Water Archives · Kole Upton interview

Title

eng Kole Upton interview

Description

eng Former manager of the Chowchilla Water District and former board member of the Friant Water Authority. Upton led the Friant Authority when it negotiated the San Joaquin River Settlement, but then decided to oppose the settlement, withdrawing Chowchilla Water District from Friant in the process. He continues to criticize the settlement today.

Creator

eng Upton, Kole

eng Gray, Glenn

Relation

eng Water Archive Oral Histories

Coverage

eng California State University, Fresno

Date

eng 4/2/2009

Format

eng Microsoft Word 2003 document, 16 pages

Identifier

eng SCMS_waoh_00030

extracted text

>> Glenn Gray: Alright, today is the second of April, 2009. I'm Glenn Gray from
the Madden Library of Fresno State. And today we are going to be interviewing
Kole Upton. So welcome, Kole.
>> Kole Upton: Thank you.
>> Glenn Gray: I'd like to start off by asking you where and when you were born
and could you describe your upbringing and your family background?
>> Kole Upton: I was born in Fresno in 1943. An interesting part - at least for
me - that I found out later was that day my father left for World War II and he
didn't return for 3 years. And I'm told that when he came back that I told my
mother that she should send him back to the army and get another one because
apparently I didn't, didn’t like him at first. So anyway, that's where I was
born: in Fresno. And my dad started a farm up in the Chowchilla area. It's
actually in Merced County. He started with 100 acres in 1946 and he got some
help with financing from his brothers. His family had moved out here from
Oklahoma during the Dust Bowl. There were 9 brothers and sisters and they all
did pretty well in using this area as an opportunity. Anyway, he started the
farm there in that area and it's just gradually grown to what it is today. And I
grew up on the farm, but when I was growing up, my dad had told me there wasn't
going to be enough land to sustain me if I wanted to farm so that I should take
all these good courses like Latin and Algebra and all these other things, and
don't worry about FFA that kind of thing, so that's what I did. I actually
didn't really apply myself in high school. And in those days, you had a couple
of choices. You could go to college, you could go to work or you go in the army.
And my dad informed me that I had a choice. I'd either start applying myself if
I went to college or I could go in the army because he wasn't going to fund my
efforts if I wasn't going to apply myself. So I applied at Fresno State and I
went there a couple years and actually I probably learned more education wise at
Fresno State than I did anywhere. But he had a - I wouldn’t say an obsession but a desire that one of his kids should attend Stanford. So obviously my grades
weren't good enough when I was going through high school to get in but they had
a transfer program so I applied as a transfer. I didn't think I'd ever get in
but I did. And what I did is I was on an ROTC scholarship at Fresno State with
the Air Force and they had an Air Force also at Stanford so I transferred there
and I graduated there in 1965 in engineering. When I was coming back during the
summers I would drive harvesters and do farm work and that kind of thing which I
really enjoyed. I enjoyed living out in the country and I enjoyed the air and
just the atmosphere of the small type of thing. Anyway, shortly after graduating
from Stanford, then I went in the Air Force and ended up being an avionics
officer, which I was in charge of a 150 man shop which repaired the aircraft
that went into Vietnam. It would carry ammunition into Vietnam and then they'd
be reconfigured and they'd bring either the wounded or the deceased out. And I
was stationed at Yokota airbase in Japan for most of my time. The opportunity
that, that gave me as a young man to actually be in charge of 150 men at my age
got me the ability to know people and to work with people. And it's been
invaluable ever since then. And I think the time that I spent at Stanford - I
don't know - gave me the confidence I guess to deal with some of these water
issues that I deal with today because I think that so much of what I found in
the water business is that we have farmers that are the elected directors and
they go to the meetings and everybody tries to do the best they can, but a lot
of times we feel overwhelmed by some of the other folks on the other side:
academics, PhDs, water experts and all this and you tend to feel a little bit
intimidated and yet water is our lifeblood, in our culture so we have to stick

up for ourselves. Anyway, I spent 6 years in the air force. I had the
opportunity to spend an extra 3 years. They gave me a chance and I'd been first
to Charleston, South Carolina before I went to Japan and that's where I learned
- not for the first time - that the ones, the people that actually ran the air
force were the sergeants: the NCO, not the officers. The officers thought they
did but you know they were wrong. Anyway, I had this one sergeant that worked
for me in Charleston and he wrote back and said that he was going to get me an
assignment to Japan which meant you could take the family with you. And this was
during the Vietnam situation. So when I got my orders, the personnel officer
brought me in and demanded to know how I got the assignment because he said
you're the only avionics officer in the command that is not going to Vietnam.
And you know I played dumb. I said "Well that's just the way it is." So anyway - but I had to extend 2 years to take it, but it was a worthwhile experience.
The people I met in the Air Force were the finest people that I've ever met. And
so when I got ready to get out in 1971, you know I was applying for jobs and all
this kind of thing because I'd been told that I was not a peacetime officer:
that the military was different in peace time as it was in war time and that I
had apparently irritated too many people with my management style or whatever,
because I tended to irritate the people above me because I felt that we had a
job to do and we ought to do it and not be interfered with. But anyway, at that
point my dad had picked up some -- another ranch - another large ranch - and he
asked me would I be willing to come back and help him farm. And you know I told
him "Well, you know when we grew up -- when I was growing up you told me not to
do this, wouldn't give me enough room." So I said "I don't know diddley squat
about managing farming." He says "Well I will teach you." You know and farming's
a very specific area type thing. I mean just because you can farm this piece of
ground doesn't mean you can farm one 20 miles away because it's different. So it
took me 10 years before I actually felt -- had any confidence in what I was
doing because a lot of things in farming you only do once a year. You only plant
once a year. You only harvest once a year and that kind of thing. So but a lot
of it was involved in managing people. And the people that I hired in 1971, a
lot of them are still with me that they're getting ready to retire. We have a
program where we help our employees buy a house so that when they do retire
they've got something. Most of their kids have gone to college. One of them is a
PhD. And so it's been a very rewarding career for me to be in that in the
farming. And how I got involved in water was that my dad had started a water
district in, in Merced County there where we farm. It was called the La Branza
Water District: 16 thousand acres. And the reason he did that was that at that
time there were other districts going around and annexing land whether it wanted
to be annexed or not. Not giving them any water, but charging them a tax. So the
way you could prevent that was to have your own political entity: even if it
didn't do anything. So it sat dormant for a lot of years but then when
Chowchilla Water District decided they wanted to invest in Buchanan Dam which is
a dam along the Chowchilla River, they needed additional acreage in order to
qualify for that. And so La Branza - they offered it to La Branza - so they
became a part of Chowchilla Water District eventually when they merged in 1989.
But it was in 1976 when my dad told me that -- well he had spent enough time in
the water business and it was time for me to take over. A lot of that's done in
the water business. Its directors and then their sons tend to sometimes follow
in their footsteps. And on a sort of humorous note in a way before he passed
away years ago he told me, he says "You know, when I was running it we didn't
use to have all these problems." I said "Dad, you can have it back if you want."
So anyway, that's pretty much my history.
>> Glenn Gray: Well how many people were you managing then when you started
working for your dad on his farm?

