The ESA is ... Turning energy into solid waste
(Note: This is an outstanding article written by a clear-eyed patriot lady from the Pacific Northwest who stands up with her rural neighbors wherever the need arises. America is blessed to be the home of "Pathfinder!") By Katherine Van Tuyl, Interim Secretary Pacific Region, People for the USA Medford, OR katielu@surfree.com Bureaucracy is a process for converting energy into solid waste. So goes a bumper snicker I spied recently, which concisely summarizes the needless waste of the Klamath Basin, its people, communities and economy in 2001. The Klamath Basin in southwestern Oregon is a vast, mostly flat, mostly arid area of fertile soil and marshes surrounding the Klamath River, which carries water from the Cascade Range to the Pacific. The Klamath Project, overseen by the Bureau of Reclamation, includes about 233,625 acres of land in Oregon and California. Its facilities include three major storage reservoirs, including Upper Klamath Lake, 7 dams, the Lost River diversion channel, five major pumping plants and 40 smaller pumping stations, and more than 1,400 miles of canals and drains. Construction was authorized under the Reclamation Act in 1905, with costs of construction to be repaid through the sale of water rights to homesteaders on the project lands. In 1905, California and Oregon ceded lake and marshland to the federal government specifically for conversion to agricultural use under the Newlands Reclamation Act. Principal crops include potatoes, alfalfa, cereal grains, onions, and hay. The annual precipitation averages about 14 inches, and the growing season is about 120 days. In a typical year, the tri-county Klamath Basin produces $100 million in hay, grains, and vegetables. This, in turn, produces an additional $250 million in economic activity in the various agriculturally-dependent communities throughout the region. Livestock herds, many now liquidated, were worth another $100 million in replacement costs. Never mind; Congress will send relief. On April 4, 2001, a federal judge ruled that the BOR's dam operations in the Klamath Basin violated the Endangered Species Act, which protects Coho salmon. The judge's ruling and a USFWS Biological Opinion released on April 6 that called for increased lake levels to protect shortnosed and Lost River suckerfish, prompted the Bureau to cut off irrigation water to 90% of the irrigated farmland in the Basin. There was no warning, and no discussion. Never mind the fact that many Basin farmers hold grant deeds giving them land and water "in perpetuity," signed by U.S. Presidents; awarded by a grateful nation to veterans of World War I and World War II. Never mind the U.S. Constitution expressly states " ... nor shall any person ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." There are so many things wrong with the Klamath Basin crisis, it's hard to know where to start. Traditionally, irrigation starts April 1. Last year's sudden cutoff found many fields already planted, awaiting water, then left to die and blow away. By May, much of the Basin's valuable topsoil had blown away, creating dustbowl conditions which spawned an eight-vehicle pileup and many other problems. Fortunately no one was killed. Sheep died in the fields for lack of water and pasture. Farm workers hit the road to find work, leaving their wives, children and homes behind. The Bucket Brigade brought 20,000 people together, according to police estimates; the largest protest rally in Oregon's history, in a peaceful demonstration of moral outrage and civil disobedience. Appeals to local, state and national governments, and repeated reopening of the headgates by frustrated citizens brought media attention and federal law enforcement, but no relief, and no justice. A delegation of farmers and ranchers took their case to Washington, but were told over and over, by elected Representatives and Senators, and high-level Interior Department officials, that their grant deeds were worthless. Inquiries about the rule of law and constitutional prohibitions against such government actions were answered with, "It's not that simple." The White House had already sent word there was nothing they could do. Never mind; it's for the greater good. Trust us! The Endangered Species Act was intended to save species from the depredations of humans and restore them to viable populations. Instead, it has cost America billions of dollars in direct costs and lost opportunities for economic growth. It violates property rights, has "saved" not one species, and to top it all off, the ESA expired on September 30, 1992; yet Congress continues to fund it. Another fact -- the irrigation projects of the Basin support rich, productive farmland and the Tulelake Wildlife Refuge, which together have created habitat for, and healthy populations of over 430 species of wildlife. The court-mandated water shutoff ignored the needs of this wildlife, including some threatened and endangered species, such as the American Bald Eagle. Never mind that the USGS/NAS "Nonindigenous Aquatic Species" for Coho provides a map showing Klamath inland Coho as "introduced," as early as the 1920s. It also references the UC (University of California at) Davis Information Center for the Environment (ICE) fish distribution site, which shows a map for native Coho which completely excludes the Klamath Basin. Never mind that "Population Genetics of Klamath Basin Suckers," written by Gregory J. Tranah and Bernie May clearly states " ... individuals of several of the populations (of four taxa of suckerfish) cannot absolutely be identified ... ," and " ...genetic and morphological evidence suggests that recent or historical introgressive hybridization may have taken place ... (Miller and Smith 1981; Harris 1991; Harris and Markle 1993.)" Never mind record runs of Coho salmon, which spawn in tributaries, not rivers. Never mind USFWS's own records which associate high suckerfish kills with high