On my first visit, as a boy scout, we hiked on Hetch Hetchy Reservoir’s north shore. It didn’t occur to me to wonder why a dam or, for that matter a reservoir, were in a park. I just never thought anything about any more than I do today about seeing the Arch Rock at the West Entrance…it is just part of the park. It was a delightful day. We were told that swimming was not allowed in the reservoir. I remember being curious why they’d put a reservoir in a park and not let anyone use it. It wasn’t an overwhelming curiosity. I mean, I was 12. There were all kinds of rules about all kinds of things I didn’t understand.

Comparatively recently (in the last 10 or 12 years), I saw an old photograph of Hetch Hetchy Valley. It stopped me dead in my tracks. Why would they bury a valley like that? In a park? But, sure it’s a mystery. Nevertheless, the rest of the park was so pretty (and it was not like the reservoir didn’t have its own charm), I just never gave it much more thought. Somewhere along the way, I heard about Restore Hetch Hetchy (see HetchHetchy.org), and, “Jump back,” I thought, “there is actual attempts to restore the valley?”

For unrelated reasons, I began looking at the various historical aspects of the park and ran across the whole business of San Francisco’s search of a municipal water (and power) source and their perceived beauty of Hetch Hetchy Valley as vessel for that water. I’ve discussed this before with various posts. On the page “Yosemite History” there is the section called The Plight of Hetch Hetchy; there is the July 8, 2015 post, Hetch Hetchy – The Unsung Hero of the National Park Service…; then about a month later, August 6, 2015 post, Restore Hetch Hetchy Valley. Then What?

Throughout this time, Restore Hetch Hetchy[i] has been working to publicize their efforts to get Hetch Hetchy Valley restored and, once again, for it to become “…one of Nature’s rarest and precious mountain temples[ii]….” In 2012 they worked to get Prop F on the Ballot in San Francisco, an initiative to get San Francisco to merely consider how the valley could be restored and still retain the water it once held. The initiative failed.

Their current efforts are focused on the court system. On April 21, 2015 (John Muir’s Birthday), a petition was filed by Restore Hetch Hetchy in Tuolumne County against the city and county of San Francisco. The petition claims that the reservoir violates the California Constitution in Article X, Section 2 which requires the “method of diversion” for all water use must be reasonable. It claims the recreational value of the restored valley is estimated up to $8.8 Billion and the cost to restoration is only (approximately) $2 Billion (both measured for 50 years).

The petition asks that the ruling declare that Hetch Hetchy Reservoir in fact violates California Law and that San Francisco make detailed plans for water system improvements to make restoration possible. Restore Hetch Hetchy also “recommends” that San Francisco be given enough time to make said improvements. Details of the on going battle can be found at Restore Hetch Hetchy’s website (www.HetchHetchy.org).

I want to take a step back and try to look at this situation with an unbiased eye. That is not easy because I’m totally in favor of restoring the valley. And, on top of that, I don’t care how it is done. One of the things I find interesting about this is there is no “bad guy” here. At least, there wasn’t initially.

What we had were two entirely different points of view, neither of which were at all sinister. San Francisco had a very really need to obtain and control their own municipal water and power supply. By the end of the 19^th century, San Francisco got out from under the financial stranglehold of third party utility vendors and the corrupt politicians that kept them in place through the efforts of San Francisco’s new mayor, James Phelan.

They then took on finding a new source of water and after discounting 13 other sites located in and around Northern California, they settled on the Tuolumne River. However, they didn’t have rights to it. In fact, there was no mechanism to get rights to it. Until now, municipalities gathered water from more local sources.

In 1901, the Right-of-Way-Act was passed which was a bill to allow for rights of way through Parks, and other government lands for all kinds of public utilities (phone, telegraph, electrical sites, pipes, and “…about any purpose whatever…” according one critic.[iii]) This act was initiated by Mayor Phelan of San Francisco and was basically walked through the house and senate on his behalf by California Congressman Marion DeVries of Stockton and Senator George C Perkins from California. Upon its approval, James Phelan immediately used it to claim rights to the Tuolumne River (for himself, as it happens…though he later gave it to San Francisco) before hardly anyone else knew the act even existed.

You might call that a bit of shenanigans. But I would argue that is EXACTLY the way this country is supposed to work. Anyone can write their own bill and can, with the help of congressmen and/or senators, put it before the whole congress and get it enacted into law. It was an action like this that Galen Clark was able to get the Yosemite Grant incorporated.

Now, just because the law is there and they have used it doesn’t mean they have the water rights. In fact, it took a while before they actually got the rights approved. Though the claim was made, Ethan Hitchcock was Secretary of the Interior and wasn’t so sure that water rights should be granted within a National Park. Additionally, San Francisco and Yosemite had gone head to head on occasion. On one such occasion in 1896, a group from San Francisco consisted of lawyers, businessmen and budding politicians were camping near Hetch Hetchy Valley and were intercepted by an Army Patrol and discovered that they carried loaded pistols and rifles. This was (and still is[iv]) contrary to park regulations. They were arrested for this infraction AND, resisting arrest, they were marched down to Wawona (the then park administrative office), a three day march, and were verbally reprimanded by Colonel Young, the park’s chief administrator. These men took exception to the berating and upon returning complained to US Senator George Perkins (of California). Perkins drafted a strongly worded letter to both the Secretary of the Interior and Secretary of War demanding disciplinary action against Colonel Young for the berating. This went nowhere, but did identify the first incident in what would become, at best, a lukewarm relationship between the park and San Francisco, which lasted into the 1930s.