>> Kole Upton: It was only about 20.
>> Glenn Gray: Okay.
>> Kole Upton: It was about 20. We're down to like 14 now because of
mechanization and that kind of thing but it's the same guys as basically -- same
families.
>> Glenn Gray: Yeah. And when you were working for your dad before you went away
to, to college, how aware were you of these water issues? I mean obviously your
dad was working on them but was it something that you thought about a lot, all
the time, or were you just kind of -- was it just kind of in the background?
>> Kole Upton: Well as a young man I think I had other interests...
>> Glenn Gray: [Laughter]
>> Kole Upton: ...I was pursuing. The one thing I do remember though he was very
strong on the conservation and recycling of the water. And he was one of the
first in our area to build what we call sumps or when the water gets out of a
field if you're flood irrigating, then you'd basically dig a big hole and you'd
put in a little pump and you pump it back to the front of the field and you
reuse the water, so that you're actually conserving water. And his view was it's
a lot cheaper to run a 5 horse pump than it is say a 50 horse pump and pump from
the underground. We didn't get canal water on our ranch until late 79, 80. So I
wasn't really familiar with surface water that much except on some of the rented
ground we had below Chowchilla. But to answer your question, no I didn't give it
a lot of thought because I didn't think I was going to be back doing this
anyway.
>> Glenn Gray: Yeah, yeah. Well once you got involved then with the water issues
more directly, so you're saying circa 1976 then?
>> Kole Upton: Yeah.
>> Glenn Gray: What was, what were the hot issues of the day? I mean and how
different were they from what you're faced with today? I mean is it -- can you
kind of take us through the steps along the way there?
>> Kole Upton: Well I would call that the good old days because I mean at the
Friant contracts in those days you were paying 2 dollars and 50 cents an acre
foot for the Class I water. You were paying a buck 50 an acre foot for the Class
II water and you had plenty of it. And the enviros, they were not organized as
well as they are today. The thing we were working on specifically in La Branza
Water District was building our canals. And that was quite an interesting
project because you'd let out the contract and then you'd have to go through
everybody's property. And we did a couple things that were a little bit
different than the historical way Chowchilla Water District did. One thing was
that we wanted to maintain control of -- over the ingress and egress on our
properties. In other words, we did not want it set up where it was a public
thoroughfare so that anybody and everybody could come traipsing through your
land just because it was a -- now owned by water issues so what we gave them was
easements so that they could use the land for whatever they needed to deliver
the water. But other than that nobody should be on the property.
>> Glenn Gray: Could you talk a little bit about the distinction between Class I
and Class II water?

>> Kole Upton: Alright, Class I is a more stable supply. The Friant system you
get about 800 thousand acre feet of Class I out of Friant, about 1 point 4
million of Class II. You rarely ever get all your Class II because that's just
in the very wet years. So these contracts are split among the 28 Friant
contractors that are on the East side of the San Joaquin Valley: one of which is
just like the city of Fresno which has a 60 thousand acre foot Class I. Now
Chowchilla has a 55 thousand acre Class I and a 160 thousand acre Class II. And
other districts up and down the valley have different varieties of that. One of
the interesting things is why does Friant go from Merced County all the way to
Kern County? And the reason is when they built the dam, they went out to local
folks and entities "Do you want a contract for this water?" People up in this
area a lot of them didn't think it was worth doing because they had Artesian
wells and they just didn't want to spend the money. Whereas there were people
all the way in Arvin, Edison in Bakersfield for instance that did want to do
that and so they contracted for the water. So that's why the Friant water goes
up and down the valley is because of that original concept and the people that
stepped up to the plate to get it.
>> Glenn Gray: Okay, anything else you want to say about your early years in
working with the water districts? I know that the -- you have some thoughts
about the Central Valley Project Improvement Act so did you want to talk a
little about the -- both before and after that act was passed and how that
affected your industry?
>> Kole Upton: Yeah, I can do that. I think one of the interesting things I've
found when I came home from leave one time in the air force, my dad took me down
to the ranch we had in Chowchilla which we were renting. And that's when I first
got to meet water district manager. His name was Jack McKenzie [assumed
spelling] and it was an interesting situation because what had happened there
was a ditch break - the canal broke - a squirrel hole had caused it. Well Mr.
McKenzie was telling my father well you know "The squirrel came from your
property therefore we're going to charge you, you know for this break." And my
dad was maintaining that it was a district squirrel and so he had these
discussions between these two...
>> Glenn Gray: [Laughter]
>> Kole Upton: ...and I told my dad I said "Well I'm glad to get back to the Air
Force you know." Central Valley Project Improvement Act, you know that it's too
bad that, that happened because this is a -- this is one of the failings I think
in agriculture and in farming because it didn't have to be that way. Because I
can remember going back in 1982 and testifying in Washington D.C. on a proposed
reclamation reform act. It was something that we could have lived with but at
that time I was relatively young and I was told to keep my mouth shut, because I
was wanting to work it out. And they said we don't have to do anything with the
enviros. We were just going to stiff them and so be it. Well it didn't happen
that way because by 1992 they were powerful enough and they came back with a
CVPIA. Our folks were locked out of the room when it was done. We were promised
- or I wasn't personally - but I was told that we were promised that President
Bush would veto the bill. And it didn't happen that way because he offset it
with some other things he gave other states and thought he'd get reelected. That
didn't work out too well for him either. So anyway, the problem with the Central
Valley Project Improvement Act, it probably did a lot of good things and
probably was needed in a lot of ways but I don't think it's one of the chapters
in the Bible and yet that's how it's been treated, that you can't change
anything. You can't amend anything because the enviros are so powerful that

