Newspaper column: This big piggy goes oink, oink, oink

The libertarian-leaning Nevada Policy Research Institute has published this year’s edition of its popular “The Nevada Piggy Book” — a collection of anecdotes illustrating the tendencies of state and local governments to lavishly overspend our money on inefficient and even counterproductive endeavors.

The introduction reaches the dismal conclusion that waste is endemic to government. While you and I watch our spending closely, not so with bureaucracies. “In fact, when agencies blow through their budgets, odds actually increase that politicians, in years to follow, will award them ever larger sums of tax dollars!” NPRI relates.

Take for example the decision by the Nevada Department of Transportation to award a bid of $529,000 to construct federally-approved fencing along a 37-mile stretch of U.S. 95 north of Las Vegas to keep endangered Mojave Desert Tortoises from crossing the highway and too frequently meeting their demise beneath the wheels of speeding vehicles.

But when the project was completed the U.S. Fish and Wildlife Service determined the fencing failed to meet federal standards — which called for the tortoise fencing to be at least two feet above the ground and one foot below. Some sections of the fence were no more than 8 inches above the ground and as little as 4 inches deep.

The 28-page Piggy Book reported, “Nevada taxpayers alone were forced to cover the $736,000 required to remove the existing, inadequate fencing and replace it with new fencing in line with federal regulations.”

But that’s just the beginning of this tale of waste and woe. NPRI relates that a 2017 study by researchers at the University of California, Davis said that “tortoises that haven’t adjusted to the fencing pace along them, and sometimes overheat and die.” So much for saving tortoises from becoming roadkill.

Fencing wasn’t the only problem.

It turns out, according to the Piggy Book, that a series of culverts under the highway — intended to be tortoise passages and costing $320,000 — had faulty drainage that resulted in, you guessed it, more tortoise deaths.

“Like the tortoise fencing, these culverts will also need to be reengineered and replaced,” NPRI recounts. “As of this writing, it is unclear how much all these repairs will cost, but it seems likely that state — not federal — taxpayers will be responsible for paying the bill.”

Then there is the issue of the state shelling out overtime to unionized prison correctional officers. It turns out overtime is not calculated the same way in government as in the private sector where one must work more than 40 hours to earn overtime pay.

For some government workers overtime is calculated using time “paid” instead of time worked. Paid leave — such as vacation or sick days — count toward overtime eligibility. “In other words, even if an employee took vacation time for Monday, Tuesday and Wednesday, they would still be eligible to receive overtime if they ended up working Thursday, Friday and Saturday,” NPRI explains.

For example, corrections officer Jimmy Jones received $117,551 in overtime pay on top of his $56,720 salary in one year, while corrections officer Stewart Boyer was paid $74,560 in overtime on top of his $33,496 base salary.

“In total, 19 state correctional officers received OT pay that exceeded their base salary, while 135 received OT pay that was at least 50 percent of their regular salary,” NPRI’s analysis found.

That’s just two examples.

“The examples in this book might be merely the tip of a government-spending iceberg in Nevada — but they are powerful reminders of how important it is for the public to see what, exactly, government is doing with all those never-ending tax increases,” the Piggy Book concludes. “Many of the very same government agencies that are routinely found to be wasting tax dollars also go to great lengths to keep the public in the dark when it comes to spending.”

NPRI describes itself as a non-partisan, free-market think tank that promotes public-policy ideas consistent with the principles of free enterprise, individual liberty and limited, accountable and constitutional government. If only the people we elect to represent us in Carson City and our local governing bodies would pay attention, we might have a little less waste and get to keep more of our money.

The Nevada Piggy Book can be found online at: https://www.npri.org.

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: Trump administration settles suit over habitat rules

The Trump administration has settled a lawsuit filed by Nevada and 19 other states over Obama administration rules that sweepingly redefined what constituted critical habitat for endangered species and has agreed to rewrite those rules.