Finally, in January 1903, Hitchcock denied the request and then the appeal (spearheaded by City Attorney, Franklin K. Lane) in December of the same year. Interestingly, San Francisco began to survey and pursue alternative water sources at this time. They figured Tuolumne River and the Hetch Hetchy valley just wasn’t going to happen. But then on April 18, 1906 at 5:12 AM everything changed. By today’s standards, an earthquake of magnitude between 7.9 and 8.3 hit San Francisco. The devastation from the quake itself was certainly significant, but the vast majority of the destruction was from the fires that followed. With very little water at the city’s disposal and broken pipes that would fail to deliver water even IF there was an adequate water supply, the city burned. This created a tremendous amount of sympathy from, not just the surrounding towns, but from all over the country and the world. “Offers of assistance from individuals, cities, and governments appeared daily[v]…”

The current city engineer (c 1906), Marsden Manson, knew now was the time to refocus on the Tuolumne River and Hetch Hetchy Valley. He sought help from the US Chief of Forestry who suggested that the new Secretary of the Interior, James R Garfield[vi] may be more receptive to San Francisco’s claim. He was receptive and in 1907, approved the claim to the Tuolumne River. Now the only issue remaining was getting authorization for the dam.

Late in 1908 an attempt was made to get congressional approval for putting up a dam to capture the water from the Tuolumne River in Hetch Hetchy Valley. It was tabled in 1908 after presentations by John Muir’s people. But an new effort was put forth in 1913 and the Raker Act was passed (see my July 8, 2015 post for some details on that). “So that,” as they say, “is that.”

I just don’t see the bad guy here. I can see an argument that the Freeman Report used oversimplified and misleading promises on what San Francisco would do to enhance the park. I don’t see a road surrounding the reservoir. I don’t see a hotel and camping available overlooking the water[vii]. I don’t see the swimming and boating and other water activities alluded to during the debates. I know some of that was “bartered” away by the park service itself in exchange for San Francisco’s financial help in completing the Tioga Pass Road. But what I do see is a retreat for VIPs of San Francisco:

What’s up with that?

And what about the fact that after the approval was made for the dam, San Francisco made plans to restrict access to any part of the backcountry near the Tuolumne River!  They felt that not just the reservoir, but the entire watershed was theirs! But beyond that, San Francisco has rights to the Tuolumne River and, by an act of congress, authorization to build the dam. So that fight is done. Period. This could be why Dianne Feinestein and those others after the fact consider the Tuolumne and Hetch Hetchy their Birthright.

This legislation sealed the fate of Hetch Hetchy until the late 1980s when Secretary of the Interior Donald P. Hodel (under Ronald Regan) suggested it would be advantageous to do a feasibility study of restoring Hetch Hetchy Valley. This whole episode was somewhat ironic. Restoring a wilderness area to its original scenic beauty is not characteristic of what one would expect from a Republican administration. Further, and just as ironic, was Dianne Feinstein, Democratic Mayor of San Francisco was totally against even making a study. It’s not surprising the Mayor of San Francisco was against it, of course. But Democrats in general and Northern California in particular, are all about being “green” and getting back to Nature. As it happens, Hodel wasn’t the “tree hugger” his suggestion implied. He was speculating that, IF Hetch Hetchy Valley could be restored, and built up like its sister, Yosemite Valley, the restored valley could be used to off load the traffic in the Yosemite Valley. The park hit the 3 million visitor mark that year and within 10 years would hit 4 million visitors for the first time. The vast majority of visitors to the park stay in the Valley. Regardless of the motivation, Feinstein, as the mayor, had no interest, what so ever in restoring Hetch Hetchy Valley. To her that meant removing the dam and the water it held and access to the watershed that supplied it.

However ironic its start, the movement grew. In the next couple of years, Hodel’s office ordered studies on Water and Power replacement concepts and on restoration alternatives after the removal of the dam and reservoir from the valley within the existing budget. At about the same time, the Sierra Club launched a Restore Hetch Hetchy Task Force to advocate for restoration. But it only lasted about a year when it culminated with a display for restoration at the Yosemite Centennial Symposium (1990). Minor steps kept the concept of restoration alive for about the next 10 years, which included another task force spawned by the Sierra Club and, eventually the formation of “Restore Hetch Hetchy” (www.hetchhetcy.org) in 1999[viii].

Then from 2003 to about 2006 the State of California developed some studies on the mechanics of storing the Hetch Hetchy water elsewhere, dismantling the dam and restoring the valley. The conclusion was that more studies were needed and that it would have to include input from the, not just the state, but from San Francisco, The Federal Government (the National Park Service and Yosemite, itself), Native American Tribes and other public input. Areas of further study included details on dam removal, valley restoration, public use and benefits of restoration.

