Newspaper column: Water agency should not skirt law and courts

Clark County has sent to Congress a bill draft proposing that more than 50,000 acres of federal public land in the Las Vegas Valley be opened for private development, but dangling like a vestigial tail at the end of the 21-page proposal is an end-run around the courts and the law that could allow the currently stalled rural water grab by the Southern Nevada Water Authority (SNWA) to take place.

In 2017 a federal judge ruled that the Bureau of Land Management (BLM) could grant the water agency right-of-way for a 300-mile network of pipelines to take groundwater beneath White Pine, Lincoln and Nye counties, but first it had to come up with plans to mitigate the potential loss of wildlife habitat due to a draw down of the water table, as is required by the CleanWater Act and the Federal Land Policy and Management Act.

That task may be impossible, because federal studies show the interconnected aquifers are already at equilibrium — water that is already being drawn from the aquifers is being replaced gallon for gallon annually with no leeway for additional withdrawal. The water agency proposes to withdraw 84,000 acre-feet of groundwater per year.

The lands bill Clark County sent to Congress calls for the Interior Department to give the water authority rights-of-way for an electric power line that “shall be subject only to the terms, conditions and stipulations identified in the existing rights-of-way, and shall not be subject to further administrative or judicial review. The right-of-way shall be granted in perpetuity and shall not require the payment of rental fees.”

A right-of-way for a power line could easily accommodate pipelines, too.

The Great Basin Water Network (GBWN) — a coalition of conservationists, rural officials, tribes and agricultural interests which was one of the parties that successfully sued to block the water grab — is crying foul over the decision to try to skirt the law and the federal judge’s ruling with legislation.

“What that decision tells us is that SNWA and federal land managers cannot figure out how to mitigate a project that would –– when fully built –– destroy 305 springs, 112 miles of streams, 8,000 acres of wetlands, and 191,000 acres of shrubland habitat on public lands, according to the BLM,” GBWN and others write in a letter to Nevada’s congressional delegation. “In the path of this destruction is Nevada’s first national park, Great Basin, which hosts the state’s only glacier, supports magnificent stands of ancient bristlecone pines, and dazzles visitors with a majestic network of limestone caves.”

In a press release announcing its opposition to the bill draft, Kyle Roerink, GBWN’s executive director, stated, “SNWA is trying to re-write the laws to allow their destructive pipeline and remove barriers that were enacted to protect Nevadans and their public resources. Members of the delegation should not do SNWA’s dirty work by gutting bedrock environmental protections to pave the way for a project that will kill endangered species, mine groundwater, and siphon away Eastern Nevada’s future in return for sprawl.”

Roerink also noted the opponents have been fighting the water grab for 30 years.

If it goes forward, it is estimated the groundwater project will take 40 years to complete at a cost of $15 billion — a cost that would require the tripling of water rates in Clark County. According to an SNWA resource plan the water is not needed until 2035.

“Its gargantuan $15 billion price tag (in 2011 dollars) highlights SNWA’s blatant disregard for its own ratepayers –– many of whom live on low or fixed incomes,” Roerink argues. “Those costs could mean water bills skyrocketing in Las Vegas while wildlife, landscapes, businesses, local governments and tribes suffer in Eastern Nevada.”

In his 2017 ruling federal Judge Andrew Gordon noted the importance of the controversy to both sides of the issue, writing, “I am sensitive to the strong feelings and weighty interests at stake in this contest over Nevada’s water — after all, in the West, ‘whisky’s for drinkin’ and water’s for fightin’ over.’ There can be no question that drawing this much water from these desert aquifers will harm the ecosystem and impact cultural sites that are important to our citizens. On the other hand, southern Nevada faces an intractable water shortage.”

Our congressional delegation should allow Clark County to develop land within its boundaries, but should not grant this proposed end-run around the courts and the law to slake its thirst.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Advocate for West appointed acting head of BLM

BLM land in Nevada (BLM pix)

The self-styled cactus hugging collectivists are aghast.

This past week Interior Secretary David Bernhardt named William Perry Pendley of Wyoming acting head of the Bureau of Land Management, which controls 63 percent of the land in Nevada, the largest portion of the 87 percent of the state land controlled by various federal agencies.

Pendley, who worked in the Interior Department under President Reagan, has actually advocated selling off public lands instead of holding onto them in perpetuity.

A group calling itself the Western Values Project called Pendley dangerous and an extremist. Its executive director, Chris Saeger, was quoted as saying, “This appointment shows Trump and Bernhardt are only interested in selling off public lands to the highest bidder. Pendley is an outspoken advocate for the transfer of public lands to the state. Anything they’ve ever said about not selling off public lands has just been a political smokescreen to distract from their real intentions: handing over public lands to their special interest allies.”