they'll stop it. I'll just give you one example. One example in the CVPIA is
called Tiered Water Pricing. And Tiered Water Pricing says that while the more
water you use then the higher the price is going to be. And the object is to get
people to conserve. Now obviously that's a very worthwhile motive. But the
problem with in the Friant area, we're a conjunctive use area. We use
underground water and we use surface water. So when you have surface water
available, you want to use all that you can so you save the underground aquifer
for the droughts and for when you need it. It's your bank account if you will.
Well if you apply Tiered Water Pricing to surface water and you're going to have
these guys pay more and more, the more they use what are they going to do? Well
we have some areas like in Chowchilla - and it's not now - but in early days
where it would pumping from 40 feet, okay? Maybe cost them 15 dollars an acre
foot or so to pump: pretty cheap. Well if I'm as a director I go out to them and
I tell them "Okay, we've got a lot of surface this year. You can use all the
surface water you can get. But we're going to help you conserve so as soon as
you get over two and a half; we're going to start charging you a lot more for
it." Well the farmers are going to say "Well, thank you very much for telling
me" and turn off his surface pump and go home and turn on his deep well. Well
that's not what you're trying to do here, you know? And so you know I've tried
for years to say "Look, let's amend that" and of course nothing gets done. I did
get away with when I was chairman for that first few years, we got audited by
the Bureau of Reclamation and they said "You're charging less, the more these
guys use. What are you doing?" And I said, "Well I'm just a farmer. I said you
know I must have read the chart upside down. I'm really sorry about that" you
know? You know, you do what you can for the overall best to society because
water is a public resource. It should be used for the public. Farmers shouldn't
waste it. Cities shouldn't waste it. And environmentalists shouldn't waste it.
So you know, I just think that the CVPIA, yes it did a lot of good but I think
we need some balancing looking at these things. And that's my problem with the
CVPIA is "Okay we've got it" but there's a lot of things that could be changed
that would make it more effective and better for society.
>> Glenn Gray: Well let's go back to the Reclamation Reform Act and can you talk
a little bit more about your involvement with that and how you got involved in - was this the first time that you testified before a Congressional?
>> Kole Upton: Oh I didn't get to testify that time.
>> Glenn Gray: Not that time.
>> Kole Upton: Right. You want to talk about that time or...
>> Glenn Gray: Yeah, let's go back to that and then kind of move forward.
>> Kole Upton: Well it was in 1982 and like I said what was on the table to me
looked pretty reasonable, okay? And it was going to give some water to the
environment and it we're going to be paying a little bit more for the water. But
it was something that we could have lived with, certainly on the east side. I
don't think the west side didn't feel that they could live with it or some of
them didn't anyway. And so they did not want to compromise at all. And they
pretty much were carrying the day. In those days, the Friant side, the east side
wasn't that well organized. And so you know, we just sort of sat on the
sidelines and let it happen.
>> Glenn Gray: And do you think that the environmental movement got stronger as
a result of say the Reclamation Reform Act and they were able to come together
and subsequently you had something like the CVPIA as a result of that?

>> Kole Upton: Definitely. Definitely because I think what happens when people
see the -- society in general sees that people are unreasonable and won't
compromise. That eventually that's going to work against you.
>> Glenn Gray: Yeah.
>> Kole Upton: So I think eventually it's going to work against the
environmentalists with their attitude on dams and everything that eventually the
people are going to say "You know what, there's got to be some balance here?"
>> Glenn Gray: Uh huh. Well at what point would you say that the entities on the
east side in Friant got together and became a stronger force? I mean, can you
describe your role in that as it were?
>> Kole Upton: Well I think it was in the ‘80s and the ‘90s as the prices went
up. CVPIA was passed and Friant actually - I wasn't involved then - but Friant
actually did a pretty good job on CVPIA in not giving up any water. Because what
they did is agree to pay a Friant surcharge of 4 dollars and then going up to 7
dollars per acre foot in order not to put water down the river. So we dodged
that bullet there. But Friant I think gradually got stronger. I think they were
strongest when they had Gary Sawyers as a lawyer. Dick Moss was the chairman -not the chairman, the manager. And Bob Bowman was the chairman. And it was a
pretty strong organization and they worked well together. They respected each
other. The directors ran the organization. The elected officials. I think it was
a pretty strong organization.
>> Glenn Gray: Okay, and can you describe your involvement with the Friant water
users and how you moved up in the ranks and took on the mantle of leadership, so
to speak?
>> Kole Upton: Well I'll go back to the -- remember the Chinese thing, The Gang
of Four? Well what happened was we had some senior members in Friant. One of
which was Johnny Massaro [assumed spelling] of Chowchilla. He since passed away.
But they were part of the Central Valley Project Water Association out of
Sacramento. Friant had 4 Board members. There were 16 total. And they came back
and basically told the Friant organization "You know, we don't understand what's
going on up there. You know, you've got these Bay-Delta things and it's just all
complicated. And we need some young guys to take over." So anyway, somehow I got
drafted into that. I was 1 or the 4. So 4 of us went up there and pretty much
tried to get Friant an equal representation within the organization and get our
viewpoint and our views and get that on the table. And after that, then I was
asked to take the vice chairmanship of Friant. And one of my friends Dale Sally
[assumed spelling] - he was the vice chairman - he was supposed to move up to
chairman but what happened, his father passed away and then he changed from
being a farmer. He went to be a manager with of the water districts. I told him
that he went over to the dark side but anyway that meant that he could no longer
be an elected official part of the organization. So he asked me if I would agree
to be vice chairman so I agreed to that. And when Mr. Bowman retired then I
moved up to chairman so that's how that happened.
>> Glenn Gray: Can you describe, what are the challenges of something like the
Friant Water Users Authority faces? Because as I understand it, it's an
organization that consists of 20-odd member agencies and it's got to be a real - really interesting to kind of keep everybody in line and have a united front
when you go out there and do your negotiations. So describe that a little bit.

