Lee Orton

Interviewee:


Interviewee Lee Orton, Staff Attorney, SWCC, 1969 - 1973; Employee, NARD, 1973 - 1983; Attorney, 1983 - time of interview

Lee Orton

Position Held: Staff Attorney, SWCC, 1969 - 1973; Employee, NARD, 1973 - 1983; Attorney, 1983 - time of interview

Full Interview:


Interviewer(s):

Dayle Williamson

Associated NRDs:

All

Transcript:

MR. WILLIAMSON: It's February the 13th, 2014, and this is Dayle Williamson, and I'm interviewing Lee Orton today. Lee started with the natural resources -- Nebraska Soil and Water Conservation Agency in May 1969. So, Lee, thanks very much for joining us today for an interview. And give me some of your background, where you grew up and where you went to school and college for our background.
MR. ORTON: I was born and raised in northeast Nebraska, near Sioux City, South Sioux City, Nebraska, actually, graduated from high school there and came to the University of Nebraska in 1960. And after graduating from my undergraduate degree, my wife, Rita, and I moved to Kansas City where I worked for RH Macy's Department Store Company for about three years. Decided that I didn't want to grow old quickly working in the retail business, so I came back and went to law school. And I graduated from law school in May of 1969 and joined the then Soil and Water Conservation Commission. When I got out of law school, I had no inkling that I was going to be doing these kinds of things, quite frankly. And I had not even taken Dick Harnsberger's water law course when I was in law school. So, I think Warren Fairchild had the good sense to tell me that I probably needed to learn a little bit about water law, and the Commission actually sent me to the University of Wyoming to their law school in the summer of 1969. Spent about three weeks out there going to an intensive water law program that was taught by Dick Harnsberger who became a really good personal friend through that relationship along with Frank Trelease who was the dean of the law college out there and an internationally recognized water law specialist, and a woman from Rutgers University, by the name of Eva Morreale Hanks. So, I got some intensive water law training and it was phenomenal, probably the best thing I could have ever hoped to do to learn and understand what was going on. I joined the Commission at a point in time where the Modernization of Resource Districts publication had already come out and there was a lot of work already had been done on LB 1357 at that point in time. And an awful lot of the political discussions with the various organizations that were involved in that process, including the old Soil and Water Conservation Association and so forth were already well underway. So, I kind of watched much of that stuff develop, sort of at a distance, I guess, but I became involved almost immediately in working on the legal and institutional aspects that were a part of the state water planning process. And under the guidance of Mike Fischer (phonetic), who was my boss in the organization, and Warren Fairchild, and I suspect maybe even you, Dayle, to some extent, but my activities were relegated to a lot of the state water planning activity during that period of time. And occasionally, I had the opportunity to be involved in the discussion in the Legislature when the legislative bill was actually being considered. Back in those days, you could walk on and off the legislative floor with no limitation whatsoever. There were no glass doors there. The senators' offices were typically at their desk on the floor, and if you needed to visit with people like Maurice Kremer, who was kind of the champion and father on the floor of the Legislature of this legislation, you just went out and had a folding chair and you sat beside him at the work desk and gave him the answers he needed to respond to the debate. So, occasionally, when there were issues that I was familiar with, I got called on to do some of those things along with Mike, and along with Warren, and I suspect, Dayle, you were probably out there on the floor a time or two as well in that process. So, we watched much of that development occur. I was not at the Soil and Water Conservation Convention that year where the issue was debated, finally, and the legislation then moved ahead after the association had taken its action and so forth with regard to that legislative bill. So, I watched all of that stuff, was involved in some of it at that point in time, and then got much more involved in it in the next several years. Mike Fischer left -- I don't remember for sure when, but during those interim years between the passage of the legislation in 1969 and the ultimate implementation in 1972, Mike was gone. And so I was much more involved in some of the interim study activity that took place that resulted in a whole series of legislative initiatives to try to change the bill before it finally went into effect. I'm still convinced to this day that some of the things that that interim study committee did were serious mistakes that they should have left the legislation the way it was, because we would have accomplished the things that were intended there a lot better, I think, if we had left that alone. And I think the biggest example of that was the removal of the ability for Central Nebraska Public Power and Irrigation District to establish a natural resources division that would have been the NRD in that area. That's one of