Water is emerging as the “new oil.” Water has always been a precious commodity, particularly in arid climates and underdeveloped nations. Access to potable water is a fundamental right. As such, disputes over access to water have become increasingly common. In regions with growing populations these disputes have become volatile. The Middle East is no exception, and the water disputes in that region are further complicated by longstanding geopolitical tensions.

The history of water-related conflicts in the Middle East stretches over the past 5,000 years. Currently, the Israeli-Palestinian water dispute is center-stage in the international arena. Israelis and Palestinians coexist in a small region with a large population density.  The physical proximity of the two populations necessitates close collaboration with respect to use and allocation of scarce natural resources. Specifically, the Israeli-Palestinian conflict can be attributed, in part, to a dispute over the two major shared water sources: the surface water that originates in the Jordan River Basin and the mountain aquifers that extend from the West Bank into Israel.  The Palestinians believe that the Israelis wield their power to impede the flow of water to Palestinian communities.  In contrast, Israelis allege that Palestinians grossly mismanage their limited water supply to the detriment of all users.

The shortage of surface water and groundwater resources in the region inevitably exacerbates the already explosive conflict between the two communities. This makes finding a resolution to the on-going water shortage, which is now elevated to a crisis level, even more pressing.  Rather than permitting this shortage of water to add to the mounting tension in the region, this dispute over a scarce resource should be viewed as an opportunity to cooperate and find a solution that benefits both parties and helps establish the foundation of trust necessary to facilitate legitimate peace negotiations.  Though the security of Israel, maintenance of human rights and the Israeli settlement policies are each legitimate political concerns, the serious health dangers associated with open sewage, lack of water, and empty or polluted wells should be considered of equal importance by the actors in the region and the international community.


High-tech irrigation systems and public awareness aid Israelis in achieving more efficient water use than their Palestinian neighbors. Israel has a high per capita water use and has taken a firm stance on its unwillingness to reduce the water supply for urban or agricultural use. Most importantly, the Israelis view water as a security issue. Water is a political vehicle wielded to gain a stronger footing in the disputed territories. Furthermore, the Israelis believe the Palestinians misuse and mismanage their shared water supplies, thereby posing a direct threat to Israel.

The Palestinians believe water use is a right, which they are continually denied.  Palestinians view the denial of water rights as a major impediment to the Palestinian economy. A 2009 report by the World Bank asserted that the Palestinian economy endured substantial costs due to lost opportunities in irrigated agriculture as a result of water limitations. The study estimated the loss as 10% of GDP and 110,000 jobs. Moreover, health concerns also exist. According to UNICEF, over 90% of the water taken from Gaza Coastal Aquifer (“GCA”), Gaza’s sole aquifer, is insufficient for human consumption. Furthermore, the Palestinians believe that they are unjustly burdened by having to purchase their water from overpriced and unregulated sources. More than 80% of the people in Gaza purchase drinking water from unregulated, private vendors, despite the water’s likely contamination. This imposes an additional financial and health burden on the people of Gaza.

UNICEF officials assert that some families are paying as much as a third of their household income for water. The World Bank determined that Israel consumes 80% of the water available in the mountain aquifer which runs the length of the occupied West Bank  and is shared with other occupants of the West Bank.  According to the World Bank, Israelis use 240 cubic meters of water per person each year; West Bank Palestinians use 75 cubic meters, and residents of Gaza use 125 cubic meters. However, it is noteworthy that in some areas of the West Bank, Palestinians report living on as little as 6 cubic meters of water per person per year.

Historically, Gaza has been dependent upon its coastal aquifer because there are no streams or rivers.  However, due to water mining—where water is pumped out of the aquifer at a higher rate than replenished—seawater from the Mediterranean has permeated into the groundwater. As a result, the water salinity has reached undrinkable levels.  Moreover, this water is also contaminated by raw and partially treated sewage coming from Gaza every day and flowing into the shallow coastal waters. One recent United Nations report predicted that the aquifer will be inoperative by 2016 because of overuse and contamination.