>> Kole Upton: Well, it is interesting because your meetings consist of an
elected representative from each district. And then you have a manager from each
district you know. And some of the managers considers themselves as God's gift
to water. And if you don't believe me, just ask them. And there are others that
you know are willing to work and cooperate with everybody. So yeah it is a
challenge to get everybody on the same page and to work together. What helps is
if you have somebody that's attacking you. You know like if Westlands attacked
us like one time or the enviros, if you have a common enemy then it's pretty
easy. If everything's going smooth, then they're like a bunch of kids and
they'll start fighting with each other. And of course then you have to try to
control it.
>> Glenn Gray: Okay. Do you want to comment at all on the Zurich's issue? I'm
not sure if I'm pronouncing that right.
>> Kole Upton: Yeah.
>> Glenn Gray: But I came across an article about it.
>> Kole Upton: You talk about other people. Dennis Prospery [assumed spelling]
in Madera, he was the one that was the farmer next to the Zurich's. And he
actually hadn't been involved that much with water issues and that kind of thing
but he did an outstanding job of actually marshalling the opposition to that
because the plan was to take San Joaquin Valley water and send it to Las Vegas
or somewhere else. But I helped him a little bit in that we got a ground water
ordinance passed in Madera based on the Tehama County one that prohibited ground
water being exported from a county without certain rules and that kind of thing.
But actually that was one of my longer days because I was coming back from a
Friant meeting and I got this call from this guy I had never heard of, Prospery.
And he said "I've got to talk to you. I've got to talk to you." So I met him at
the Carl's Juniors in Madera. And like I tell him, I say my life hasn't been the
same since. He's one of those guys who's very forceful, very interested with a
lot of integrity in what he's doing and very passionate about what he believes
in. So I don't think there's any way you would have stopped that unless you had
somebody like him that was willing to organize and do that. So you know Zurich's
went down and that was actually Enron was first, then it was Zurich's.
>> Glenn Gray: Oh.
>> Kole Upton: Zurich's was a subsidiary of Enron.
>> Glenn Gray: Interesting, okay. And what exactly did your role in that consist
of then?
>> Kole Upton: I was a helper I would I say.
>> Glenn Gray: Yeah.
>> Kole Upton: You know, I tried to bring whatever I had with Friant and that
kind of thing to help him oppose that and whatever influence we had with
legislators and officials. And also to demand that it be done right. If you're
going to do it, you have to have the proper NEPA, CEQUA and all this other
stuff. In other words, use the same thing that the environmentalists use to stop
development or hassle us. Turn around and use the same thing to your advantage.
>> Glenn Gray: Okay, let's talk about the San Joaquin River Restoration lawsuit.
Now this is basically a 20 year story which it was just earlier this week

President Obama signed into law the Omnibus Lands Management Bill, which
includes the provision for restoration of the San Joaquin. And as I understand
the story, this goes back to 1988 when a lawsuit was filed. And you were very
involved in this story and you actually played a pretty important role in the
crafting of this legislation. And I think you've got an interesting and a unique
perspective on it so do you want to just take us through the various steps on
this story?
>> Kole Upton: This interview was going so well. [ Laughter ] Okay, well the
environmentalists in 1988, it was the day before Christmas, filed the lawsuit.
And they sued the federal government in saying that the Friant Dam when it was
built by the federal government that they had violated some law. They didn’t
quite figure out which one yet but they did something wrong. Anyway, so that's
what started it. And to understand that, you have to go back to the history of
why Friant Dam was built. The reason it was built was that in the 20s and 30s
this area was having problems because people were putting in pumps into the
aquifer but they were pumping it out. It was going dry so communities and farms
and stuff were having problems. Well the idea was to build a dam at Friant so
you could have some surface water so you could supplement the underground
aquifer. And initially the state was going to do it but very much like today,
the state was broke. So it fell to the feds and the feds built the dam. And in
so doing, Congress actually determined to dry up the river, you know at Gravely
Ford. You know? Now we can look back and everyone can second guess and say "Man
those dog-gone congressman, they shouldn't have done that." But they did it and
the idea was to give an opportunity for people after World War II and after the
Depression to try to change this desert into a garden so we could feed the
people of the United States and the world and also give an opportunity to
people. Well it's a government program that worked remarkably well. I mean it
played by the rules. You end up with a million and a quarter people embedded in
the Friant service area, 15 thousand farms and a very robust society. Okay? So
anyway the enviros sued and kept suing. And finally on their seventh amended
complaint is when they hit pay dirt. They told the judge that you know "Forget
the other 6 times we came to you but this seventh one, we're really serious
about this one. 5937 state law was violated. It says there's supposed to be a
viable fishery below every dam." Well we have one below Friant. It goes about 40
miles. The judge opined that "You know what, that's right. You know, that's not
good enough." And furthermore that whatever is restored has to be -- has to
resemble the historical fishery. In other words a self sustaining salmon fishery
which requires the coldest water and the most water and it's the most expensive:
anything else, not good enough. So that's what happened. Well we went to the
Ninth court. We tried to get heard by the Supreme Court. They turned it down.
And basically what that said was "Yeah, 5937 is applicable." That was our first
offense. So anyway, then it went back to the judge. Well before the judge could
schedule a remedy hearing, we decided in our infinite wisdom in Friant, we'll
try to negotiate with these guys. So we called them up and I remember this till
my dying day, but we got on the airplane, rented an airplane, we all dressed up
in suits and everything. And we flew up to the Oakland Airport, Oakland
Executive Airport. And had a little room there and we all walk in there and you
know here come the enviros with their Birkenstocks and everything else, you
know? And we actually had a pretty decent meeting. I mean some of the guys I
actually got to know pretty well and they're fairly decent people. I mean I may
not agree with them but they seem to be fairly decent people. Well this went on
for 4 years that we negotiated with these guys. And we almost came to an
agreement but didn't quite make it. So but I can remember some of the days, and
one in Visalia, where Mr. Kandee was the head of NRDC and he had got on his high
horse and opined that we were law breakers and that people downstream, they were
probably law breakers too. And later in the meeting he said "Well we need you to

