In reading Nathaniel Woodhull’s recent post about the events in Sacramento this week regarding the Assembly Budget Subcommittee’s action to suspend CCMS, and that together we can get the current administration of the Judicial Branch to understand that they serve the Courts and the citizens of California, and not the other way around, I was mindful of when and how it was that I first learned the lesson of The Power Of One.
At sunset on a chilly autumn day in 1977, a diverse group of people slowly gathered around a campfire at the base of the eastern escarpment of the Sierra Nevada mountains, along the northern shore of Mono Lake. First to the campfire’s circle was a local resident from the nearby town of Lee Vining, an ornithologist by the name of David Gaines, along with two of his friends who were visiting from nearby Yosemite National Park. Next to find a seat around the fire were four Audubon Society members who were currently living at the Mono Lake campground while conducting a population census on the snowy plovers breeding along Mono Lake’s western beaches, and a young artist and photographer by the name of Paul Kohlberg. Next came two trout fishermen visiting from Australia, and a wayward vagabond, sometimes carpenter, and Berkeley student by the name of Timothy Such, who had recently made David Gaines acquaintance. Finally to the fire’s circle came a graduate student from the University of California at Davis, who was in the area conducting research on the lake’s gull population, and his wife.
Each person in this group, in some way, personally knew David Gaines and it was his presence here that had drawn each to this gathering. Normally a man of infectious good spirits with a mischievous sense of humor, Gaines, on this occasion, was unusually somber and remote, and his sadness and sense of hopelessness was shared in varying measures by each person around the fire. For word had recently come out of Los Angeles, up into the Owens Valley, and finally into the Mono Basin and Lee Vining, that the Los Angeles Department of Water and Power (LADWP) would soon begin to exercise its right to divert all of the fresh water flowing into Mono Lake from the lake’s fresh water tributaries of Rush, Lee Vining, Parker and Walker streams into the Los Angeles aqueduct. To the immediate south of the Mono Basin, in the Owens Valley, lay the scarred and alkaline dust plain of what had once been a lush valley and the Owens Lake, where four decades earlier the LADWP had executed the same course of action. As a land-locked saltwater lake, Mono Lake was dependent upon its fresh water tributary streams to maintain a delicate ecological balance. Each person around the campfire, and most especially David Gaines, knew that with the diversion of Mono’s fresh water streams, Mono Lake and the Mono Basin would soon meet the same fate as that of its’ neighbor to the south.
In the cascading darkness, each member of this group had their own thoughts. The fishermen from Australia, who had first come to the Mono region as boys with their fathers to fly fish, thought of the many peaceful hours each had spent fly fishing for the rare wild trout that were native to Rush, Lee Vining and Walker creeks and how, unlike their fathers, they would never have the chance to bring their children here. The photographer, who discovered his talent and learned his trade along Mono Lake’s shores and among the spectacular vistas of the Mono region, expressed anger and betrayal. The Audubon staffers wondered what would happen to the avian populations that bred along Mono Lake and which were dependent upon the lake’s resources for survival. The zoologist thought of greater consequences; having spent several years studying Mono Lake he knew that its’ demise would have far reaching implications for the hundreds of thousands of birds nationwide that utilized the lake as a critical stopover in migration along the Pacific Flyway. David Gaines, however, thought more simplistically and directly; he thought that Mono Lake and the Mono Basin shouldn’t be so carelessly sacrificed and that someday California would deeply regret allowing it to happen.
Then the young wayward wanderer and student, Timothy Such, spoke. He turned to Gaines and, in a very quiet but forceful voice, said simply “You should go to court to stop them.” Gaines responded that the DWP was very rich and powerful, that the residents of the Owens Valley had been fighting the DWP unsuccessfully for a long time, and that the DWP had a legal right to the water. Gaines didn’t know it at the time, but what Timothy Such would say next would change Gaines’ life forever.
Such responded that it was true that DWP had a legal right to the water, but that didn’t necessarily mean that they had the right to use it in any way that they wanted, and explained to Gaines a little known legal principle known as the public trust doctrine, which had been used in American courts, including California, to protect public interest in commerce and fishing in navigable waters. Such stated that all of those elements existed at Mono Lake, and California court decisions regarding the public trust doctrine basically said that just because someone, including a municipality, owned water rights didn’t mean that the water rights could be used in such a way as to violate the public’s interest in protecting commerce and fishing.
The conversation between Such and Gaines and the others around the campfire became more intense, stretched far into the night until the early hours of the morning. At 3 a.m., as Gaines extinguished the glowing embers of the dying fire, he turned to me and said, “Remember this day.” I asked Gaines if he had decided to go to court and try and fight the DWP, to which he answered, “The last time I checked, life isn’t a dress rehearsal. We’re probably the only chance the lake has, and the worst that can happen is we’ll lose. Even if that happens, it’ll be the same result as if we do nothing, but at least it will take longer. I can’t just do nothing and let it happen. But for some reason that I can’t explain, I think we’ll win, and when it’s done the whole valley, maybe the whole state, will have joined in the fight.”