The suit, filed in November 2016 against various federal land agencies, accused the federal bureaucrats of essentially rewriting the Endangered Species Act of 1973 (ESA) to give themselves potential veto power over any use whatsoever on every square foot of rural land, public or private, in the country.

Though the ESA gives the U.S. Fish and Wildlife Service authority to protect “critical habitat” occupied by endangered or threatened species, the rewritten rules redefined “critical habitat” to include land currently unoccupied by those species but just might someday, in someway, somehow — as a result of global warming or a meteor strike, perhaps — later become “critical habitat.”

Those rules gave federal agents the power to block or alter any activity — grazing, farming, buildings, mining, recreation, roads, fences, pipelines, ditches, power lines, irrigation, oil and gas exploration — that might somehow adversely affect a potential habitat for certain protected rodents, minnows, bugs, birds, reptiles, beasts and weeds.

The settlement, reached this past week, requires the federal land agencies to submit revised rules for public review within 60 days. The states reserve the right to file another lawsuit if the new rules are unsatisfactory.

“I commend the federal government for agreeing to reconsider rules created in the previous administration that could have severely restricted property owners’ use of their own land,” said Nevada Attorney General Adam Laxalt, who joined the suit, which was filed in Alabama. “If this federal land grab had been implemented, the federal government could have expanded critical habitat designations to include entire states. I am proud of the result of our joint efforts to protect Nevada land from burdensome and unconstitutional federal overreach.” (Critical habitat)

That overreach flew in the face of the ESA’s requirement that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species,” except in a circumstance determined by the secretary of the Interior.

Opponents of the rules said they impermissibly relied on hope and base speculation.

The lawsuit also said the rules create huge costs for private landowners and small businesses who must go to the expense of obtaining federal permits in order to make even minor modifications to their own property. Permits could be denied under rules that were obviously arbitrary, capricious and onerous.

Arkansas Attorney General Leslie Rutledge commented on the settlement and said, “Our wildlife must be protected for future generations, but it is completely unreasonable to give the federal government broad authority to restrict land usage just because bureaucrats in D.C. think an animal might, possibly, one day inhabit that land — even if that land does not have features necessary for its survival. These rules are a clear example of an Obama-era overreach that must be changed to protect the rights of land owners and the States.”

Alabama Attorney General Steve Marshall noted Congress had purposefully set a stricter standard for land not occupied by endangered species, saying the Obama administration rules violated the intent of Congress and defied common sense.

“These rules even allowed the federal government to prevent activities it decided could adversely affect habitat features that do not actually exist,” Marshall said. “For example, as the States noted in their complaint, the federal government ‘could declare desert as critical habitat for fish and then prevent the construction of a highway through desert lands, under the theory that it would prevent the future formation of a stream that might one day support the species.’”

Of course, the self-styled environmentalists don’t want any changes. An attorney for the Center for Biological Diversity told E&E News in an email, “We’ll be taking a close look at the revised rules and are likely to challenge them if we identify any departure from the Endangered Species Act’s requirement that the agencies protect habitats essential for species recovery.”

In addition to Nevada, other states participating in this settlement include: Alabama, Alaska, Arkansas, Arizona, Colorado, Idaho, Kansas, Louisiana, Michigan, Missouri, Montana, Nebraska, New Mexico, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.

Over the 45 years since the passage of the Endangered Species Act the return on investment has been practically nil. Only 1 percent of listed species have ever recovered sufficiently to be delisted, despite the law’s huge impact on economic endeavors. Hopefully, the rewritten rules will lessen the impact.

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: Constitution stretched to the breaking point

A Utah prairie dog peeks out of an artificial burrow after arriving at a remote site in the desert, some 25 miles away from Cedar City, Utah. (AP pix via WSJ)

If words can mean anything anyone says they mean, then words are meaningless. That is what the 10th U.S. Circuit Court of Appeals has done with the Commerce Clause of the Constitution.

