by: Community Environmental Legal Defense Fund, Gail Darrell Posted on: December 24, 2012
Editor’s Note: We are proud to publish our first Community Rights case study. As our author explains, Barnstead, NH was the “first municipality in the nation to strip corporate constitutional protections as a way to ban corporate water mining for profit”. Written by a citizen of Barnstead (Gail Darrell), this piece will inform you how and why the town encoded into local law what it believes to be its community rights and the rights of nature. Read on!
If you were to drive through Barnstead, NH you would not suspect that there was anything special about the people who live here. It’s a typical small town in New Hampshire, with a country store with a “guns for sale” billboard, a post office, a fire station and a community church that line both sides of Route 126 as the road quickly takes you through and out of the town’s center. The community looks much like many others in our small state. If you attended a selectmen’s meeting—of our local elected officials—you’d hear all of the same conversations you might hear in any small town in New England—discussions on which roads to pave, how to appropriate town funds, and appeals from taxpayers who need a break on their tax bills. Our population hovers around 4,000 and we are almost equally divided, politically. We’re almost all of European decent, with some welcome exceptions to that rule.
The town covers about 45 square miles of forests, lakes, rivers, open pasture and farmland. We are home to “Little Niagara” and many other swimming holes. The per capita income averages out to around $20,000, and the median income is about $49,000.
When our neighboring town of Nottingham was faced with a water withdrawal that would permit USA Springs, Inc to remove over 300,000 gallons of water a day from the local aquifer, Barnstead saw that its own water was not safe either. This realization that the state Department of Environmental Services (DES) would permit a ludicrous proposal like the one in Nottingham—which was nearby an abandoned machinery graveyard—led Barnstead residents to ask lots of questions. When it was first submitted, the withdrawal permit had been denied for 27 scientific reasons, such as the threat of resident well contamination. Following an election and a change in governor, from Benson to Lynch, coupled with a change in administration at DES, the permit was resubmitted with minor changes and accepted. What happened to those 27 reasons? What did we not know about the permitting process that would allow such a travesty? What is the function of the DES anyway? To protect the environment or to facilitate the permitting process for business and industry?
Those queries led to an involved discussion on the law and the creation and function of environmental regulatory agencies. The search for answers led residents to the Community Environmental Legal Defense Fund’s (CELDF) website and Democracy School. It was through empowerment from this education that the town of Barnstead has earned the distinction of being the first municipality in the nation to strip corporate constitutional protections as a way to ban corporate water mining for profit. At the annual Town Meeting in 2005 a resolution to create an ordinance to protect Barnstead’s water systems passed unanimously. At our meetings, resolutions are brought forward to get a sense of town opinion on a particular issue. When a vote at the 2005 meeting demonstrated that water was the subject of voters’ unanimous concern, the selectmen asked for volunteers to form a committee to draft an ordinance for the following year’s meeting. Bruce Shearer, Carolyn Namaste, Diane St. Germain, Stuart Liederman, Leo Carmichael and me – Gail Darrell – volunteered to work on the language for an ordinance and to keep the selectmen informed throughout the coming year
Some members of the group had a history of political involvement, but not me. My background was education and tutoring of special needs kids, not politics. At the time, three of our four children had moved out on their own, off of the small farm where my husband and I have carved out a life. We home schooled all of them; the last child was on her way to the eighth grade.
I have become a community organizer. It was a process that began with community film nights and potluck suppers. Following a showing of the film Thirst—suggested by then University of New Hampshire student and Alliance for Democracy organizer Olivia Zink—we began to hold monthly discussion nights to bring awareness about local and global water privatization.
Thomas Linzey, the Executive Director of the Community Environmental Legal Defense Fund, was due to be in Boston, MA as part of a speaking tour in the fall of 2005. By the request of Barnstead’s board of selectmen, Linzey came to town to present on the work of the Legal Defense Fund and the use of what is called “rights-based” organizing to thwart corporate overrule of community will. Following the meeting, he was encouraged by the town board to begin working with the committee concerned with the language of the ordinance. When told that other town solicitors viewed the laws drafted by CELDF as “illegal”, town selectmen chair, and Vietnam vet, Jack O’Neil (pictured above) said, “We’ll walk point on this in hopes that other towns will follow”. Water is far too important to risk losing it.
The ordinance group met monthly, held potluck suppers and showed films to educate the town about keeping water in the public’s hands and free from corporate mining operations. I was asked to be the face of the organizing in town and accepted the position with a twinge of trepidation. I have never been actively involved in anything remotely related to a political campaign. To my relief, I discovered that my experiences over the past twenty years – writing, homesteading, child rearing, gardening and home-schooling our four children – had apparently prepared me well.
Once the language for the Barnstead Water Rights and Local Self-Government Ordinance was finalized, the letter-writing campaign to educate the readers of the local newspapers began. Through weekly letters to the Editor, I told the story of my involvement with the campaign, and history as a New Hampshire native that was raised to speak clearly for what she believed in.
We continued the conversation about creating a local law that asserted the rights of the Barnstead community to make decisions on issues that directly affected them. Residents supported the events with their attendance and participation, which led to a wide understanding of the difference between regulating a water withdrawal and using our local government to ban corporate override of our rights.
The language of the Ordinance includes:
“We the People of the Town of Barnstead declare that water is essential for life, liberty, and the pursuit of happiness – both for people and for the ecological systems, which give life to all species.”
“The prohibition: Section 4. Statement of Law. No corporation or syndicate shall engage in water withdrawals in the Town of Barnstead.”