William Perry Pendley

What Pendley has advocated is adhering to the intentions of the Founders, who fully intended for all lands owned by the federal government be sold. In an article in the National Review in 2016, Pendley argues that Article I of the Constitution “gives Congress unlimited power ‘to dispose of’ its property, but sharply limits its rulemaking authority to ‘needful Rules and Regulations.’ The Supreme Court correctly and narrowly interpreted the Property Clause in 1845, holding that the clause gave rise to a constitutional duty to dispose of its land holdings.”

Though opponents of selling off federal lands point to the Disclaimer Clauses that are found in verbiage covering admission of new states to the Union — in which the states “forever disclaim all right and title to the unappropriated public land lying within” the new state’s boundary — the new head of the BLM says the provision was included simply to assure the clear title of the United States so the land could be sold.

In fact, Nevada’s admission document contains a Disclaimer Clause, but also states that the land “shall be sold,” with 5 percent of proceeds going to the state. Thus, the original intention seems pretty clear. Obtain clear title. Sell the land. Divide the proceeds.

Editorial: Moving BLM HQ out West is a welcome change

The Interior Department this past week announced that it is moving the headquarters of its Bureau of Land Management (BLM) division out of Washington, D.C., and west to Grand Junction, Colo., as well as moving a number of senior management staffers into 11 Western states, including 50 to Nevada, according to The Associated Press.

While the agency estimates the move could save as much $100 million over the next 20 years due to lower office space costs and lower cost-of-living differentials for federal employees, a more important and significant aspect may be putting the bureaucrats who manage 388,000 square miles of federal public land in 12 Western states closer to the people who are affected by their decisions. Human nature dictates it is harder to look across your desk at a neighbor and say no to a profitable endeavor than it is from 2,000 miles away.

That’s essentially what Secretary of Interior David Bernhardt intimated in a press release announcing the decision, “A meaningful realignment of our operations is not simply about where functions are performed; rather, it is rooted in how changes will better respond to the needs of the American people. Under our proposal, every Western state will gain additional staff resources. This approach will play an invaluable role in serving the American people more efficiently while also advancing the Bureau of Land Management’s multiple-use mission. Shifting critical leadership positions and supporting staff to western states — where an overwhelming majority of federal lands are located — is not only a better management system, it is beneficial to the interest of the American public in these communities, cities, counties, and states.”

In a letter to Congress, Joseph Balash, an assistant secretary of the Interior, said about 300 jobs are to be moved West in the coming year and about 60 positions will remain in Washington to handle budget and policy issues and work with Congress. The BLM already has about 10,000 jobs in the West.

Grand Junction would get less than 30 of the 85 new jobs slated for Colorado, with most of the rest residing in suburban Denver, where the federal government already has a number of regional offices. In addition to Nevada’s 50 new jobs, Utah is to add 45 and Arizona and New Mexico about 40 each. 

Of course some Democrats in Congress oppose the move, which started under former Interior Secretary Ryan Zinke, because it lessens their sway.

Democratic Rep. Raúl Grijalva of Arizona, chairman of the House Natural Resources Committee, said in a statement posted on his congressional website, “This administration has been handing over public lands to fossil fuel companies at record speed, and this move is part of that agenda. Putting BLM headquarters down the road from Secretary Bernhardt’s home town just makes it easier for special interests to walk in the door demanding favors without congressional oversight or accountability. The BLM officials based in Washington are here to work directly with Congress and their federal colleagues, and that function is going to take a permanent hit if this move goes forward. The agency will lose a lot of good people because of this move, and I suspect that’s the administration’s real goal here.”

Bernhardt is from Rifle, Colo., about 60 miles east of Grand Junction.

The AP quoted Kathleen Sgamma, president of the oil industry trade group Western Energy Alliance, who had a different take on the question of influence. “The whole focus will be on the West, where it should be,” Sgamma said. “Right now, it’s easy to sit in D.C. and deny a rancher a grazing permit. It’s not so easy when he’s sitting across the table from you.”

In a similar vein, the AP quoted Mike Noel, a rancher and former Utah state lawmaker, as saying, “Having the BLM out here and closer to the ground, we’re going to get better decisions. There’s a different philosophy out here than there is in Washington, D.C.”

As we said, it is harder to say no to your neighbor, and that is a good thing. The move is a welcomed effort to better serve those most impacted by BLM decisions. 