The appellate court overturned a federal judge who found that the Commerce Clause does not give Congress the power under the Endangered Species Act (ESA) to regulate a species that exists only within the boundaries of one state and has no commercial value whatsoever — specifically the Utah prairie dog.

Nevada has joined with Utah and 21 other states to ask the U.S. Supreme Court to strike the circuit court ruling, saying that if the ruling stands “then Congress has virtually limitless authority, and the Tenth Amendment is a dead letter,” as well as the concept of federalism. (prairiedogamicusbrief)

If Nevada is to have any control over any economic activity within its borders, which include numerous endangered and threatened species, it is vital that the high court reverse this Constitution-rendering exercise in legerdemain.

The circuit court judges stretched the meaning of the Commerce Clause — which gives Congress the power to regulate interstate commerce in order to promote commerce by preventing interstate tariffs — to include anything Congress could imagine in its wildest flights of fantasy.

“We conclude that Congress had a rational basis to believe that regulation of the take of the Utah prairie dog on nonfederal land is an essential part of the ESA’s broader regulatory scheme which, in the aggregate, substantially affects interstate commerce,” the circuit court ruled, without any hint as whether that conclusion was at all rational rather than delusional sophistry.

The judges dived further into base speculation by stating, “‘ESA’s drafters were concerned by the “incalculable” value of the genetic heritage that might be lost absent regulation,’ as well as observing that the majority of takes of species ‘result from economic activity …’” Might that incalculable value be zero? Species became extinct before mankind arrived on the scene.

The amicus brief filed by the attorneys general of 23 states paraphrased the 10th Amendment in the Bill of Rights by stating, “The Framers correctly concluded that both restraints – separation of powers and federalism – are necessary to preserve individual liberty and avoid tyranny. So powers not given to the federal government are reserved for the States and the people. But federalism serves its purposes only if the federal-state interplay remains properly balanced. That means courts must ensure that the federal government operates only within its enumerated powers so the States can function within their proper spheres.”

Adding insult to constitutional injury is the fact the state of Utah was actually doing a better job of protecting the prairie dog population than the U.S. Fish and Wildlife Service.

The Fish and Wildlife rules made it a federal crime to “take” the Utah prairie dog — which means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect — without first obtaining time-consuming and expensive federal permits. Meanwhile, the burrowing prairie dogs were damaging parks, sports fields, airports and cemeteries and preventing the construction of homes and businesses. Especially hard hit is the small college town Cedar City.

During the time after the federal judge blocked the Fish and Wildlife rules the state of Utah spent a considerable amount of money to move the prairie dogs from population centers to remote and safer conservation areas, allowing the population to boom from a low of 24,000 in 1984 to an estimated 80,000 today.

The original lawsuit was brought by 200 private property owners calling themselves People for the Ethical Treatment of Property Owners. They were represented by the Pacific Legal Foundation (PLF), which litigates on behalf of personal liberty and property rights.

“For decades, the federal government’s harmful Utah prairie dog regulation has prohibited residents of Cedar City from doing things that most of us take for granted in our own communities,” PLF attorney Jonathan Wood is quoted as saying in a press release. “They have been blocked from building homes, starting small businesses, even protecting playgrounds, an airport, and the local cemetery from the disruptive, tunneling rodent.

“The Commerce Clause has long been a source of federal mischief, but the Supreme Court has never allowed it to be stretched this far,” Wood noted. “With their prairie dog regulation, federal bureaucrats have asserted control over local activities that are not interstate commerce, do not affect interstate commerce, and are not necessary to any federal regulation of interstate commerce.”

If the words of the Constitution are so malleable, it has no meaning and Congress is our dictator.

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.

Pruitt ends another costly Obama era EPA practice

It’s about damned time.

EPA administration Scott Pruitt said today his agency is ending the practice that has come to be known as “sue and settle” — in which self-styled environmental sue the government over some feigned failure to protect something or stop some viable economic activity and the government caves without putting up a fight.