While some politicians attempt to divert attention to other issues, 1.7 million Palestinians are running out of fresh drinking water in the Gaza Strip. Although the Oslo Peace Accords of 1993 ostensibly alleviated much of the tension between the nations over water allotment and sewage infrastructure, the fundamental dilemma remains that both sides have differing viewpoints of what should be achieved through a policy of water sharing. The Israeli government believes it has satisfied its obligations under international law. The Palestinians’ focus is on their desperate situation with respect to water rights. The disparate perspectives make collaboration very difficult The Joint Water Committee, established in accordance with the Oslo Peace Accords, has failed thus far to produce effective results and reform.


Environmental improvements in the region are stymied by political disputes. These disputes occur not only between the Israelis and Palestinians, but also among internal Palestinian political factions.  One example of the political impediment on the issue of water rights is illustrated by the completion of a wastewater treatment plant in November, 2013 to alleviate pollution of the GCA, which serves 400,000 people in the northern Gaza Strip. Gaza is reliant on Israel for its electricity supply. However, Israel is refusing to provide the additional three megawatts required to power the treatment plant until Gaza’s current electricity bills are paid. Hamas and the Palestinian Authority disagree over who should pay the debt. Until this debt is paid, or an alternative electricity source emerges, untreated sewage will continue to pollute the coastal aquifer. As a result, the contamination threatens not only the individuals in the Gaza Strip, but an Israeli desalination plant in Ashkelon.


Although there have been valiant efforts by a number of non-governmental organizations (“NGOs”) to ameliorate this water crisis, the efforts are piecemeal and have largely had a minimal effect. Now, the involvement of the Friends of the Earth organization (“FoE”), has the potential to make a significant impact. This group has extensive financial resources and has identified the water conflict between Israel and Palestine as its first priority. As a result, it has begun to attract the international political attention necessary to alleviate this crisis.

The FoE campaign “Water Can’t Wait” is aimed at drawing global attention to the water crisis facing Gaza. FoE placed an hourglass full of polluted water in Tel Aviv’s central Rabin Square. This effort was a visual representation on display of the tainted water both Israelis and Palestinians encounter.   Other organizations, such as UNICEF, have facilitated the construction and implementation of eighteen small neighborhood desalination plants, providing free drinking water to 95,000 people. These grassroots efforts have had some tangible positive impact.  However, these small NGO organizations will only be able to make small improvements absent a monumental shift in government policy. Nevertheless, there is some hope emerging from even these incremental measures.

Cooperative work on water issues has also led to greater collaboration on other aspects of the Israeli occupation. For example, the Palestinian village of Wadi Fuqin and the Israeli community of Tzur Hassadeh united to tackle water issues in 2010 and also came together to block construction of a separation wall, designed to separate the two communities by a physical barrier. The previous collective effort between these two communities to solve their mutual water issues built a foundation of trust. Working together to block the wall can serve as a model where everyone benefits.


Israel has a larger water supply due to large-scale desalination. Moreover, both sides need to deal with untreated sewage. Reigniting negotiations over water as a chief priority is logical from an economic, environmental, and partisan perspective. Both peoples could improve their living conditions. Palestinians would not have to purchase water from private companies. Furthermore, pollutants from rivers and streams would no longer affect the Israelis. A final agreement regarding water will provide the necessary foundation of trust required to put the political process between Israel and the Palestinians back on track.

Incremental problem solving between the two peoples, beginning with water and sanitation, can advance the overall peace effort by reaching a resolution on one of the issues that detrimentally affects both sides. The first step to finding a solution to shared water is to acknowledge that there is a water crisis and water disparities exist between Israelis and Palestinians. Next, Palestine will need independent water rights, which will require a proper infrastructure and enough water to manage. One potential avenue to accomplish this would require Israel to recognize Palestinian water rights to the Jordan River. Moreover, the Israeli government can provide the Palestinian Water Authority with water, free from charge. This can all be done without discussing more political and philosophical disputes, such as settlements or the sharing the sovereignty in Jerusalem.

The Palestinian Authority would then distribute the water to Bethlehem, Hebron, and Yatta, in the West Bank, where the need for water is greatest. This action would bolster the Palestinian public support for the more moderate Palestinian Authority, demonstrating that tangible concessions can stem from negotiation, rather than violence.  The Palestinian Authority, in turn, could make a goodwill gesture and declare that the sewage treatment plant, piloted by the World Bank in Hebron, will expand to include the treatment of all Palestinian domestic and industrial sewage that currently permeates into Israel vis-à-vis the Hebron Stream. The United States could lend financial support to this effort, which is estimated to require an additional $30 million contribution. Israel would likely garner wide support, particularly in Beersheba, where the people are inundated with untreated sewage. There is potential for change. Water can be the key to facilitating this change.


