President Trump today signed an executive order telling the EPA and the Army Corps of Engineers to review the so-called waters of the United States (WOTUS) rule created under the Obama administration, which attempted to usurp dominion over every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.
“We’re going to free up our country and it’s going to be done in a very environmental and positive environmental way, I will tell you that,” Trump said. “[We will] create millions of jobs, so many jobs are delayed for so many years that it’s unfair to everybody.”
Trump ordered the federal agencies to review a 2006 opinion by the late Justice Antonin Scalia, that reduced the scope of the act by defining “waters of the United States” as only permanent bodies of water and not the occasional result of rainfall.
Nevada was one of 23 states to file suit over the WOTUS rule. The Supreme Court ruled this past summer that property owners had a right to sue in court over permitting decisions. The federal agencies had contended property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.
In December 2010, the Hawkes Co. applied for a permit to mine peat on property in Minnesota. More than a year later the Army Corps denied the application, saying the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away.
In the opinion of the court, Chief Justice John Roberts pointed out the definition of WOTUS used by the EPA and the Corps includes “land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”
Roberts also noted that a specialized individual permit on average costs $271,596 and 788 days to complete. He said the permitting process can be “arduous, expensive, and long.” He left out futile, since the process never ends.
Nevada Attorney General Adam Laxalt applauded the judgment, “This unanimous U.S. Supreme Court decision vindicates our position that the Obama administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions. The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”
What kind and how much of a pollutant is dumped is far more pertinent than the size of whatever body of water it first encounters. Since the smaller wetlands, streams and ditches collectively contribute mightily to the contents of our greatest rivers and lakes, it is both arbitrary and ineffective to regulate only those polluters that dump directly into a large body of water. The focus should be on obtaining the maximum amount of pollution control at the lowest possible total cost, which must be fairly distributed. Easier said than done, but at least not arbitrary.
Rainwater collecting in a horseshoe imprint is not a wetland…that is unless you work for the federal government and want to harass ranchers, farmers and churches.
I said what kind and how much are important. A hoof print pretty much guarantees that the how much is not much, so usually, it would merit no attention, but if the hoof print contained a lot of plutonium, then it would deserve attention after all, wouldn’t it?
This is exactly why the overreach of the feds needs to be investigated, the US Attorney’s promulgating these types of attacks on citizens need to be fired and the Supreme Court of the United States needs to stay these faulty rulings. This is a travesty of justice and subversion of the US Constitution…as well as meddling in issues that belong to the purview of the states.
“Licensed to Lie: Exposing Corruption in the Department of Justice”…or as I like to call it, prosecutors with unlimited budgets run amok…putting innocent ranchers, farmers, and citizens in prison…to silence, scare and intimidate anyone else who may dare speak out against these injustices. The founding fathers would be mortified by these heavy handed tactics and the tyranny of the federal behemoth.
At one time the Hage family was awarded $14 million, but the deathless federal prosecutors continued to appeal and appeal until they found a liberal court on which none of the judges knows a damned thing about ranching.
Yeah the super crazy judge that issued the original super crazy decision got “benched”.
Seriously, when a judge continues to consistently demonstrate that he doesn’t believe in the law, and dang sure won’t do what the law says he’s obligated to do, it’s the best place for him.
That might be true for those of you who live in the topsy turvy world of the administrative state, making up the rules as they go. A place where up is down, black is white, round is square and if you don’t comply they will grind you and your loved ones into the dust with unlimited tax dollars fueling their personal vendettas and racketeering schemes. Wait til it’s your turn in the barrel…and no one will listen, nor come to your aid. The original judge’s ruling was spot on in defining the nefarious misdeeds of the unelected agencies against the Hage family and their personal property. But of course Harry Reid and Barrack Hussein Obama and their henchmen US Attorneys would make damn sure that it was their way or the highway.
I prefer to live in Realville…where you can smell the stench of this kind of corruption from miles away. I fear the only remedy to this prosecutorial madness is a Convention of States…to return this land to some sanity and preserve the liberty and freedom from those who daily trod upon the the rights of the people and their constitution. Ask the Hage family if they fear for the republic…
The Hage family wouldn’t have had any problems if they had just done what most people do; obey the law, pay their bills, and don’t try to steal from everyone else.
That’s bullshit and you know it!
Judge Smith ordered the judgment for the Hages, not Judge Jones.
“In 1983, Plaintiffs received 40 letters from the Forest Service charging them with various violations,” wrote U.S. Court of Federal Claims Judge Loren Smith in 2008. “In the same year, the Forest Service paid 70 visits to Plaintiffs. Following the 40 letters and 70 visits, the Forest Service filed 22 charges against Plaintiffs. Many of these complaints cited issues of fence maintenance, some of them extremely minor infractions. (One was a loose staple in a fence post.) In addition, the Forest Service insisted that Plaintiffs maintain their 1866 Act ditches with nothing other than hand tools.”