lake levels. Never mind the lack of conclusive counts of suckerfish. As a constitutional device, eminent domain involves Congressional consideration of the proposed condemnation, validation of conditions of necessity, notice to the property owner, determination of just compensation, and authorization of an appropriation bill, (in other words, "due process") all before the subject property is relinquished. Dr. Roger Pilon, Director of the Center for Constitutional Studies at the Cato Institute, points out the power of eminent domain does not provide carte blanche for government to do as it pleases. "There is no private right of eminent domain, nor could there be a public right either, for, again, individuals cannot give to the state, rights they do not first have, to give. What justification the power of eminent domain enjoys, then, must be taken from considerations of necessity, which are compelling only in exceptional cases and never from considerations of right." Roger Marzulla, a Washington, D.C., attorney who specializes in water rights and Endangered Species Act law, told Klamath Basin farmers that the loss of irrigation water and property values amounted to a "taking" of personal property under the Fifth Amendment of the U.S. Constitution. In a related action (Tulare Lake Basin Water Storage District v. United States), the United States Court of Federal Claims (April 2001) agreed with Marzulla, saying the federal government was "certainly free to preserve the fish; it must simply pay for the water it takes to do so." But, never mind. In the Klamath Basin, some have said the government chose to practice inverse condemnation. In breach of contract with many irrigators, and outright theft from others, lack of water rendered the associated farmlands without real value. In such a case the property is constructively condemned, and just compensation is still due the property owner, notwithstanding the lack of formal eminent domain proceedings. In actuality, the government appears to have chosen adverse possession in an attempt to acquire title to property that BOR rules and regulations state belong to the irrigators. According to Black's Law Dictionary, Sixth Edition, "In order to establish title in this manner, there must be proof of nonpermissive use which is actual, open, notorious, exclusive and adverse." I'd say that just about sums up the government's behavior last summer; but, never mind. Marzulla told irrigators "the Klamath Basin looks like Tulare case No. 2." In October of 2001, he filed a Fifth Amendment takings of the farmers' water rights by agencies of the federal government. The suit states, "As a direct and proximate result of the acts of defendant [the United States Government], plaintiffs and the landowners they represent have been damaged in an amount ? estimated to be in the range of $1 billion." If the court again agrees with Marzulla, how many Klamath Basins can the American taxpayers afford? Never mind! Roger Marzulla served as an assistant attorney general under former President Ronald Reagan and was Interior Secretary Gale Norton's boss while working for the Mountain States Legal Foundation. They remain close, personal friends. But addressing a rally in Klamath Falls, Marzulla said public resource management agencies are not interested in preserving species, but controlling land and water resources "as a means of controlling how you people live your lives." Last year Secretary of the Interior Gale Norton requested the National Academy of Sciences to review the biological opinions issued by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service about last year's operations of the U.S. Bureau of Reclamation's Klamath Project. In a report issued earlier this month, the NAS determined there was "no sound scientific basis" for the government's decision to withhold water from the Klamath Basin irrigators. The Competitive Enterprise Institute conducted a poll on the Endangered Species Act in August of 1995. It found strong support for ESA reform; much stronger than anything yet proposed by Congress. 11% supported the ESA as is, which regulates private land use without compensating landowners for their losses. 37% supported compensation for "any loss" incurred by landowners as a result of the ESA's regulation of private property. 35% supported the adoption of a non-regulatory, incentive-based approach to species conservation. "That 72 percent of those polled believe private landowners should not be made to suffer any uncompensated losses under the ESA is significant," said Ike Sugg, CEI's fellow in land and wildlife policy. "That 35 percent of them believe that even compensated takings are inferior to not regulating private property at all, is astounding." "The current Endangered Species Act is a disaster for both people and wildlife," he said. "This poll shows Congress lags far behind the public's support for real reform." Conservation efforts must be based on the best possible science. Listings must be made subject to current, factual information, with all data peer-reviewed, and open to public inspection. Currently the ESA imposes burdens and penalties on landowners when identified species or critical habitat is discovered on their property. Failing to recognize constitutionally protected private property rights, the ESA gives landowners no incentive to harbor endangered species. It places the burden on the backs of individuals, rather than society as a whole. The ESA must be reformed and voluntary measures to protect species encouraged. It must consider the social and economic impacts that listings create. It must not endanger human lives. Only then will the faith of the public in decisions by its government be restored. It is time to mind; lest we become the home of the flea, and the land of the slave. http://www.eco.freedom.org/el/20020601/kathy.shtml In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref. http://www.law.cornell.edu/uscode/17/107.shtml] |