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Photo courtesy Visit Grand Junction, shows Rattlesnake Canyon, one of many BLM-administered natural wonders in Colorado’s Grand Valley.

Editorial: BLM proposes firebreaks to reduce size of wildfires

The Bureau of Land Management is currently conducting a series of public hearings across the West to get input on an audacious proposal to limit the unchecked spread of rangeland wildfires.

The BLM says wildfires have increased dramatically in size and frequency in the past decade in six Western states — Nevada, Utah, California, Idaho, Oregon and Washington. During that time, 21 fires have exceed 100,000 acres. A total of 13.5 million acres have burned. Efforts to suppress wildfires by the BLM alone have cost $373 million over the past decade

“These wildfires result in increased destruction of private property, degradation and loss of rangelands, loss of recreational opportunities, and habitat loss for a variety of species, including the conversion of native habitats to invasive annual grasses,” the BLM reports. “The conversion of rangeland habitats to invasive annual grasslands further impedes rangeland health and productivity by slowing or preventing recovery of sagebrush communities.”

To counter this, the federal land agency is proposing to create up to 11,000 miles of firebreaks as a way to keep the fires from spreading into mammoth infernos, like the Martin Fire in northern Nevada this past year, which consumed nearly half a million acres of rangeland.

The draft proposal calls for fuel breaks being created along roads and rights-of-way by mowing, grazing, mechanical and chemical clearing, as well as prescribed burns. Some of the breaks could be brown strips — areas where all vegetation has been removed. Others could be green strips — areas where vegetation that is more flammable has been replaced with less flammable vegetation.

In some areas invasive cheatgrass — a perennial that grows knee high in the spring but dries out in the summer — would be replaced with native plants less susceptible to fire. Also, grazing permits could be adjusted to allow for spring time clearing of cheatgrass.

Cheatgrass and wildfires create a vicious cycle. Cheatgrass recovers more quickly than native species after a fire. Thus the more fires, the more cheatgrass. The more cheatgrass, the more fires.

John Ruhs, once the head of the BLM in Nevada and now the head of BLM operations in Idaho, was quoted in an agency press release as saying, “Fuel breaks have proven to be very effective in slowing rangeland wildfires, making them easier and safer for wildland firefighters to control. We believe that creating a system of fuel breaks will help us enhance and improve our working landscapes.”

The BLM’s principal deputy assistant secretary for land and minerals management, Casey Hammond, was quoted as saying, “Wildfires devastate forests, rangeland and communities across Idaho and throughout the West, and without strategic planning they’re likely to continue in the years ahead. With this initiative and others like it, we’re working proactively to curb wildfires’ destruction and make it safer and more effective for firefighters to protect people and property.”

Environmentalists have expressed concerns that firebreaks may fragment wildlife habitats, including that of the threatened greater sage grouse, but the fragmentation should be less threatening than a wall of flames threatening the animals’ very lives and food source.

Brian Rutledge, a vice president of the National Audubon Society, notes, “The safety of a sage-grouse is utterly dependent on its cryptic coloring and cover from overhead predators. If the birds didn’t get burned up in the fire, there’s nowhere to hide eggs in cheatgrass.” Additionally, unlike soft sage leaves, cheatgrass provides little nutrition for the species.

The BLM is accepting comments on the proposal through Aug. 5.

Scoping meetings are scheduled for 5 to 7 p.m. on July 16 at the Red Lion Inn in Elko and July 17 at the Bristlecone Convention Center in Ely.

Firebreaks would be a valuable tool in the effort to cut down the size of rangeland wildfires.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

BLM proposes firebreaks along 11,000 miles of roads and rights-of-way.

Editorial: BLM cooperating with states on grouse protection

A greater sage grouse male struts for a female. (Pix by Jeannie Stafford for U.S. Fish and Wildlife Service)

This past Friday the Bureau of Land Management released its Record of Decisions on how to protect greater sage grouse across a number of Western states, including Nevada.

The BLM backed off Obama administration plans that would have hampered mining, ranching and oil and gas exploration, saying its goal now is to align BLM plans for managing sage grouse habitat with plans developed by each state.

The areas affected in Nevada include Battle Mountain, Carson City, Elko, Ely and Winnemucca.

“The State of Nevada thanks the Bureau of Land Management for incorporating our concerns and respecting the Greater Sage-Grouse habitat plan developed cooperatively by Nevada state agencies and local stakeholders,” said Nevada Gov. Steve Sisolak in a statement conveyed by the BLM. “In particular, Nevada appreciates the BLM’s commitment to compensatory mitigation as an integral part of the success of Nevada’s habitat management plan. We look forward to working closely with the BLM Nevada Office and the Department of Interior leadership to ensure the revised habitat plans are fully successful.”