Judge Smith — citing the Fifth Amendment prohibition against “taking” private property without just compensation — awarded the Hage estate $4,220,431.20, plus interest and attorney’s fees and costs. The total has long since topped $14 million, but the Hages have not seen a dime as various appeals courts have ducked and remanded and dismissed.
“First, Plaintiffs had a significant investment-backed expectation in the ditches, as these were the primary means for conveyance of water for irrigating the Ranch. The ditches were rights purchased along with the Ranch,” Judge Smith wrote. “Second, Plaintiffs offered ample evidence that the Forest Service had engaged in harassment towards Plaintiffs, enough to suggest that the implementation of the hand tools requirement was based solely on hostility to Plaintiffs. Third, the economic impact of this regulation was considerable; it would have been economically impractical for Plaintiffs to hire enough men with hand tools to perform any sort of substantial work clearing the ditches.”
Judge Smith ruled the Hage ranch had a right to access its vested water rights, but the 9th Circuit basically ruled the ranch had no right to let cattle graze while getting to that water.
Thank you Mr. Mitchell!
As you know Thomas, it wasn’t the Ninth Circuit Court that reversed Judge Smith’s original decision, it was the Federal District Court of Appeals in Washington D.C. One of the most notoriously conservative in the country. They found that Hage just didn’t do what he was supposed to do if he wanted to send his cattle over other peoples land and get to water that he had a property interest in; file for the permits and obtain them.
Instead, he just refused to do what the said he was required to do if he wanted to cross over other peoples land. That was wrong, and that is what the DC Circuit Court said. And of course, that is what the law is. God knows, he had plenty of very high priced legal talent trying to fight for his ability to violate the law, maybe one them should have just told him to stop trespassing, and get the permit he needed.
Instead, he wanted to become some sort of martyr for his particular cause, wrongheaded as I think it was, but he don’t have no one to blame, for getting into the situation he was, but himself.
This is perfect for the likes of Patrick.
A never ending story if ever there were one.
The story is never ending…because if you don’t kneel and kiss the jack boots of the federal agencies…they will crush you (after they bankrupt you!). The gestapo tactics of the feds has been well documented by Judge Smith, neighbors, friends and family of the Hages.
This is the kind of nonsense that he who must not be named keeps defending…
All I said was that if Wayne Hage had done was the law required, most specifically got a permit so that he could take his cows across land that didn’t belong to him, this all could have been prevented. God knows his neighbors didn’t have the same problem he did, cause they actually got the permits they needed.
Instead, Wayne decided he wasn’t about following the same law everyone did, and he was just going to ignore it, and trespass over property that didn’t belong to him. That was wrong.
And I don’t know why anyone would defend it.
The defense surely isn’t based on any reason though, and I have to say, given the incredibly bad reputation ranchers have earned, throughout the history of this country, particularly when it comes to respecting the property rights of others, it is even more difficult to understand.
In 2013 a forest ranger actually testified in his deposition that despite the right to use water, Hage had no right to access it. He said someone with water rights but no grazing permit would have to lower a cow from the air to drink the water.
The BLM refused to renew the Hages’ grazing permit.
The Hages first obtained their permit to cross and otherwise feed their cattle on public land in 1978. The Hages almost immediately began violating the terms of their permits by, among other things, takng more cattle onto the land than were permitted.
For more than 10 years (until around 1990) the Hages continued to violate the terms of the permits they were issued. Constant warnings were issued to the Hages, which were largely ignored nail finally, in 1990, the BLM imposed a 20% reduction in the Hages permitted allotment. The Hages were again told the minimum number of cattle they must maintain to continue their permit, but again they either ignored it, or failed to comply.
In late 1990, after more than 12 years of being in violation of the terms of their permit, the Forrest department revolved the permit. The Hages failed to reapply.
As I said, if they had done what the law said they were obligated to do, even within that 12 year period, they would have been fine. Instead, they didn’t and it’s no ones fault but their own.
Rangers accused the Hages of overgrazing and undergrazing. Can’t win.
I got to say Thomas, that minimum number seemed strange to me too.
But I really don’t see that the Forrest Service acted so unreasonably I mean 12 years without taking any real action other than decreasing their allotment by 20%, and still Hage just ignored them?
So much the Hages could have done, and God knows they had plenty of time to do it in, and they just didn’t.
Sure, object to the government, object to authority, get mad, but at the end of the day, when the hammer comes down, don’t whine that it’s all someone else’s fault. They had no one to blame but themselves.
Hard to play by rules that keep changing or never are made permanent.