the reasons why Tri-Basin NRD exists today, because it was built around the boundaries of Central. And frankly, if we had left that legislation in place, I'm convinced we'd have had an integrated management plan in place in that part of the state 25 or 30 years before we began worrying about those things, and we would have done a much better job with the problems we have today in trying to solve those difficulties. There are probably some other examples of that as well in that legislative process that shouldn't have occurred, but ultimately did, obviously, and that's the game of politics. So, it's important, I think, to acknowledge that and recognize it and say, maybe we'd have been better off if we hadn't done some of those things. I was involved a great deal in the implementation of the NRDs, because I was frequently, I think almost all of the time involved as the hearing examiner for the boundary establishment of the NRDs over the years, and involved, to some extent, in the debates that the Commission had and the staff worked on and so forth with the various different formations and shapes and sizes of what the NRDs were going to look like. Dayle, you know there were lots of maps with lots of different kinds of district combinations out there, and when we finally went into the field and started conducting the hearings, I was the guy that had to sit people down when they were getting out of hand and try to make sure that we got a good record on those boundaries.
MR. WILLIAMSON: I might say, you did a super job, too. And mentioning that we could sit next to the senators, you know, the senators decided they would do the boundaries and we were all on the floor by individual senators when they tried to do that, and they finally gave it back to us. So, it was 33 boundaries when we started, and so that was -- well, you mentioned that interim study, and there were several bills changed, and you mentioned some of the critical changes or they thought were critical that they made at the time, and so that's very interesting. But the bill passed in 1979, and then describe -- I mean, it passed in 1967, and then it took quite a while with the interim changes.
MR. ORTON: It did. And it finally went into effect, of course, in July 1st of 1972.
MR. WILLIAMSON: Right.
MR. ORTON: So, there were a couple of years in there where things went on, for the most part, I think maybe in a positive way, although, we can all remember little bits and pieces, obviously, of the turmoil that was created by people who didn't like that change.
MR. WILLIAMSON: Right.
MR. ORTON: I want to say, at this point in time, one of the things I learned as still a young kid at that point in time, I guess, was to watch all these people who were just terribly opposed to change, just because it was a change. And I said to myself over and over again at that period, I said, “When I getb older, for God sakes, don't get caught up in that idea.” Change is not necessarily bad just because it's change. And much of the opposition we had to the NRDs and to the boundaries and to everything else we were doing back then, came from people who just wanted the status quo. And we can't exist that way. Change has to occur, obviously, and sometimes it's very painful, but it needs to be accepted and willingly understood, I think. The boundary process was one last-ditch opportunity for a lot of those opponents, but we had lots of other things we had to deal with, as well. The infamous Gold Dust Twins, obviously, always come back to my mind, Erv Matulka (phonetic) and Charlie Goff (phonetic). And those two guys were tenacious in their activity to try to stop this process. And they befriended an important politician, as well, Jim Exon, who once upon a time opposed the NRDs, but eventually, came, I think, to be a supporter. When he recognized things needed to be done differently and so forth. So, he, in his later years, claimed to be a champion of the NRDs even though he was an early opponent to the process. And Charlie and Erv did a good job of keeping him informed on the issues they thought were critical and important, and of course, there were a lot of people like you and others that more than likely had to work close with him to make sure he got the right information in that process.
MR. WILLIAMSON: Yeah, and I might add in there, Lee, that the so called Gold Dust Twins, they had the ear of the farm editor of the Lincoln Journal, Glen Kreuscher.
MR. ORTON: He did, indeed.
MR. WILLIAMSON: And so, the Lincoln Journal came out and I'm quoting here from the Lincoln Journal, but they called the NRD legislation “a 33-headed bureaucratic boondoggle that would create a state-controlled tax-eating monster with power of eminent domain.”
MR. ORTON: It's kind of scary thoughts, isn't it? So many people suggested the NRD movement was what they called a “end of local control,” complete loss of local control. Now we think of the NRDs as local control in the epitome. And so we've gone from one extreme to the other obviously. And I guess that's the way life is and that's the way politics are, obviously. You never see the pendulum in the center point very often. It always goes from one extreme to the other, and we've been at both ends with the NRD program. I had an old gentleman that followed us around at those public hearings. I think he attempted to testify at maybe six or eight of them as a matter of fact. He'd get on the bus and follow us to the next town. I don't remember the guy's name. He was from North Platte. I do remember. It was George Brownfield.
