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Water Rights Warrior

In the high-ceilinged living room of Mary Burke's ranch house overlooking a lush irrigated meadow near the Wenatchee National Forest, sits a simple, four-row bookcase. The top shelf is wedged full of aged and well-used reference books, some of them 100 years old.Burke selects a green, gold-embossed volume and carries it to a waiting chair being warmed near an east window by the early morning light.The

In the high-ceilinged living room of Mary Burke's ranch house overlooking a lush irrigated meadow near the Wenatchee National Forest, sits a simple, four-row bookcase. The top shelf is wedged full of aged and well-used reference books, some of them 100 years old.

Burke selects a green, gold-embossed volume and carries it to a waiting chair being warmed near an east window by the early morning light.

The book, a compilation of 19th century U.S. presidential papers and messages, is hardly recreational reading. This, however, is how she often spends her rare, free mornings - when husband Pat and their sons Jed and Joe can spare her from working cattle or changing irrigation water on their ranch near Cle Elum, WA.

Necessity has made it so. Somewhere within the covers of imposing books like this one might lie a nugget of salvation for a Washington rancher, apple grower or vegetable farmer. She's searching for the documentation or legal precedent that will help guarantee an owner's right to water, and his livelihood.

Agriculture Takes The Brunt Agriculture - cattle, sheep, orchards, vegetable farming and hay - used to be king in this arid part of the Pacific Northwest. Today, its very existence is deeply threatened. At issue is that basic building block of life - water. Agriculture has many older and senior rights to water rights and uses; and government - thirsty for additional water for urban use, salmon habitat or just simple control - wants to take it away.

It's a fight in which Burke became a frontline soldier 30 years ago when the state of Washington began aggressively adopting water and environmental laws. If you owned a ranch, she says, you had to get involved simply to defend what you already owned.

Since then, her involvement in water rights issues - and, by logical extension, property rights - has grown to be an avocation of immense proportions. Her motivation, intellect, preparation and articulation of the issues have won her respect and admiration from friend and foe alike.

She testifies frequently before courts and state and federal agencies on water issues. She both leads and supports a myriad of water rights and property rights causes. Her name and reputation are nationally recognized. Her services are in demand not only from agriculturists, but urbanites, developers and industrial parks.

She sits on numerous boards and holds or has held major offices in both the National Cattlemen's Beef Association and the Washington Cattlemen's Association. She's often asked by attorneys to consult with their clients on water rights issues. All this, from a rancher without a law degree.

Both Burke's friends and opponents facetiously refer to her as the "Water Witch" because of her tenacity in defending historical water interests. If there is real historical water there, Burke will document it, they say, an allusion to the art of finding water with willow sticks.

She does it through painstaking research, spending tedious hours combing stale records in the basements of government buildings and sifting through boxes of old papers brought to her by desperate farms and businesses trying to prove their legal right to water.

"Most of the time it's not a matter of finding something they didn't know they owned, but a confirmation of something they knew they owned," says Burke of her research into title histories. "What I do is a historical support for what already is truth. Today, bureaucrats need to have pieces of paper because government doesn't believe its citizens any more."

A Water Law Visionary "Mary is a visionary," says Greg McElroy, a Seattle attorney and one of the nation's top legal experts on water law. "She was the first person I know of who, in the mid-1980s, was saying that we had to be addressing both water rights regulation and water quality regulation. Most lawyers thought that idea was nuts because the two worlds were completely separate.

"Now, everyone agrees with Mary. Even if you can protect your legal right to use and appropriate water, it isn't worth anything unless your livestock can drink from the streams," McElroy says.

Larry Brown, superintendent of the Ellensburg Water Co., says "Mary is one of the most knowledgeable people on Western water law, and water in general, particularly senior water right, riparian water right and stockwater. She knows more than most attorneys I know. In fact, she educates lawyers as well as lawmakers."

Tom Fitzsimmons is director of the Department of Ecology, a state agency charged with water oversight in the state of Washington. Thus, he's often been on the opposite sides of issues with Burke. Yet, he says: "Mary has always been focused on the practical consequences of any policy under discussion. As a result, she has helped keep all parties fully aware of what might happen to real people. This has added constant reality to the water negotiations."

Burke grew up as a Masterson on a purebred Angus ranch homesteaded by her greatgrandfather in 1880. With three years of college toward a career as an English teacher, she left college in 1956 to marry Pat Burke, whom she decided was more interesting than teaching.

Indicative of how important water issues and cattle are in her life, Burke describes her move to Pat's family ranch as "moving eight miles from the Teanaway Watershed to the Swauk Watershed and marrying a different colored cow."

Today, their compromise shows; son Jed buys Hereford and Angus bulls to use on the family's 400 commercial Hereford cows. Generally, they run the calves to the yearling stage. The Burkes' ranch also includes a tree farm and timber operation.

The ranch consists of two places, combinations of deeded land and government and private leases. On the "lower place," part of the acreage is rangeland, and part is irrigated from a Bureau of Land Reclamation project, the Kittitas Reclamation District. The home ranch, on the other hand, is on a stream called Swauk Creek.