And in recognition of the Rights of Nature, the Ordinance was amended in 2008 to establish ecosystems as rights-bearing entities:
“Section 5.1. Rights. All residents of the Town of Barnstead possess a fundamental and inalienable right to access, use, consume, and preserve water drawn from the sustainable natural water cycles that provide water necessary to sustain life within the Town. Natural communities and ecosystems possess inalienable and fundamental rights to exist and flourish within the Town of Barnstead. Ecosystems shall include, but not be limited to, wetlands, streams, rivers, aquifers, and other water systems.”
“Section 7.2. Environmental Protection: It shall be unlawful for any corporation or its directors, officers, owners, or managers to interfere with the rights of natural communities and ecosystems to exist and flourish, or to cause damage to those natural communities and ecosystems.”
By the time the Ordinance was circulated to gather signatures to place the Warrant Article—the rights-based ordinance—onto the ballot for Town Meeting, many residents already had a working knowledge of why the ordinance was written the way it was and how necessary it was to pass it come Town Meeting in March 2006. That is not to say that there were no hurdles. We faced the yeah buts from many business owners who wondered if the denial of “corporate rights” to water extraction operators would somehow extend to their own legal protections. We were asked by hunters if the Rights of Nature provisions within the ordinance meant they could no longer shoot a deer for fear of someone bringing a law suit against them in the name of the deer’s family members. Loggers queried whether or not the local ordinance would make it illegal to cut timber. And one particularly right wing fellow joked about the rights of nature protecting those rights of hippies and tree huggers to stroll naked down the main street of town. There was some head nodding and snickering on this one.
The continual exchange of debate over the Barnstead Water Rights and Local Self-Government Ordinance, as it came to be known, provided the groundwork for gathering signatures for the petition.
Support for the local law was made clear by the 78 signatures on the petition, only 25 being required by law. Since we were the first municipality in New Hampshire to bring a rights-based ordinance to a vote, we had to uncover the process within state voting regulations, determine where the Ordinance would appear—on the ballot, or on the Warrant for Discussion at the open Town Meeting—and meet all petition deadlines required by state law. There was an argument between the town boards about which deadline was valid—December or January. The bulk of the 78 signatures were collected by three people in order to meet the surprise deadline—a day ahead of the final deadline for submission of petitioned Warrant Articles.
After we turned in the petitioned Warrant Article signatures to the town clerk for verification, the community prepared to hold its first Democracy School. In February 2006 at the Locke Lake Community Center, overlooking one of Barnstead’s lakes, a group of 25 residents attended the weekend educational training put on by CELDF. In lieu of lessons learned from Nottingham’s struggle within the regulatory system, by the time the annual Town Meeting came around in March, the majority of residents understood the importance of enacting the ordinance. Voters understood, most for the first time, the difference between regulations and rights. The conversation became: who gets to make decisions about water use in our town, the people who live here, or someone else?
At the annual Town Meeting in March 2006, the Article came up for discussion at the end of a very long day. There were people who asked if it was legal, since we do not have “Home Rule” in New Hampshire and the state—through the DES—maintains jurisdiction over water extractions. There were still some folks who were afraid the town would get sued. I was at the front of the room for the discussion period to answer questions on the ordinance. The other committee members stood nearby, as my moral support, certainly, but also to show their faces and numbers as the workers who had brought forward the Water Ordinance. When the questions from residents about the legality of the ordinance came up, our selectmen responded right away. Gordon Preston (pictured above) told townspeople that our lawyer looked at it and didn’t like it, but he was a municipal lawyer and the ordinance was written with the assistance of a constitutional lawyer and was clearly in line with our state constitution. People like small government in New Hampshire and they credit themselves with having a strong streak of independence that is reflected in the state motto “live free or die”. The selectman’s answer suited the crowd. On the suit question, selectman Jack O’Neil quipped that we had to prevent our water from being taken, that we can’t live without water and that we would have to just test this and see what happened—the water is not for sale.
In my town, when the fire department votes with you, you win. On that day in March, at the end of a very challenging discussion, the fire department saw the rationale of a rights-based ordinance to protect our water. The town voted 135:1 in favor of the rights-based Ordinance. The lone dissenter was speaking for the protection of property rights—that idea that a property owner should be able to do anything he wants on his own property. The voice of reason was with the people that day—people who believe that water is part of the ecosystem we all depend on for life and it is not for sale. The Ordinance has never been challenged.
Barnstead has continued to spread the word about CELDF and rights-based organizing throughout New England. Atkinson, NH enacted a similar rights-based water ordinance in 2007. Nottingham followed suit in 2008. Barrington—the other town connected to the USA Springs water permit for water mining adopted the original Barnstead ordinance—one that does not recognize the Rights of Nature—in 2009. Two towns in Maine, Shapleigh and Newfield, passed rights-based water ordinances with Rights of Nature provisions, at town meetings in 2009. Three towns in NH adopted the Right to A Sustainable Energy Future ordinances at annual town meetings this year to ban projects like the Northern Pass. There are now seven ordinances in NH and three in Maine that follow the rights-based format. Five of those recognize Rights of Nature.
I continue to work as a community organizer and first chair lecturer of the Democracy Schools for the Legal Defense Fund. When I’m not teaching or working with communities on local campaigns, I can be found in my vegetable gardens, or working alongside my husband, Doug. Our four children live within a couple of hours of us and continue on in the traditions of the educational framework they were given as students—learn something new everyday.