obama and offers no evidence in support of that assertion. What is profoundly troubling, though, is the unmistakable implication that a good attorney general will protect the president who appointed him. The attorney general serves the country and the constitution, not the president. Trump’s view of the ideal attorney general is a “yes man,” a sycophant, a political hack who will reward his patron with “protection.”

We do not have a president, as our founders envisioned a president; we have a mob boss running a criminal syndicate from the Oval Office. In 2018, we must elect a Congress that understands the difference.

Slowing the draw


Do you drink the bottled Arrowhead Spring Water, sold by Nestle?

There may be a little less of it available, depending on how several water rights-related legal tests pan out.

On December 20, the California State Water Resources Control Board told Nestle that it doesn’t have the rights to drew water – or at least, the amount it’s drawing now – from the San Bernardino National Forest.

This situation dates to at least April 2015, when the state began to receive complaints about the company: “The complaint allegations included diversion of water without a valid basis of right, unreasonable use of water, injury to public trust resources, and incorrect or missing reporting, all regarding Nestlé’s diversion of water from springs at the headwaters of Strawberry Creek in the San Bernardino National Forest for bottling under the Arrowhead label. Many of the complainants emphasized their concerns about the impacts of Nestlé’s diversions during California’s recent historic drought.”

To be clear, Nestle did not just walk onto the forest lands and start pumping; it does have a legal argument. It has reported its groundwater diversions to the state, saying they comport with state requirements. It claims a right, for example, that dates back to 1865, and makes use of a 1912 basis for a right that specifically refers to water bottling.

But the amounts have been large: “Over the period from 1947 to 2015, Nestlé’s reported extractions from the springs in the SBNF have averaged 192 acre-feet, or 62.6 million gallons, per year [emphasis added]. Nestlé claims several bases of right for the diversion and use of water from the Strawberry Creek Watershed.”

The legal problem seems to relate to the idea that water bottling on a really large scale is relatively new thing.

For example, the state found that the 1865 water right Nestle says it is using does exist, but it “is limited to riparian uses and is not valid for Nestle’s current appropriative diversion and use of water.”

And although some rights have been reasonably (or at least realistically) used for some diversions, “a significant portion of the water currently diverted by Nestle appears to be diverted without valid basis of right.”

And, there isn’t enough solid information to be able to tell whether the public trust is being harmed by the large-scale diversions.

This is the latest turndown of a major diversion by Nestle (another large rejection, at the Columbia River basin in Oregon, came only weeks earlier) in recent months.

Might this be an indicator that a tide is turning, as it were, on the question of how much water we’re willing to pull out of the ground to fill containers of bottled water?

Could be.

Happy New Year!

And welcome to 2018. Before we welcome another year in another 365 days, we should have quite a bit to discuss. We'll be back to get it started tomorrow.