Compensatory mitigation would allow developers to pay for methods that reduce impact on sage grouse habitat rather than simply being barred from using the land.

In December, then-Gov. Brian Sandoval, according to The Nevada Independent, issued an executive order telling the state’s Sagebrush Ecosystem Council to require energy and mining companies to offset the impacts of their activities on sage grouse habitat by using a conservation credit system.

The BLM had decided it did not have the authority to make such credit systems mandatory, but the new order supports each state’s plan and authority for compensated mitigation.

Acting Secretary of the Interior David Bernhardt said in a statement, “The plan amendments adopted today show that listening to and working with our neighbors at the state and local levels of government is the key to long-term conservation and to ensuring the viability of local communities across the West.”

Brian Steed, BLM deputy director for Policy and Programs, was quoted as saying,  “Since the very beginning of this effort, all partners have maintained the need to conserve the sage grouse and avoid the need to list the species as threatened or endangered. We also share a commitment to conservation that does not put the West’s communities at risk and which balances between regulation and access. We believe that the better outcomes for the species under these plans will demonstrate the value of coordinating federal and state authority.”

The BLM will monitor grouse populations and maintain “trigger” points that will require action of some sort. The land agency stated that in Nevada the state’s planned responses to triggering will follow the state’s strategy rather than automatically applying pre-determined response measures.

Of course, environmental groups forecast doom and gloom.

“This could drive the greater sage grouse to extinction and forever damage the American West,” said Randi Spivak, public lands director at the Center for Biological Diversity, in a press release. “Trump and former oil lobbyist David Bernhardt are blatantly rigging the system to benefit oil and gas operators. This will spell disaster for the vanishing sage grouse and for hundreds of species that depend on unspoiled public land.”

Lest we forget, early explorers of Nevada in the 1820s and 1830s never mentioned seeing sage grouse — not Jedediah Smith, not John Work, not Zenas Leonard. Nor did Joe Meek, John Bidwell, John Fremont, Charles Preuss, Heinrich Lienhard and James Clyman.

Nor did the first wagon trains in the 1840s. Not until settlers brought in horses, cattle, oxen and sheep, which fertilized the soil and ground the vegetation into the ground, while also improving water sources, did the sage grouse population grow into the millions.

Human activity actually caused the birds to thrive. Fires and lack of predator control have caused the grouse population to dwindle somewhat.

Common sense and cooperation between the federal land agencies and the experts in each state can keep the grouse from returning to a more “natural” population level prior to the arrival of settlers.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Bundys may have to face trial after all

Cliven Bundy walks out of federal court with his wife Carol on Monday, Jan. 8, 2018, in Las Vegas, after a judge dismissed criminal charges against him and his sons accused of leading an armed uprising against federal authorities in 2014. (R-J pix by K.M Cannon

This past week prosecutors appealed to the 9th U.S. Circuit Court of Appeals the decision by a Nevada federal judge to dismiss with prejudice all charges against Bunkerville rancher Cliven Bundy, two of his sons and a self-style militiaman from Montana because the government failed to disclose potentially exculpatory evidence to the defense. 

Knowing the track record of the liberal 9th Circuit, odds are the court will order the defendants back to face charges.

The Bundy family has grazed cattle on public land in Clark County since the 1880s, but 25 years ago the Bureau of Land Management told the family it could no longer graze cattle in the spring because they might harm the hatchlings of the threatened desert tortoise — a contention range biologists say is bogus. Since those months are the only ones in which cattle gain weight on the desert range, Bundy refused to comply and stopped paying the BLM its grazing fees. 

In April 2014, saying Bundy owed more than $1 million in grazing fees and trespass fines, contract cowboys backed by heavily armed BLM and FBI agents started rounding up the Bundy cattle. In response, armed men from across the West gathered for a face-off with the federal agents.

To avert a potential bloodbath the agents backed down and left, but Bundy and others were later indicted on charges that included obstruction of justice, conspiracy, extortion, assault and impeding federal officers.

Two of three scheduled trials took place, but a year ago during the third trial of Cliven Bundy and his co-defendants Judge Gloria Navarro abruptly halted proceedings and ruled that the prosecutors had willfully and flagrantly failed to disclose evidence that could have been used by the defense, including information about an FBI surveillance camera, documents citing the presence of snipers, certain maps, FBI logs, threat assessments that showed the Bundys weren’t violent, documents reportedly showing that no threatened desert tortoises were ever found to be harmed by Bundy’s cattle, and internal affairs documents detailing possible misdeeds by the Bureau of Land Management agent in charge, who was later fired.