"That's one of the reasons Pat and I have done so much water work - because we have so many different kinds of water rights," she says. Historian And Activist

Burke projects tremendous energy and confidence. Her manner and speech are reflective of her hectic lifestyle and the issues she deals with daily. She's not a small talker. She listens intently. Her speech is quick and efficient, complete, precise and clear. Her recall of facts, figures, dates and people is exceptional.

She is also humble, at times dismissive of her role and accomplishments. "You have to do what you have to do to keep your business profitable," she says. She claims her value in water law circles is because "I have all the history of the area because I was already here when Lewis and Clark came through."

At 64, Burke falls well short of being a contemporary of that pair of 18th century explorers. But, there is no refuting the historical perspective she carries, and its value to the water rights effort.

"Mary is the historical knowledge base of water issues within the state of Washington and even within the nation," says Karla Kay Fullerton, executive vice president of the Washington Cattlemen's Association.

"She's listened to very strongly by both sides not only for her understanding and ability to lead through an issue, but her knowledge of how it started in the first place. The historical perspective allows you to get directly to the root of the problem and fix it properly," Fullerton says.

Fullerton says Burke's influence is such that she almost single-handedly critiqued the Governor's Water Rights Bill in this year's legislature. The bill would have essentially taken control of all water in the state and turned Western water law on its ear, Fullerton says.

"Mary worked hours and hours to find the arguments to not let that thing pass," Fullerton says. "The only reason we had a seat at that table at all was that they knew Mary's reputation. They knew that if Mary wasn't a part of the discussion, the bill was doomed to certain failure."

War Over Water While many parts of the U.S. struggle with water issues, nowhere is the battle as intense as in the Pacific North-west. Interests seeking additional water for cities and wildlife habitat are proposing radical changes that would devastate agriculture and communities.

"Whomever controls the water, controls the land. It really is a property rights issue," Burke says.

Basic quantity water law is simple, she says, with two primary components. One is that water runs downhill. The second is that water laws are based on a time line. "First in time, first in right" has been the cornerstone tenet of Western water law from the start.

Today, however, urban interests vie against rural interests, East against West, preservationists against responsible use. The attacks often come not head-on but from the side - water quality statutes, for instance, that essentially strip users of the use of their land by placing unreasonable requirements and restrictions on runoff.

The problem is that politics no longer run on legal logic, but political correctness, Burke says.

"So you end up with new terms and adaptive science that don't fit basic laws. You end up with this complicated mess that's very difficult for anyone to deal with. Everyone's confused and everyone's backed into a box and they don't know where to go," Burke says.

Those who generally bear the largest burdens of these laws are typically those with the least voice or without the resources to fight government.

"There are farmers and ranchers on the Methow River in central Washington who have irrigated for over 100 years. This summer, the National Marine and Fisheries Service told them they couldn't turn on their water because it was needed for salmon, and haven't allowed them to do so," Burke says.

"These are small operations that can't afford a $25,000 fine and they don't have the money to fight. Their places, orchards and little farms are all dried up. It's a total lack of recognition of these water rights and a total lack of concern for these people by our federal government," she says.

Government Attitude Is An Obstacle Burke decries a federal attitude from the East that governs the West as though it were still a territory.

"How else can the Endangered Species Act be applied one way in the West and another in the East?" she asks. "I don't see anyone telling New York City to return to its primitive condition because they don't have any Atlantic salmon. But, they'll do it west of the Mississippi, and they're doing it to the Pacific Northwest."

Burke sees reason for optimism, although the change is coming slowly. Once major industrial producers important to world trade are affected, pressure will begin to mount against such policies, she says.

Her advice to producers is simple - protect yourself. "You have to prove you exist to protect yourself from Executive Orders like the one that locked up 1.7 million acres as wilderness in Utah a few years ago (Escalante National Park).

"Look up all your title and water histories. Get all the family, especially the older people, to write down anything they can remember about their rights to use their land, to cut their timber, to use their water and minerals. Then, take those to a lawyer to confirm their legality and file them in the court house," she says.

It's this information, says Seattle attorney Greg McElroy, that can make or break a water case in court "because it gives credence to what the family history is on how the property was used. This historical property information is the kind of information that a lot of government programs and a lot of modern regulators would like to sweep under the rug," McElroy says.

The battles are winnable if producers prepare and unite, she says. In 1990 and 1996, at the request of Jim Courtney, then president of the Montana Stockgrowers' Association, Burke conducted a series of water rights seminars for producers, lawmakers and county commissioners in the Big Sky State, just as she has done in her own state. Courtney's decision proved to be both fortuitous andforesighted.

Shortly thereafter, Vice President Al Gore boasted that the government intended by Executive Order to do to the Missouri River what it had done to the Escalante in Utah. Montanans rallied and the concept was withdrawn.

"Courtney and his fellow Montanans did their homework and were united," Burke says. "They had proof of their existence and what they owned, and they won. That's the key - being prepared, active and united," she says.