MR. WILLIAMSON: Oh, yeah.
MR. ORTON: You remember George?
MR. WILLIAMSON: Oh, yeah, I remember that now. You're bringing back memories of many years ago.
(Laughter.)
MR. ORTON: I finally had to just put him down, because he'd give the same speech every place he went. And I finally had to tell him, “George,” I said, “We've heard this presentation now several times. I'm going to have to just call you out of order and tell you to sit down.” And he got pretty upset with
me, but --
MR. WILLIAMSON: Well, yeah.
MR. ORTON: -- he quit following us at that point, so maybe we did him his favor, I don't know.
MR. WILLIAMSON: Now, 25 days before the NRD law was to go into effect, why we had a lawsuit filed from southeastern Nebraska, and of course, you were the attorney that had to help us work through that. Do you recall anything about going to district court? I recall it was just a couple days before July the 1st.
MR. ORTON: It was -- I don't remember how close it was, but it was mighty close, yeah. And the court, obviously, heard the case from the bench. We didn't have a jury or anything else involved in it.
MR. WILLIAMSON: No.
MR. ORTON: Our official representative was from the Attorney General's Office, Ralph Gillen. And they wouldn't let us sit there and represent the State. They had to be a Deputy Attorney General to do that, so I sat at Ralph's elbow and tried to make sure he knew what was actually happening, because he was he trial attorney, but he didn't know squat about NRDs. And so, all of the information that he would present and most of the questioning of witnesses and so forth, we'd have to feed all that to him. And I think we did a pretty good job, obviously, keeping him posted, and the judge ruled in our favor. So, the program went into effect, be in order to make sure he could unwind it if he needed to, the Court kept all of the accounts separate for a period of time until the appeal was over. So, all of these districts which were trying to operate new -- with new directors and so forth, all consolidated and merged, had to also then keep all that money segregated for a period of time, so that if they did find out at the Supreme Court level that the program was unconstitutional or illegal in some way and they had to put the SWCDs and the watersheds all back in place again, their money would be intact. Now, interestingly enough, we had a few districts out there who thought they were going to try to beat the gatekeeper, I guess, and so they secreted all that money and transferred it to other places so it wouldn't go into the NRDs. I don't know if you remember the Webster County effort, because they had a big chunk of money.
MR. WILLIAMSON: I remember.
MR. ORTON: They had a big chunk of money that they'd done through business of the SWCD, I suspect planting grass and trees and things of that nature. I don't remember, but it was probably in excess of $50- or $60,000.
MR. WILLIAMSON: A lot of money then.
MR. ORTON: It was a lot of money. And they transferred it to a local association so the NRD wouldn't get it and take it away from Webster County. I'm not sure we ever got that money back. I think we let it stay where it was, but --
MR. WILLIAMSON: And I remember those were the nicest board members. We liked them really well. They were very -- we had some problems in Otoe County, too.
MR. ORTON: Yes, we did. That was kind of the hotbed -- well, that was a hotbed of watersheds. I mean, there were a lot of watershed districts down that. That local board of the NRD down there, with all the people that had to serve, I think there were 150 or 200 directors in that area of the state, in the Nemaha Basin. And they were governed and ruled by an executive board of 21 for the first couple of years until we got the elections in place and so forth. So, lots of interesting things occurred. Consolidation and merger is a tough nut, obviously. I mean, you watch that with school districts. You watch it with everything else. And obviously, the water organizations were the same way. So, the fact that we got through this was a miracle, I guess. Over the years, after I worked with the Commission for two and a half years, I'm going to digress a little bit, I left the State employ, and went to work for the association, the NARD. And in that capacity, not only did I have a chance to work with the NRDs that were created, and I came to them in 1973, I guess, a year after the NRDs actually went into business, I got a chance to travel all over the country giving speeches about NRDs to other states who were looking at it. I don't think there was another state anywhere that had the guts enough to do what we did.
MR. WILLIAMSON: And I think that's still the case.
MR. ORTON: I think it is, too. And I'm not sure that they could have done it, frankly. We -- Nebraska is, first of all, very unique and very creative, and I think they should be proud of that fact. But the fact that we have a unicameral legislature that isn't political in nature, as much as many of the other states. And the fact that we had a good strong leadership cadre in the Soil and Water Conservation Commission and a staff that worked for the State and so forth, made all the difference in the world. The other states just didn't have those little elements they needed to take the political choice they needed to have. Some of those other states have done some things in going in the direction of NRDs giving districts some taxing capability and some other things that they need to carry out their job, but there's still just a whole plethora of small, special-purpose districts in most states. And I think they have to struggle getting things done in water resources because of that.