Environmental problems transcend ethnic, tribal, or sectarian boundaries. Given the geopolitical significance of the Middle East, it is imperative to resolve a dispute that has significant ecosystem repercussions within the greater region. It is evident that fair, sustainable, and equitable relations between Israel and Palestine cannot occur without agreed upon arrangements for water sharing. While the insatiable need for fresh water in an arid climate is currently wielded as a political tool, cooperation in the reallocation and innovation of water and water-related technology has the capacity to unite the nations.  The thirst for adequate supplies of potable water is a common denominator. With courage and foresight the leadership of both the Palestinians and Israelis can use the region’s water crisis as a bridge to further collaboration and an easing of tensions.


The title picture is of the Jordan River in Israel. This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license and the owner does not endorse this blog.


Arwa Aburawa, Can water end the Arab-Israeli conflict? Aljazeera (last visited Feb. 15, 2014).

Schein, Jonah, The Role of NGOs in Addressing Water Access in Israel and the Palestinian Authority, 5 Sustainable Development Law & Policy 19 (2005). (last visited Feb. 15, 2014).

Matthew Kalman, Gaza warned of looming water crisis: Friends of the Earth Campaign highlights problem which it says is being exacerbated by hold-ups in Middle East peace process, The Guardian, Jan. 30, 2014  (last visited Feb. 15, 2014).

Rory McCarthy, Israelis get four-fifths of scarce West Bank water, says World Bank: Palestinians losing out in access to vital shared aquifer in the occupied territories, The Guardian, May 27, 2009. (last visited Feb.15, 2014).

Catherine Weibel and Sajy Elmughanni, A fresh solution to Gaza’s water crisis, UNICEF, Jan. 14, 2014, (last visited Feb. 8, 2014).

Thomas L. Friedman, Whose Garbage is this anyway? The New York Times, Feb. 8, 2014 (last visited Feb. 13, 2014).

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The Palestinians’ West Bank: Squeeze them out, The Economist May 4, 2013, (last visited Feb. 15, 2014).Oded Eran & Gidon Bromberg, A New Road Map to Middle East Peace: Start with Water, Friends of the Earth Middle East. (last visited Feb. 20, 2014).

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Middle Niobrara Natural Res. Dist. v. Dep’t of Natural Res., 838 N.W.2d 242 (Neb. 2013) (holding the Natural Resources Districts’ allegations lacked standing because they did not allege any legal right, title, or interest in the subject water of the Niobrara River and Thomas Higgins’ allegations lacked standing because the harm was speculative and not distinguishable from harm the harm that would be caused to any other landholder within the natural resources district).

The Middle and Lower Natural Resources Districts (NRD) and Thomas Higgins unsuccessfully appealed to the Supreme Court of Nebraska the Department of Natural Resources (DNR) dismissal of their action for lack of standing.  The purpose of the action was to object to Nebraska Public Power District’s (NPPD’s) application to appropriate an additional 425 cubic feet per second of natural flow from the Niobrara River.  The NRDs are responsible for the management of ground water within their districts.  Higgins is the owner of real property in the Niobrara River Basin who holds senior water rights and pending surface water appropriations from the Niobrara River.  The DNR dismissed the appellant’s objections sua sponte for lack of standing.  According to DNR, NRD lacked standing because it did not allege any legal right, title, or interest in the subject water of the Niobrara River and their allegation of harm was based upon mere conjecture.  Higgins did not fulfill the standing requirement because no legal right existed with a pending application.  Further, if DNR granted the pending applications, Higgins rights would be senior to NPPD and there was no evidence of credible harm.

The Court considered four issues on appeal.  The first issue was whether the director erred when he determined that NRD did not have a cognizable interest to fulfill the standing requirement.  The second issue addressed was the conclusion that Higgins would not be adversely affected in a manner sufficient to confer standing.  The third issue was that DNR applied an improper standard of review.  The final issue was that DNR failed to consider the impact of the decision on the public interest.