go talk to those guys about what they're doing wrong." And I said "You want one
criminal to go talk to another one?" I said come on now. You know?
>> Glenn Gray: [Laughter]
>> Kole Upton: And so anyway we had a -- there were a lot of stories there, more
time than we have here. But anyway, after that broke down then it went back to
court and we were there for awhile. And then the judge decided he was going to
have what's called a "remedy hearing" and that's -- he was going to decide how
much water he was going to take. And I don't remember what year it was that,
that was supposed to start, but it was on Valentine's Day. I assume that's a
little humor the judge wanted to do but that was supposed to take 6 to 8 weeks
and then he was going to tell us how much water we were going to lose. But prior
to that happening, Senator Feinstein and Congressman Radanovich apparently
entered the fray and asked Dan Dooley - one of the lawyers of the Friant Group to see if he could negotiate with the enviros and come up with some kind of a
plan that would release water to have a reasonable chance for salmon
restoration, but also would mitigate the Friant services losses so that the
Friant service area would not be decimated by this, this program. Apparently the
Senator and Congressman at that time felt that there was something worth saving
here in the east side. Well this went on for awhile I guess, but I found out
later that it had gone on quite awhile before I ever got involved. But Mr.
Dooley called me one day and asked if he could meet me. And I was harvesting
corn and he came out and said "You know, we would like you to be involved. And
you can be Congressman Radanovich's representative." He says "I'm Senator
Feinstein's representative." Well I said "Okay, but I first talk to the
Congressman." I said "Okay, I'll do it but there's a couple of conditions.
Number one is I'm going to surround myself with people that are involved in the
water issues in your congressional district so that I'm not doing this by myself
so I can relate to them. And I did. Prospery was one of them. Ken Robbins from
Merced was one of them. Chris White over in the change contractors, and there
were various people that I dealt with and that I bounced things off of back and
forth. And so we would meet. Dooley and I and Hal Kandee from NRDC and a guy
named Phil Atkins Pattinson [assumed spelling] who was the private lawyer for
NRDC would meet. And that went on for quite awhile and we actually came to an
agreement. Let's see, that started in June I think and by December we'd reached
a conceptual agreement between NRDC and Friant. And so we took that back to the
Friant board and they said "Yeah go ahead, keep going." And then we had to bring
in the feds because the feds are the third party and we brought them in so now
it was a 3 party deal. And that took quite awhile but we got through that. And
then we had to bring in the so-called third parties, okay? The third parties are
people might be affected by this and the rules were that no third party should
have a material, adverse impact inflicted on them as part of this settlement.
Okay well, who determines what a material, adverse impact is? As well as my
view, the only ones that can determine that is the third party itself. I mean I
can't to somebody and say "Well, we're going to do this to you and I say it
doesn't materially affect you." Well okay, so that created a little bit of
friction but we got through that. And finally on September 13th, 2006 the deal
was signed and it was submitted to the court. And the agreement was we're going
to have 2 goals: a restoration goal and a water management goal. And one of the
things that Dooley and I had consistently talked to Friant about and talked to
our districts was that, and like the city of Fresno and these other folks that
were non-Friant members but Friant contractors was when this is done, we'll get
together everybody that's a Friant contractor, and we'll figure out how to do
the losses and how to do what we're going to get back so that everybody gets
treated fairly. For instance, there's districts along the mountains over on the
east side that have no surface -- no groundwater. So in a drought or short water