MR. WILLIAMSON: Well, those are good comments, Lee, and as we interviewed Clayton Yeutter the other -- recently, he was the chief of staff for our governor, the governor was Nobby Tiemann at the time, and he noted how strong the governor was. So he said, “We had it from the top down.” He's mentioned that. And he also outlined all the things that were happening in the Tiemann administration, and it's as long as your arm, including starting income tax and sales tax.
MR. ORTON: Yep.
MR. WILLIAMSON: But he said, the governor would never let down on anything, including NRDs, no matter how people beat on him.
MR. ORTON: Interesting that you would mention that, because while I was in law school, I actually worked for the State. I was in the legal division for the Tax Commissioner's office. And we wrote most of the rules and regulations to make the sales/income tax work after the law passed. There wasn't a day went by that we didn't create some kind of a new rule and regulation to make that system work for what was then called Tiemann's Tariff, because of Governor Tiemann being the person that supported that. Obviously, he had no choice. When he came into office, the property tax for the State of Nebraska had been declared unconstitutional. And so the State had no funding mechanism unless they adopted something and that sales/income tax was the new thing in Nebraska to replace that lost revenue from property tax. So, we had a legal division then in those days. I think it's bigger than they probably ever had. We had five lawyers and at least six law clerks that worked in that division writing rules and regulations every day. And the legislators would show up in our office to find out what it was they'd done, because they didn't know how to answer the questions when they got them. We were inventing the answers to all the little stuff that was in that sales/income tax law.
MR. WILLIAMSON: Well, that is really interesting and that sure ties in with what I'll call the turmoil of the times, because lots of things were happening, but it worked well. Now, you mentioned the appeal. The law was actually appealed to the Supreme Court, and I know -- and you, no doubt, helped us work through that.
MR. ORTON: Yeah, I was involved in the process all the way through. In fact, I think, maybe parts of the briefs that got filed, we actually wrote in our office, and then the Attorney General would put his blessing on it and it would go on upstairs. The Supreme Court ultimately held the law constitutional except for the composition of the Commission itself, which was tested. Well, I think that maybe was a mistake that the Supreme Court shouldn't have made, because the people that were on there, representing university issues and so forth that were not allowed to be there anymore, were people that brought a lot of really good expertise to that Commission. The Commission had, as it does even now, representatives of the local institutions, the NRDs ultimately that were on that Commission, but there were also people from State agencies, and the university, and even some people from the feds that were advisory to that Commission that I think brought a lot of good common sense and technical skills to the Commission that they needed to do their job. So, I think the Commission lost some expertise when the Supreme Court did what it did, but you got to live with what's there. I guess, the fact that we saved the NRD concept itself is important. And so we considered that a victory no matter what happened, obviously, and the Commission managed to move on and do the things it needed to with a changed membership.
MR. WILLIAMSON: Can you tell us something about the Nebraska Association of Resources Districts? Prior to the time NRDs went into effect, why, there was an association, but no employees or any thing like that. And so, as another important step was taken as the association came on board with employees, and were you their first employee?
MR. ORTON: Yeah, I think I was. The Commission back in those days, the Soil and Water Commission and the old Soil Conservation Association, utilized staff from the Commission, frankly, to help them sort of on a volunteer basis. Hazel Jenkins did a lot of things for them. And you did a lot of things for them, and Duane Chamberlain did a lot of things for them. And others on the staff just kind of donated their services, I guess, as a part of their employment condition at the Commission to help the association function. It became pretty apparent early on, I think, though, that with the significant growth in the authority and the capability of the NRDs themselves, they needed a stronger association as well. I don't even know for sure who the other people were that were competing for that job, but I applied for it and was hired and retained, I think, in July of 1973 as their first full-time employee. The office for the association was a little cubicle about eight feet square in the basement of my house. That didn't last very long, because I was on the road a lot and my wife got real tired of getting office phone calls while I was out. That