The judge ruled the dismissal was with prejudice, meaning charges could not be brought against them again. 

Curiously, most of that information cited would have allowed the defense to argue the defendants were provoked and were acting in self-defense, arguments the judge previously ruled were impermissible. The appeal goes into excruciating detail about this seeming contradiction.

In response to the appeal, Bundy’s lawyer Larry Klayman asked the appellate court to dismiss the prosecution’s appeal because it had missed the filing deadline. Though the prosecution asked for deadlines extensions, the court has not yet granted such an extension.

According to press accounts, Klayman also called the appeal “unprofessional and grossly unethical,” adding, “They are apparently hopeful that this court, if an appeal is heard, will relieve them from the prospect that their careers at the Department of Justice are over, much more the potential for disbarment. Given the record, this ‘Hail Mary’ attempt to skate from their own liability is destined to fail.”

But the appeal, penned by Nevada Assistant U.S. Attorney Elizabeth White, argues,  “Any missteps were inadvertent (or at worst negligent), and those errors did not merit the court’s strong condemnation of the prosecution team.”

White also argued that court precedents show the appropriate remedy for failing to disclose would be either the dismissal of some charges or a new trial, not outright dismissal. 

In arguing that disclosure of evidence might jeopardize the safety of witnesses and agents, the appeal dredged up a long-discredited base canard. 

The brief stated, “Its goal was to produce all relevant information while protecting victims, witnesses, and law enforcement officers from harassment and threats, and from the violence that had already taken the lives of two police officers and a civilian at the hands of two of Bundy’s extremist followers.”

This refers to the fact that in June 2014, Jerad and Amanda Miller, killed two Las Vegas police officers and another man before being killed in a shootout with police.

What was not mentioned is that the Millers were a couple of leftist lunatics who showed up at the Bundy ranch standoff but were told by the Bundys to leave because of their “very radical” views. They were not Bundy’s “extremist followers.”

Despite this error, the appellate court is likely to look favorably on the prosecution’s appeal. 

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Adoption incentives could curb wild horse population

Why not?

Unless some self-appointed “wild horse lovers” step in and manage to quash the idea, the Bureau of Land Management is seriously considering still another method for reducing the wild horse and burro population on the open range and in pens.

The idea was floated in a report to Congress this past April. Instead of charging people $125 a head to adopt a wild horse or burro, pay people $1,000 a head to adopt and care for the feral animals instead of letting them starve on overgrazed range or languish in pens.

The report predicted, “If the incentive proves to increase adoptions beyond the planned 5,000, the BLM could decrease the use of permanent sterilization and increase removals to match adoption/sale totals. While this incentive would increase costs in the initial years, it will quickly pay for itself by lowering off-range holding expenditures,” adding that the program could reduce the 83,000 horses and burros on the open range to the goal of 27,000 by 2030.

The idea was endorsed in the latest issue of PERC Reports — a magazine published by the Property and Environment Research Center, a nonprofit institute dedicated to improving environmental quality through markets and property rights.

Writers Hannah Downey, the policy and partnerships coordinator and a research fellow at PERC, and Tate Watkins, a research and publications fellow at PERC and managing editor of PREC Reports, reported that under the current plan the BLM would pay adopters a $500 first installment 60 days after adoption. Once new owners demonstrate they are providing quality care after a 12-month probationary period the new owners would get another $500 payment.

“The plan has the potential to help improve the lives of wild horses while also benefiting taxpayers,” the PERC Reports article states. “Owning and caring for a horse is not cheap. The $1,000 payment should promote adoptions as the stipend can help cover veterinary and training costs. This sort of approach has been widely used by animal shelters that offer free adoptions or waivers for veterinary care to help get pets placed in loving homes, and it has potential to make a real difference in the lives of wild horses and burros.”

Why not treat wild horses and burros in a manner comparable to dogs and cats?

“Adoption is clearly a better outcome for a wild horse than starving on the range or living out the rest of its days in an overcrowded corral,” Downey and Watkins argue. “For taxpayers, the per-horse savings is undeniable. Spending $1,000 to find a mustang a good home is orders of magnitude cheaper — and likely much more humane — than caring for it in a government holding facility for the rest of its life.”

The BLM now spends more than $50 million a year to warehouse wild horses and burros, about 60 percent of its budget for protecting the beasts.

It’s worth a try.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Wild horses being warehoused at Palomino Valley near Reno. (Photo by Jo Mitchell)