year, they got nothing. So they have to be taken care of in those years. So they
would have to have first call on the surface water rather than say Chowchilla
which has some ground water, okay? But conversely then in years when there's wet
years, the districts that have recharge capability, they're going to have to get
some water to help them out themselves. Well when Dooley and I brought that to
the Friant board October 2006, some of the managers said "Well, you know that's
great that that's what you promised, but we're not going there. You know, it's
going to be every man for himself." So that didn't go over too well with me but
you know there's not a lot I could do about it nor anything I can do about it
yet but we are going to do something about it. The fact is the way it ended up
now is my district loses 33 percent of our water like last year. If it had been
a full restoration year some of the districts are only losing 5 to 8 percent. So
you have this thing of 67 percent of the Friant service area has huge losses and
other parts are not affected that much. Well that's not what was envisioned by
this plan. When Senator Feinstein and Radanovich put this together, they said
they wanted about 15 to 17 percent Friant losses, okay? Now I assume that meant
15 to 17 percent across the board, not 33 percent in one area and 5 percent in
another so you know that's not something that I felt was a fair allocation. But
so far I've been unable to get the legislators to do anything about it because
they say that's an internal Friant problem and the people that are the benefit
of this inequity; they're unwilling to change either. So that's one point. The
other thing was that the recirculation model which we had to get some of our
water back - part of the water management goal - well that's basically
[inaudible] by the Delta lawsuits that were filed by NRDC. And the reason that
that is I think a -- disingenuous on their commitment to help us get our water
back is the fact that when they submitted these lawsuits, it has the effect of
meaning we can't get our water back because we're such a low priority. And with
Judge Wanger in Fresno making his decisions which I'm not blaming him. He has to
follow the law. We're just not going to get our water back. So the problem
specifically was that a guy named Peter Gleick testified for NRDC that to George
Wanger, "Don't worry about these west side guys losing their water. We can take
water from the Friant cities and we're going to mitigate their losses." Whereas
they're telling Judge Carlton of Sacramento, "Hey Judge, don't worry about these
Friant guys. We're going to help them get their water back." Well you can't have
it both ways here so that to me was a violation of the good faith that we had at
trying to put this thing together. Now Mr. Kandee claims that you know it was an
innocent mistake that the NRDC office at one end didn't know what the other was
doing. Well you know, I don't want to have my future based on whether one part
of NRDC's office knows what the other's doing or not. So anyway, in an effort to
try to make things whole or better, I approached Congressman Costa and other
folks and said "Why don't you as Congressmen, since you're writing the laws, why
don't you make a warm water fishery or extend the fishery we have now and let's
study if we can do this salmon fishery. I'm not saying don't restore the river.
Everybody wants to restore the river. I'm not against that. But we can't do it
in a way that's going to decimate the east side. So why not have an interim
proposal here and see what happens?" No, can't do that. NRDC won't go that far.
We won't go for it. Even Friant wouldn't go for it. So that was pretty much the
end for me as being in Friant and my district Chowchilla being in Friant. So the
people there think that any settlement is better than going back to court. And
I'm not sure that that's true anymore. It's a moot point now because the bill's
been signed. But the fact is if you're not getting your water back and the
enviros are violating what they agreed to then it doesn't look good for a long
term program. The other thing from society’s point of view is "Are the salmon
going to come back or aren't they?" If you're going to spend a billion dollars
and you're going to take 225 thousand acre feet of water that's currently being
beneficially used, what's it's going to return to you? What's the return to
society? Well supposedly 500 fish are going to come back, pretty expensive fish.

But if you read NRDC's own in audit paper that was published in 2007, they say
that fisheries that are on periphery of viability now are not going to make it
because of global warming. Well the San Joaquin is the southern most salmon
fishery that existed. Okay, so let's wake up here, you know? I go back to what I
said about CVPIA: balance, okay? Balance. This is, water is a public resource
you know? And nobody should be abusing the right to use that water. It shouldn't
be the farmers. It shouldn't be the environmentalists or anybody else.
>> Glenn Gray: If you could go back, what would you do differently? Then once
you started these, the lawsuit hit and you were involved in the negotiations,
how would you have handled yourself now that you know what's transpired?
>> Kole Upton: Well that's a good point because I've thought about that a lot.
Well I would have probably asked more questions because I didn't find out until
later that Congressman Radanovich and Senator Feinstein, before I ever got
involved had taken Temperance Flat off the table. They'd taken the warm water
fishery off the table. Okay, so what I was left, was negotiating with not very
much to negotiate. And the part that was also particularly bothersome to me was
when it was after October 2006 after the thing was signed, we started going into
Congress and then it was supposed to be signed in December 2006, didn't happen.
Then the Democrats got control of Congress and you had these pay-go problems.
And I kept finding out that they were having meetings and calls and I wasn't on
them anymore. And so I asked Mr. Radanovich in Coalinga because [inaudible] I
said, "What's going on" you know? And I said "I'm being excluded." And he said
"Yeah, yeah I know." And I said "Well why?" And he said "Well, we're into these
D.C. matters now and pay-go” and he says "You're really not qualified or
competent in that area so you know we're just moving ahead." And I said,
"Congressman." I said "You know, if the qualification was competence and
intelligence on water matters and agriculture" I said "the room would have been
empty a long time ago." I said "I've got to be in the room if I'm going to you
know be able to represent these people" because Dooley by that time had moved on
to the University of California. Well nothing got better so I, you know I wasn't
going to be a party to it anymore so I resigned as his representative and you
know because I can't have my name used for something that's not, where I'm not
even involved.
>> Glenn Gray: Yeah.
>> Kole Upton: Anyway, things went downhill from then but I would have asked I
think earlier before I took the thing you know "What's been negotiated away
already? What are the rules?" That I was a little bit too trusting I think.
>> Glenn Gray: At what point did you leave the Friant Water Users position that
you held, chairman?
>> Kole Upton: Yeah I was chairman. Well what happened, it was sort of
interesting. I went to a meeting and during the meeting the manager got up and
said that a committee had decided to have an election you know. And we hadn't
had an election in I don't know how many years. And that's fine. That's fine.
And that I was supposed to give, to have a nominating committee and I said
"Fine." So I just nominated 10 people, whatever, which was fine with me. Anyway,
then they had several, I think one or two nominees. And during that time there
was some other activities that happened where some of the Friant people had
ended up in our area and it was going to threaten some of the things we were
doing in Chowchilla Water District by some of our neighbors. And so I pretty
much had enough at that point and I just called the nominating committee who
were good men and women and I said "You know what, continuing to be Friant