was way before the days of cell phones, obviously. And so, you had one telephone line and we actually had a telephone that had two lines on it, but when it rang, it had to get picked up. So, we ultimately ended up moving into an office and relocated several times over my ten years with the association. But those were good growth years, too, for the association. A lot of things were being learned, yet, by the districts and the association was doing a lot of things to try to help them get their job done. Many things that are still in place today got started back then, including employee benefits program packages that we administered there and so forth, and we helped them with legislative activity. And we helped them in the early days with an awful lot of education programs, because the NRD staffs, by nature, weren't very big at that point in time either. And they were very unspecialized in their operating capability. As they grew up, obviously, that changed a great deal and many of the districts now have full-aligned staffs with all the expertise they need for all purposes, and that makes a big difference in that regard, as well. But I'm pretty proud of the fact that the association grew with the natural resources districts, and, I think, did a pretty good job with representing their needs and interests at the capitol building. We always had fights with politicians in those days, and the NRDs were still kind of the phantom organization in those days. Most people didn't know who they were and didn't much care. That's changed a lot. Now NRDs make headlines almost every day now. So, I guess those times have changed, sometimes for the better, maybe sometimes not so much so.
MR. WILLIAMSON: Can you remember anything about the legislation that didn't allow NRDs to even build a building?
MR. ORTON: Oh, yeah. The problem we had was, that before the NRDs came along, the educational service units were being organized, and they made the mistake, I think, of starting to build office complexes, is maybe a good description. The Legislature saw that happening, so they said, by God, we're not going to let that happen again, so the NRDs couldn't even own a building. They had to rent and lease space they could find and so forth from everywhere. And lots of times, that stuff was kind of jury rigged, because it was not a good solution to the problem, obviously. Ultimately, the NRDs were given authority, I think, when the Legislature recognized maybe they weren't the cash cows everybody thought they would be and the spender of money that they shouldn't spend and so forth. So, most NRDs have nice facilities now and functional facilities that do a pretty good job for them. That came with a period of time. I also remember a few times when we had some rather crazy things going on. We had a state senator who saw a piece of activity in a western Nebraska district that was called the Wild Horse Project. And that senator thought we were buying and selling wild horses instead of fixing a reservoir on a small tributary of the Platte River. So we had to straighten that kind of thing out, obviously, from time to time, as well. Crazy, silly things.
MR. WILLIAMSON: A lot of things come up. And I imagine in your early years with the association, you had a lot of training sessions for employees, because it was a big growth time to handle the NRDs.
MR. ORTON: Yeah, we had training sessions for employees of districts as they came on board. Early on we gathered managers together to have a chance to share information and knowledge and understanding. One of the things we did in those early years, though, and it was partly, I think, maybe at the insistence of the boards themselves, but I think maybe just good common sense as well, those managers' meetings were not allowed to be just managers. They had to have representatives of the board members as well in attendance so that the board would make sure that things weren't going on that shouldn't be, I guess, maybe is a good way to describe it. I think that's changed now. Managers now meet pretty much by themselves, good, bad or otherwise. But those training programs were, I think, well received and pretty helpful as well. We also did a lot of training of directors themselves. We had problems with directors not knowing and understanding all of the added responsibilities that the NRDs had that didn't exist with the old conservation districts. And so, there was a need to help them understand not only their responsibilities, but just good practical ways to help them learn how to lead. And I think those were good successful programs as well. We also had candidate workshops from time to time so that people who did want to run for the board could learn and understand what they were supposed to be doing as well. But in those days, we didn't have a plethora of candidates. Lots of times people didn't volunteer to be on an NRD board. There were a lot of times in some of the districts that had, maybe boards that were a little too large where they ended up having to appoint people, because nobody would run. And I think there might have even been some times when there were vacancies on those boards that should have been filled and didn't, because not even anybody would volunteer. So, I don't think that's true anymore. I think that's generally in pretty good shape, although, turnover ain't all bad. Occasionally having some new faces on the board, bringing new concepts and new ideas aboard is a good thing, obviously. I think we learned that early on when the Legislature said, because there aren't very many municipal people on these boards, because they're mostly farm organizations and so forth, the Legislature required those first boards to have people from the cities and villages appointed so that there was an urban perspective. And I think that was a good thing that happened. It was probably one of the positive changes in the early stage that made certain that both urban and rural interests were represented and had a chance to be involved.