The Court affirmed the DNR’s assertion that the NRDs did not have standing.  The NRDs failed to allege any legal right, title, or interest and their allegations were based on mere conjecture.  The NRD’s argued that the granting of NPPD’s application would cause a portion of the Niobrara River to be fully appropriated in the future and that a threatened injury would satisfy the standing requirements.  The NRDs further argued that they had standing because they were responsible for the management of ground water from the Niobrara River.  The Court, in a previous case, determined that standing exists when duties are placed upon NRDs when a fully appropriated designation was made.  In this case, however, no fully appropriated designation was made and it was merely speculation that the application might be granted and the application might lead to a fully appropriated designation.  NRDs also tried to argue that the appropriation would preclude the use of water for irrigation and limit their tax base.  The court ruled that the harm suffered by the NRDs needed to be more particular and to a more direct and identified interest.

Higgins also lacked standing because he did not allege sufficient harm.  Higgins argued that the grant of NPPD’s application might increase his property taxes and it might affect the real property value.  These allegations were both speculative and not actual or imminent.  Higgins further argued that the grant might affect his existing appropriations and increase the cost of his pending applications.  However, Higgins failed to explain how his rights would be affected when his rights were both upstream and senior to NPPD’s rights.

The third issue the Court addressed was whether the DNR applied the correct standard of review.  The appellants argued that the DNR failed to assume that all of the allegations were true and view them in the light most favorable to the appellants.  The DNR used the correct standard of review because the allegations did not allege an interest or an injury which was sufficient to confer standing.

Finally, the Court addressed whether the DNR should deny an application if it is demanded by the public interest.  The Court concluded it did not matter whether NPPD’s application was in the public interest or not because the appellants did not have standing.  Neither NRD nor Higgins could assert the public interest.

Because neither the NRDs nor Higgins established an interest or injury sufficient to confer standing, the Court affirmed the decision of the DNR.

Stephan, J., Concurring in Part and Dissenting in Part

Stephan concurred in the determination that NRD did not have standing.  It was merely speculative that the grant of NPPD’s application would lead to a determination that the water basin was fully appropriated.  Further, no single appropriation causes a fully appropriated decision and one could argue that any appropriation would cause the basin to become fully appropriated.  This would allow the NRDs to challenge any surface water appropriation.

However, Higgins’ claim was based on his own water rights and he had a pending application for another appropriation.  Higgins allegations that the grant of NPPD’s application might increase his taxes and affect the value of his property were not enough to confer standing.  However, Higgins’ allegations that the grant would adversely impact his existing appropriations or preclude or increase the cost of his pending application were enough to confer standing despite the fact that Higgins did not allege how the appropriation would adversely affect his water rights.

Connolly, J., Dissenting

Connolly dissented because he believed the majority ignored the evidence of imminent harm that would result from the approval of the application.  The Administrative Procedure Act (APA) permits the hearing for a contested case, which means a proceeding where a state agency is required to determine a parties’ legal duties, rights, or procedures.  Further, the APA defines an interested person as one who is or could be adversely affected in a legally cognizable way.  Both the NRDs and Higgins have alleged sufficient facts to show that they would be adversely affected by DNR’s approval of the NPPD application.  Thus, both the NRDs and Higgins have standing.


The title picture is of the Niobrara Headwaters and is licensed to Patrickdf under a Creative Commons Attribution-Share Alike 3.0 Unported license. The owner of this picture does not endorse this blog. 

United States v. Hamilton

United States v. Hamilton, 952 F. Supp. 2d 1271 (D. Wyo. 2013) (finding on a motion for partial summary judgment that (i) no genuine dispute existed that Slick Creek is a water of the United States subject to the Clean Water Act; but (ii) a genuine dispute of material fact existed regarding whether Hamilton’s farming activities precluded application of the Clean Water Act’s recapture provision).

This is a case of first instance before the United States District Court for the District of Wyoming (“court”) regarding David Hamilton’s activities when he filled part of Slick Creek (“Creek”) and altered the course of the Creek’s progression. The Government brought suit against Hamilton under the Clean Water Act (“CWA”) because Hamilton filled Slick Creek without first obtaining a discharge permit from the Army Corps of Engineers (“Corps”). The Government filed for summary judgment on its prima facie case. Hamilton contested two major issues: (i) whether Slick Creek is a water of the United States that is subject to the CWA, and (ii) whether Hamilton’s filling activities were subject to any of the exemptions to the CWA’s permit requirements.