I could not see it then, but three years later I would sit in a small courtroom, with David Gaines, his wife Sally, many of the same people from that campfire, and others who had joined the effort through the Committee to Save Mono Lake, which Gaines had started within months of that night of the campfire, and listened to a judge from the Alpine County Superior Court deliver the first warning bell to the LADWP. In their arrogance, the DWP would choose to ignore that warning as nothing more than a slap on the hand, and would accordingly be caught unprepared in February of 1983, when, in a precedent setting decision that would eventually bring the LADWP to its knees in the Mono Basin, the California Supreme Court issued its’ Public Trust decision on Mono Lake.
From my mother I learned the value and necessity of telling the truth. From Judge Max Wisot, one of the judges my father worked for in the Los Angeles court, I learned of The Duty That Is Owed. And it was from Timothy Such, and especially David Gaines, that I learned of The Power of One.
History is replete with lessons of The Power of One. To name but a very few: William Wallace who refused to be compliant to the English tyranny of his country, and became one of the main leaders in the Wars of Scottish Independence. Sir Thomas Moore, who was imprisoned, tried for treason and beheaded because of Moore’s refusal to take the oath required by King Henry the VIII and the First Succession Act, because of Moore’s belief that the act disparaged the integrity of the church and Henry’s lawful marriage to Catherine of Aragon. Thomas Paine, who was charged in absentia and sentenced to death by Great Britain for publishing anti-British revolutionary literature and supporting the American cause for independence. The Sons of Liberty, who mostly came from common occupations, such as carpenters, masons, shoemakers, and laborers, and many of whom participated in The Boston Tea Party, and later became leaders, such as George Hewes, Thomas Melville, and Paul Revere, in the American War for Independence. Harriet Tubman, an African American woman in the time of the Civil War, who escaped from slavery, became a founding member of The Underground Railroad, made 19 trips into the South and escorted over 300 slaves to freedom. John Brown and Aaron Dwight Stevens, who were convicted of treason and executed by the Commonwealth of Virginia for attempting to organize resistance to slavery. Christoph Probst, who along with Kurt Huber, Willi Graf, Alexander Schmorell, and others, was a member of the White Rose, a resistance group in Nazi Germany that distributed leaflets against the Nazis’ war policy, and who were betrayed to the Gestapo. Oskar Schindler, a German industrialist who saved Jews from extermination during the Holocaust by employing them in his factories in what is now Poland and the Czech Republic. Rosa Parks, who refused to obey the order of a bus driver in segregated Alabama to give up her seat to make room for a white passenger, and was arrested, jailed, and fired from her job for her civil disobedience. Following her arrest, Parks helped organize the Montgomery Bus Boycott, and worked with civil rights leaders, including boycott leader Martin Luther King, Jr., which led to King’s launch to national prominence in the civil rights movement.
Each of these persons, and many others, share a common thread: one voice, one vision, one person, that has changed the course of history for many.
Here, in this place and at this time, we each bear witness to the Power of One. It was one person, the AOC Watcher, whoever he or she was and is, that first gave a forum to link us together, to raise our voices, to share what each of us knows, and took away the advantage of the AOC and judicial branch administration to keep us silent and separated. And then one other, JCW, whoever he or she is, that picked up that banner when the AOC Watcher fell silent, and raised the banner even higher. One judge on the Judicial Council, Bert Pines, who first rejected the tenant of Speak With One Voice, who spoke up and raised red flags regarding judicial branch administration, CCMS, and the inherent dangers of prohibiting democratic participation in branch governance. And one judge who was the first to say to his or her colleagues that they could not sit idly by and do nothing, and which led to the formation of the Alliance of California Judges.
Much like the circumstances regarding Mono Lake and the LADWP, the authority of the Chief Justice, the members of the Judicial Council, and the AOC, is held in the Public Trust. And, as with Mono Lake and the LADWP, it is not within the discretion of the Chief Justice, the members of the Judicial Council, and the AOC, to use, or abuse, that authority in such a way as to violate the public’s interest. But this is clearly what has happened. For those that attended or watched the hearing on CCMS this week, the hearing and the subsequent action of the Assembly Budget Subcommittee reflect one simple fact: the current representatives of judicial branch administration, by their own actions, have lost all credibility, especially with the State Legislature.
Together, each of us, in our own way, has helped expose the violation of the public trust taking place within judicial branch administration. Together we are many. But remember this always: before there can be many, there must first be one.
Remember the power of one. And remember the duty that is owed.