MR. WILLIAMSON: Well, that's really a good point. Can you say anything about the size of the districts? Why was starting out with the 21 -- possibility of 21 members on a district board?
MR. ORTON: Well, of course, we were consolidating hundreds of directors down to a pretty small number to begin with, so you had to find a way to accommodate. And I guess maybe that was also a step in the direction of trying to be certain that there wasn't that pervasive feeling of a loss of local control, so that there were people from all over the area, obviously, that were on those boards of directors. I'm not sure that I ever agreed that 21 was a good number. But that was what it took to politically make the system work, obviously. And we've got a lot of districts that still have 21 board members. I think that's too many. I thought it was that way then and I think it still is today, quite frankly. I think when you've got a governing board that is that big, it's easy to hide behind numbers and not be an active part of the decision-making process. And in this day and age when the districts have the responsibilities they've got, I think it's even more critical that we have smaller governing bodies maybe, so that there's more responsibility taken.
MR. WILLIAMSON: Well, the Salt Valley Watershed here in Lincoln, they are good supporters and they had 21 members.
MR. ORTON: You think that might have been maybe the reason why that occurred?
(Laughter.)
I think that was probably true of the other advisory boards, too, wasn't it, like the one in the Central Platte? They had a board with 21.
MR. WILLIAMSON: Right. They had large numbers, because they were sort of patterned after the Salt Valley Watershed, which had been in operation for a long time and had great management and great board members. So, they -- and they saw the need for it. They didn't worry about going away.
MR. ORTON: Well, we had good strong support from those kinds of interest groups and I think that was part of the reason that the effort was successful.
MR. WILLIAMSON: That's for sure. Are there other things that you'd like to comment on?
MR. ORTON: Well, I expect I could editorialize for a long time, but maybe that would get me in more political trouble than I deserve.
(Laughter.)
I have to say that the NRDs over the years have been just great. They've done good things for Nebraska. They've allowed for regional decision-making, because we have such a diversity of geology, hydrology, and all of those things that I think are important to have some unique characteristics in various parts of the state, what we did there was a good thing. But I also want to reiterate what I said 30 minutes ago and that is, we should not be reluctant to look at change. After 40-plus years of the NRDs, maybe there are some things that we could do better, and I think we need to constantly be looking at that. The NRDs are the result of one part of a state water planning process that was a very big effort, obviously, in Nebraska. We were kind of leaders in the state water planning activity back in those days in the '60s and '70s, and that's kind of gone away. And that frustrates me a lot, because some of the things that go on today need strong State policy positioning and we don't do much of that at this point in time. We've left that responsibility, right, wrong, or otherwise to the NRDs. And while they do a good job at the local level, they might not always be doing the things that are in the best interest of the broader picture for the state. So, I think it's time to look at some of those kinds of things. We've tried unsuccessfully for many, many times over the years to get the state better invested in water and we still aren't there. And it's been left to the NRDs and to the individual landowners to make all of the investments in water. And I think that's wrong. It's wrong from the standpoint that we've let people do those things, in fact, even encouraged them. And now we tell them they have to change, because they've gone too far in one direction or another. We get what we deserve, because we weren't investing ourselves in that process. So, while Nebraska's doing some really great stuff, there's a lot of things we still don't do very well, and I think we need to always be looking at that possibility.
MR. WILLIAMSON: Well, those are great comments, Lee, and I want to commend you. You started out as a young attorney stepping into the water, and you've been working very diligently for a great many years on water issues in many areas, and certainly in the state of Nebraska, so, you've added a lot to our historical discussion of the NRDs. And thank you so much for taking the time to do this interview and giving your views on how the -- the start of the NRDs and some of the things that have happened that time, so thanks a lot.
MR. ORTON: Thanks for the opportunity.
MR. WILLIAMSON: Our pleasure