Chairman is not consistent with my elected duties as a Director of Chowchilla
water issues so I'm going to withdraw my name." So I withdrew my name and then
shortly thereafter the district withdrew from Friant as well.
>> Glenn Gray: So what's it like now that you're sort of on your own I guess in
a way with your district now? Is it -- do you feel like you've lost something?
Are you in a weaker position now or are you just glad that you're not part of
something that you no longer agree with? I mean what's your feeling?
>> Kole Upton: I feel great.
>> Glenn Gray: [Laughter]
>> Kole Upton: Okay, yeah we've been working locally with a lot of the other
districts in our area, concentrating on ways that we can survive post
settlement. And doing a lot of work in the Merced area with the Spear of
Influence [assumed spelling] guys, with Merced ID, with Le Grand [inaudible] and
-- yeah, no I'm really enjoying it. I probably should have made the move a
couple years prior to that.
>> Glenn Gray: Well, another, another that you were involved with when you were
with Friant Users was this issue with, with Westlands earlier in the decade. So
could you talk a little bit about that whole story and the negotiations there?
>> Kole Upton: Yeah, that was interesting. I sat down for lunch and I got a call
from our manager Dick Moss. He was in Sacramento, he was a Friant Manager. And
he said "You're not going to believe what Westlands just did." You know? And he
told me and he was right. I didn't believe it. You know, in respect to
Westlands, they were in a tough position okay, and they had to do something to
try to help the growers. And the fact that we just didn't agree with what they
did or the mechanism or you know the timing of it -- because we were actually
sitting with them and negotiating with the bureau on something that was of
common interest to both of us. And then to find out that they were across the
capital in another venue doing this was sort of a shock. So yeah, those were
some very tough times in the valley because it split a lot, a lot of people. And
eventually what happened - and this is why elections make a difference - the
board members at Westlands changed. And actually that's when I think Dan
Rotterbery [assumed spelling] came in as chairman. And Dan and I had been on the
California Wheat Commission together so we knew each other and we sat down at a
couple times and said "You know, at some point we need to get beyond this." And
what we did is we called a meeting of just directors and asked the managers and
lawyers to leave. And sat down and we were able to work it out and move forward
so that we had sometime of cooperative arrangement to get past this because it
doesn't help to have people in the valley fighting with each other, you know?
You ought to have enough respect for each other that you could see the other
guy's problems and try to help him. I mean if they don't, then you do have to
fight. But I think Westlands realized that it was probably what they did was
probably viewed by us as an attack and they needed to work with us.
>> Glenn Gray: Could you talk a little bit about the whole - you've mentioned it
but - could you describe in a little greater detail the whole exchange contract
issue and how that affects the people on the east side such as yourself?
>> Kole Upton: Sure. Again, you go back in history and the exchange contractors
are the descendants of the whole Miller and Lux family. I told the old timer
that went out there with his rowboat and was sticking flags here and there and
got his water rights. But anyway, they get - I think it's 840 thousand acre feet

a year free - it ends up they get 4 acre feet free every acre that they have.
That's the law. You know and some people in the years when I was Friant Chairman
would say "Well, that's not fair." I said "No, if we wanted those rights we
should have been named Miller and Lux or something. So we're number 2 coming out
of Friant." Now in all the years that they've had this exchange contract,
they've never called on the Friant water because they've always been able to get
it out of the Delta. They made an agreement with the government when the
government built Friant Dam to exchange their rights in Friant for water coming
out of the Delta. My understanding is it's a little more secure a supply and
this kind of thing. But in that agreement is the fact that if they don't get it
out of the Delta, then they can call on the water out of Friant. Yeah, I think
they can get up to 75 percent: about 660 thousand or so acre feet. And it
appeared that this year that was going to happen because of the shut down of the
pumps and that kind of thing. And that would have a devastating effect on our
area, especially with this river restoration, because what you have now you have
without river restoration you had the riparian folks which take about 119
thousand acre feet a year. And then you start into the Friant Class I and then
the Class II. Well now if, now you have somebody else that's elbowed their way
to the front. You know, NRDC has now elbowed their way to the front. With their
- 225 thousand acre feet average - now if the exchange contractors if they can't
get their water from the Delta then they come in. So now you've got - instead of
1 guy ahead of you at 119 thousand - you have maybe close to 8 or 9 hundred
thousand acre feet that could be ahead of you. So you may not be getting any
water at all.
>> Glenn Gray: So my question to you then is how do you sleep at night when
you're living in a drought conditions and somebody, somebody you know could
exercise their right to your water? I mean it's got to be really difficult for
you to know that you know a decision could come down and you'd really be out of
water.
>> Kole Upton: You know, one of the things that I've done over the years is
coach baseball. I really enjoy it. I really enjoy working with kids. I haven't
been able to do because I've been involved in stupid water. But I actually
coached a high school team one time as an assistant with, at Chowchilla when my
son was there and we won the valley championship which was great. But the head
coach had something, he was a young guy - but he had one thing that I've always
remembered. I know he didn't think of it but it's "Don't worry about things you
can't control." You know, so I can't control whether the exchange contractors
have to get their water out of Friant. I don't have that power so I'm not going
to worry about that. If it happens, it happens. What I can control on my farm is
my deep wells, so over the past 5 years we have retooled all our deep wells.
They're all in good shape so that if we don't get any surface water, we will be
able to survive you know, for awhile with the underground aquifer. Now the only
solution to this restoration on the east side is about 2 to 300 thousand acre
feet, acres is going to have to go out of production. There's no other solution.
Alright, so that means whoever has the deepest wells right now is going to be
the ones who survive and you know, that's just the way it is. So that's what -I don't worry about that at night because I don't have any control over it.
>> Glenn Gray: Do you have any issues with subsidence in your area?
>> Kole Upton: No we don't, not right now. It was interesting because I was
asked by Congressman Nunes the other day to speak in Tulare to his elected
officials like city councilman, school district, etcetera. And the other guy on
the podium there was; one of the other ones was Ken Schmidt. He's from Fresno
State as well and he's the, that's the guy you ought to talk to, he's an expert