Slick Creek is a waterway sourced mainly by irrigation runoff but also from natural rainfall and melted snow. The Creek runs from Worland, Wyoming into the Big Horn River, which flows into the Yellowstone River and eventually the Missouri River. In 2005 Hamilton dug up the Creek so that it would run through a straight channel across his property. This allowed him to plant new crops where the Creek used to flow. The EPA subsequently discovered that Hamilton filled the Creek without the required discharge permit under 33 U.S.C. § 1311(a). The EPA then sent a compliance order to Hamilton, but he refused to return the Creek to its previous condition. Consequently, the Government filed suit and sought summary judgment to compel Hamilton to restore the Creek and pay civil fines.

The court first considered whether the Government was entitled to summary judgment on the determinative issue of whether the Creek was a navigable water of the United States. The court concluded that the Creek meets the requirements of a water of the United States under the Rapanos v. United States plurality test because, as the Government contended, it is a “relatively permanent, flowing body of water that connects to a traditional interstate navigable water.”

The court agreed with the Government because the evidence showed that the Creek had been full every year since 1962 and that it lacked vegetation along the waterway, as is consistent with yearly water flow. The court also concluded that the Creek connected to a navigable waterway because the Creek drains into the Big Horn River, which is navigable in fact. The court rejected Hamilton’s argument that the Creek was manmade because it was mostly filled by farming irrigation by noting that prior precedent – namely, Rapanos – shows that manmade water bodies can be waters of the United States. Additionally, the court rejected Hamilton’s argument that the Creek is not permanent because it fluctuates with farmers’ irrigation activities by noting that, regardless of the changing volume of flow, the Creek flowed continuously year-round. Consequently, the court granted the Government’s request for summary judgment on this issue because the Creek is navigable and therefore subject to the CWA.

The court next considered whether Hamilton was liable under the “recapture” provision of the CWA.The CWA contains a general prohibition against any discharge of a pollutant or fill material into waters of the United States without a permit. The CWA, however, contains exceptions for farmers carrying out normal activities and for the maintenance of an irrigation ditch. Hamilton argued his actions fell under both of these exceptions. The Government, however, argued that the CWA’s “recapture” provision trumps the exceptions in this case. The CWA recapture provision requires that, even if someone is exempted under those activities, they must obtain a discharge permit if the activity brings an area of the navigable waters into a new use that impairs water flow. Hamilton presented testimony that prior landowners used the filled portions of the Creek for farming activities. The court concluded that, given this evidence, it was still disputable whether the land Hamilton filled was previously farmland and therefore whether the recapture provision applied.

Accordingly, the court granted the Government’s request for summary judgment in part and found that the Creek is a water of the United States. However, the court denied the Government’s request for summary judgment on the applicability of the CWA’s recapture provision.


The title picture is part of the public domain in the United States because it was prepared by an employee or officer of the United States government as part of their employment. The United States government does not endorse this blog. 

Reep v. State

Reep v. State, 2013 WL 6835003 (N.D. 2013) (holding the anti-gift clause of North Dakota’s constitution precludes construing a state statute as a grant of the State’s equal footing mineral interests under the shore zone to private upland landowners).

Eleven named owners of land next to navigable waters in North Dakota (“upland owners”) sued the State of North Dakota (“State”), seeking declaratory judgment that they, not the State, owned the minerals under the shore zone.  The landowners appealed to the Supreme Court of North Dakota (“Court”) from the district court’s grant of summary judgment in favor of the State.

When North Dakota joined the Union in 1889, the equal footing conferred onto the State constitutional rights to the land and mineral interests under its navigable waters from high watermark to high watermark.  Although this conferral included the right to allocate its property interests, the equal footing doctrine required North Dakota, by virtue of its sovereignty, to hold its shore zone interests in trust for the public.  The anti-gift clause found in N.D. Const. art. X, § 18 further protected the public trust by precluding the State from gifting its mineral interests to any private entity.

At issue in this case was N.D.C.C. § 47-01-15, which provides that private landowners next to navigable waters “take to the edge of the lake or stream at low watermark.”