Restore Hetch Hetchy, early in 2009 moved from Sonora to San Francisco to start a campaign to educate San Francisco on the advantages to the city for its water and power if the system were overhauled to store the Hetch Hetchy water elsewhere. That effort culminated with the defeat of Proposition F in November 2012 that proposed San Francisco make a feasibility study of how to drain Hetch Hetchy, still retain the water and maintain its power generation. A few months later a poll was taken that showed increased support for restoration, but still somewhat ambiguous[ix]. Since then, Restore Hetch Hetchy has concentrated its efforts to restore Hetch Hetchy through the legal system the current status of which is displayed above.

The debate 100 years ago was technically and, as it happens, critically won by San Francisco. They engineered and put into play the 1901 Right-of-Way Act that allowed them to, eventually, get claim to the Tuolumne River (in 1907). They then applied to create a dam at the mouth of Hetch Hetchy Valley and were denied in 1908 after a long debate with preservationists like John Muir and William E Colby. But it was successful in 1913. So history has declared that San Francisco has these rights. True, by the “spirit” of the National Park Act (“…for the benefit and enjoyment of the people…”), maybe it shouldn’t have. But it did. One thing this country doesn’t do is pass “ex post facto” laws (legalize for “you can’t go back in time”)[x].

In July of 2014 my brother, cousins and sons all met in Yosemite for a weekend of air, relaxation and hiking. One of our treks was to Hetch Hetchy Reservoir. I was explaining what I had found out about the flooding of the valley and lamenting the loss. My cousin said, “But I’m seeing a greater good for more people.”

I resisted the urge to beat him senseless and leaving him the brush for dead. First of all, I couldn’t do it. He’s bigger than me and would have pounded me. Secondly, I’d get caught. Third, it wouldn’t solve anything. Finally, it would be wrong. But I was caught flat footed. Here was a reasonable person that just disagreed with the nature of the situation (pardon the pun). As far as I know, he wasn’t considering beating me senseless for my thoughts. So, I didn’t say anything. I just was shocked that he could even consider desecrating a scenic wonder as a minor consequence of a “greater good.” He wasn’t a “bad” guy…he just disagreed.

It’s taken a couple years, but I see where the argument now lies. The one waged 100 years ago was “In this case, do the needs of the many (San Francisco water and power needs) out weigh the needs of the few (those that would enjoy this section of the park)”. If we were to ask that question again, we run smack dab into the ex post facto problem I mentioned above or, more specifically, “Asked and answered.” But backing up a bit, things aren’t the same now as they were then. San Francisco has the water…that’s not in dispute. Restore Hetch Hetchy is not trying to take that away. The proposal is to store the water elsewhere, downstream, allowing the dam to be removed and the valley restored. It is not even going that far. Up to this point Restore Hetch Hetchy has simply “requested” that San Francisco merely do feasibility studies. Though San Francisco’s response that the costs in such a study may have been exaggerated, I would argue that ANY amount of money spent looking at ways to change a legally founded, working system, would be fiscally irresponsible. But if it could also be shown that there is already a fiscal violation in the bigger picture, then Restore Hetch Hetchy could prevail on this suit. At least that way, all interested parties can get to the bargaining table. Then, it won’t be IF Hetch Hetchy Valley is restored; it will be HOW and WHEN.

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[i] Restore Hetch Hetchy at www.HetchHetchy.org stated mission is: “…to return the Hetch Hetchy Valley in Yosemite National Park to its natural splendor ─ while continuing to meet the water and power needs of all communities that depend on the Tuolumne River….”

[ii] The Yosemite, John Muir, as found in John Muir: The Eight Wilderness-Discovery Books, Diadem Books, First published 1992, printed 2000. Chapter 15, Page 713. The Yosemite originally published 1912 by The Century Co. In describing Hetch Hetchy he says, “It appears, therefore that Hetch Hetchy Valley, far from being a plain, common, rock-bound meadow, as many who have not seen it seem to suppose, is a grand landscape garden, one of Nature’s rarest and most precious mountain temples.”

[iii] The Balttle Over Hetch Hetchy Robert W. Righter, Oxford University Press, 2005, Chapter 1 The Uses of the Valley, page 27.

[iv] As of February 22, 2010 that may legally possess firearms under appropriate Federal, State or Local Laws may do so in the park. BUT discharging them for any reason is still illegal.

[v] Ibid. Chapter 3, Water, Earthquake and Fire, page 60

[vi] Son the 20^th President, James A Garfield who served in 1881 from March until July when he was assassinated

[vii] San Francisco did put in a road from Camp Mather to Hetch Hetchy. They did provide additional moneys to the park for road, but the Park Service diverted that money to complete the eastern and western portion of the Tioga Pass Road. I still don’t see the hotel, though, but I’m still looking.

[viii] The Sierra Club Vault Website (http://vault.sierraclub.org/ca/hetchhetchy/timeline.asp) 1988 to 2000

[ix] Ibid, 2006 to 2015

[x] “Ex Post Fact” or “after the fact”. Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). – Wikipedia “Ex post facto law”