on the underground aquifer and I've learned something from him that I didn't
know and that is that there's different types of aquifers and some of them are
susceptible to subside and some of them aren't. And apparently a lot of what we
have on the east side is not susceptible to subsidence so; I mean that was good
news for me. So if you do have the ability to bring it in and restore it, then
that's good.
>> Glenn Gray: Alright, let's talk -- you've mentioned some individuals that
you've worked with along the way. Are there any in particular that stand out to
you as having been particularly helpful over the years? That just you know you
look up to as models of either people you worked with or people you worked for
on these issues?
>> Kole Upton: On the water?
>> Glenn Gray: Yeah.
>> Kole Upton: Well you know, I've always been a person ever since I was young
that looked up to older people and listened to them. And most of the folks that
you know are gone now. I mean I remember Bob Denelli [assumed spelling] as the
Chairman of Chowchilla Water District. Before he died he called me out to his
farm and he gave me all this stuff and he says "I've done the best I can." And
he said "It's up to you to save our water now." You know, so I'm not sure I'm
doing that good of a job but he was a leader. Johnny Massaro was a leader. My
dad was a leader. And those are the folks that; I look at local folks that have
made a difference because I think that's where it's about in trying to protect
water here in the valley. If the local folks don't take the time to speak up and
stick up, then we're going to be out of luck because I think this river
restoration is a perfect example of a total lack of leadership on a local level,
on the state level and on the federal level.
>> Glenn Gray: Well, let me ask you then about your views about the legislators
that you have seen; not necessarily the current ones, but over the years that
you've worked with, are there any there that stand out that you think were
really good examples of people that helped you with your issues?
>> Kole Upton: Well you might find this odd but the person that helped me on the
Westlands was Senator Boxer you know who probably I don't agree with her on much
of anything, but on that issue I actually got no help from our Congressman, got
no help from Senator Feinstein. So I actually went to Tom Bohegan [assumed
spelling] who's another interesting guy here from Fresno who was Boxer's aid. He
came out to the ranch. I explained the situation we were up against and she
actually stood up for us. And apparently, I'm told they told Feinstein "Hey, we
can't do this." Because there was some legislation at the time which was going
to guarantee them a certain percentage of the water which would basically do the
same thing as what the application would have done. So that's one and you know
there's so many I'd hate to you know pick out, but the one that I'm really
impressed with is Congressman Nunes. And I didn't even support him when he first
ran, not that it makes any difference who I support. But I remember him coming
to a Friant meeting and I was chairman. And he came in and he gave this talk and
one of our lady directors, Lucille asked him a question and he couldn't answer
it. And it was about water. And she basically said "Well you know, if you can't
answer this I'm probably not going to vote for you," and she was in his
district. Well he came out he was a little bit you know a little bit upset with
me and he was sort of taking me to task a little bit for the question. And I
said "Congressman, you're coming to a water group." I said, "What did you think?
It was going to be questions on abortion" or whatever. Anyway, to his credit he

said he wanted a rematch. And he came back and I mean he blew us away. He knew
it and ever since then I mean he's not afraid to say what the truth is and stand
up for his districts. I have a lot of respect for the current group. Hardly
anybody holds a candle to him in my opinion.
>> Glenn Gray: Well what is your assessment looking forward for the future
course of water here, here in the region? What's your take on it where we're
going?
>> Kole Upton: Well like I said, you're going to have to have 2 to 3 hundred
thousand acres that's going to have to go out of production. That's in order for
the cities to survive and for the industries that are non-ag to survive. And you
know whether it's voluntary or involuntarily, we'll see. I think now that this
river restoration is over, I think you're going to see some increasing tension
and some internal fighting in the valley over water supplies and over water
rights and that kind of thing.
>> Glenn Gray: Why don't you tell us your thoughts about Temperance Flat?
>> Kole Upton: Temperance Flat you know it's -- I know Congressman Nunes says
it's not feasible anymore but I've never thought that it was sinful for a
society to invest in its own infrastructure. For instance, when I leave here and
get on Shaw I don't have to pay a toll. Okay, it's not a toll road. It's been
paid for by the tax payers. And it seems to me that having something at
Temperance Flat that could store more water, that would give us flood relief
here so we don't have a 1997 or 2006 like we had where a lot of people lose
their houses and that kind of thing, and you would have water available. It
seems to make a lot of sense. Now when I proposed Temperance Flat as part of the
negotiations, you know I thought Mr. Kandee was going to have a heart attack but
the fact is that would have given you cold water for the fish restoration
because the bigger the dam is, the colder the water. Okay, that would have
helped. It would have solved our water management goal because then we would
have the water there during the wet years that we could have available. But no
we couldn't have that. So it's probably not going to get done, but I think if we
get some people that are looking at things in balance and thinking what's best
for our society in the future, I think it would because it's not a big
environmental imprint up there. And I just think it makes a lot of sense. It was
supposed to have been built there in the first place but for some reason, it
wasn't.
>> Glenn Gray: Alright, are there any things that we haven't addressed today
that you think are worth mentioning that you'd like to have as part of the
record that would be important for future generations to know about your era of
here in the valley, working with these water issues that you've seen and
experienced?
>> Kole Upton: Well I think one of the things is that you need to take into
account the people that are actually using the water. I'll give you an example.
One of the things that water districts do is they run their water through dirt
canals okay? And in so doing you lose a certain amount of that: 20, 30 percent.
It goes into the underground. It helps sustain the aquifer. Okay, there's views
by some environmentalist well you need to line all these canals so none of that
water you know gets in the ground. Well you're defeating the very purpose of a
conjunctive use area, okay? And so I think before people look at these real easy
solutions and what sounds good, they need to talk to the folks on the ground and
at least consider what they have to say because I go back to the basic thing

that water is a public resource and it ought to be used intelligently by
everybody.
>> Glenn Gray: Any other issues that you'd like to mention?
>> Kole Upton: Not right now.
>> Glenn Gray: Okay, well I thank you very much for your time. It's been a
pleasure and very interesting and we appreciate you're taking the time to talk
to us.
>> Kole Upton: Great, you're welcome. Thank you.
>> Glenn Gray: Thanks.
>> Kole Upton: Alright.
==== Transcribed by Automatic Sync Technologies ====

Item sets

Water Archives Set