The upland owners argued the district court’s holding was contrary to the Court’s decision in State ex rel. Sprynczynatyk v. Mills which they construed as holding that upland owners next to navigable waters have full interests in the shore zone under N.D.C.C. § 47-01-15.  The upland owners further contended that the State’s public trust and equal footing obligations did not relate to the proprietary privileges of ownership of subsurface mineral interests under the shore zone.  The upland owners further contended that the statute did not violate the anti-gift clause.

Conversely, the State argued that its rights to shore zone mineral interests extended from high watermark to high watermark under the equal footing doctrine.  The State claimed N.D.C.C. § 47-01-15 was a rule for construction, clarifying the extent of a grantor’s conveyance to the grantee, rather than granting public mineral interests to private entities.  The State further contended that a construction of the statute as a grant of the mineral interests to private entities would violate the equal footing doctrine and the anti-gift clause of N.D. Const. art. X, § 18.

The Court first examined Mills to determine whether N.D.C.C. § 47-01-15 is, as the upland owners contended, an absolute grant of shore zone interests to private landowners next to navigable waters.  In so doing, it reiterated the statutory interpretation in Mills, wherein the Court determined the word “takes” in N.D.C.C. § 47-01-15 was ambiguous statutory language for a rule of construction, and not a grant of ownership.  Examining the more specific use of the word “ownership” in Champlain v. Valentine, coupled with the introductory clause in N.D.C.C. § 47-01-15, the Court found a legislative intent that the statute does not grant a riparian landowner absolute ownership of the shore zone.  Rather, the Court agreed with the district court that N.D.C.C. § 47-01-15 is a rule of construction for determining the boundary for grants of riparian land.  The Court emphasized that its construction avoided an interpretation that would grant a private party a gift in violation of the state constitution’s anti-gift clause.

Having concluded that the upland owners’ reliance on Mills was misplaced, the Court turned to the law governing the State’s ownership of mineral interests under the shore zone.  Examining the public trust doctrine, the Court acknowledged a newly admitted state’s power to allocate its mineral interests but emphasized that power as subject to the public trust doctrine.  The Court discussed some states’ allocation of ownership of the shore zone to the upland owner to the ordinary low watermark, and other states’ decisions to extend an upland owner’s title only to the ordinary high watermark.  The State in this case claimed its mineral interests extended to the ordinary high watermark under the equal footing doctrine and that its ownership was thereafter governed by State law, including the anti-gift clause of N.D. Const. art. X, § 18.

The Court turned next to the adoption of the anti-gift clause in 1889 and its development through subsequent case law.  It determined that unlike previous cases, this case did not raise an issue about the State engaging in an industry, enterprise, or business.  It proceeded to examine a holding in Arizona Ctr. For Law v. Hassell, which determined statutory provisions substantially relinquishing Arizona’s equal footing interest in navigable riverbeds violated Arizona’s anti-gift clause.  It also cited Solberg v. State Treasurer, which held that a statute directing the State to release a reserved mineral interest to a prior owner violated the anti-gift clause because the statute had the effect of transferring State property as a gift.

The Court found that the precedent in Hassell and Solberg favors a determination that N.D.C.C. § 47-01-15 did not allocate the State’s equal footing mineral interests in the shore zone to upland owners.  The Court noted that this construction was in keeping with the Court’s presumption that statutes are written in compliance with state constitutions and in favor of public interests over private interests.  However, the Court further concluded that N.D.C.C. § 47-01-15 would allow an upland owner to take the State’s full interest to the low watermark if the State contractually grants or conveys parts of its equal footing interests to upland owners by deed.  The Court underscored that receipt of grants or conveyances from the State is subject to the restrictions of the public trust doctrine and is invalid where the deed provides otherwise.

The Court finally examined whether the upland landowners presented any factual support to show a grant of mineral interests by the State or a successor to the State, and found that they had not.  It therefore concluded the district court did not err in concluding the State owns the mineral interests under the shore zone.

Consequently, the Court affirmed summary judgment for the State, but stressed that its decision does not preclude an upland owner from taking to the low watermark if it can establish a chain of title wherein the State granted its equal footing interest to the upland owner.


The title picture is of Wild Rice River in North Dakota licensed under the Creative Commons Attribution-Share Alike 2.5 Generic License to Tim Kiser, who in no way endorses this blog.