“We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress,” Pruitt said in a statement.

Scott Pruitt, head of EPA

As the attorney general of Oklahoma, Pruitt was involved in many such lawsuits.

Pruitt said that when a settlement is being considered the EPA will discuss the matter with affected states and communities.

 

Back in 2014 we lamented the “sue and settle” practices of the Obama administration.

The previous fall, the the U.S. Fish and Wildlife Service designated as threatened — under the terms of the Endangered Species Act — the bi-state greater sage grouse found along the northern California-Nevada border, supposedly a distinct population segment of about 5,000 remaining birds, even though the birds are legally hunted in both states.

That decision followed an October 2010 lawsuit filed by the Western Watersheds Project challenging grazing permits granted by the Bureau of Land Management.

In the spring of 2014 the FWS designated as threatened the lesser prairie chicken, which are found in Texas, Oklahoma, Colorado and New Mexico and Kansas.

Wild Earth Guardians sued the FWS in 2010 demanding rapid action on the listing status of 251 species. FWS caved.

A Mono Basin bi-state sage grouse

Under the settlement, FWS was also to decide whether to list the greater sage grouse, which are found in 11 Western states, by September 2015. What do you think the odds are? Fortunately, that never happened, though the Obama administration issued a massive and draconian set of land use plans meant to protect the chicken-sized birds. Recently, Pruitt’s EPA rescinded those plans

Many of the causes of Western species decline have nothing to due with farming, ranching, oil and gas exploration or recreation, but with incompetent land management by the federal agencies, which have ignored fuel management practices and allowed vast wildfires to ravage the ranges. Additionally, there a lack of predator control, one of the biggest problems for most of the species in question, but a factor ignored by the feds.

 

During the four decades of the Endangered Species Act less than 2 percent of listed species have been delisted. Once on the list they are on the list forever.

Pruitt appears to be correcting many of the errors of his predecessor.

 

 

Newspaper column: Nevada joins challenge of Endangered Species Act rule changes

This could be declared critical habitat for some endangered species of fish because someday a stream might run through it. (U.S. Fish and Wildlife Service photo)

Nevada has joined an 18-state coalition that has filed suit against various federal land agencies for essentially rewriting the Endangered Species Act of 1973 (ESA) to in effect give themselves potential veto power over any use whatsoever on every square foot of rural land in the country.

Though the ESA gives the U.S. Fish and Wildlife Service authority to protect “critical habitat” occupied by endangered or threatened species on public and private land, the new rules sweepingly redefine “critical habitat” to include land currently unoccupied by those species and even to include land that just might someday, in someway, somehow later become “critical habitat.”

The new rules give federal agents the power to block or alter any activity — grazing, farming, buildings, mining, recreation, roads, fences, pipelines, ditches, power lines, irrigation, oil and gas exploration — that might somehow adversely affect a potential habitat for certain protected rodents, minnows, bugs, birds, reptiles and beasts.

In a press release announcing the litigation, Nevada Attorney General Adam Laxalt noted that the rule change could allow the federal government to declare “desert land as critical habitat for a protected fish and then prevent the construction of a highway through the land, under the theory that it would prevent the future formation of a stream that might one day support the fish.” The passage is almost verbatim from the lawsuit.

The suit was filed this past week in federal court in Alabama. It names as defendants the U.S. Secretary of the Interior, the National Marine Fisheries Service, the U.S. Secretary of Commerce and the U.S. Fish and Wildlife Service.

“As we have seen countless times, this administration’s novel rules reach well beyond anything Congress could have ever intended and will have adverse effects on individual states, businesses and families,” said Laxalt in the press release. “In practice, these latest rules expand federal oversight to the point that the federal government could potentially designate an entire state or even multiple states as critical habitat for certain species. I will continue to protect our state from this type of unwarranted and burdensome federal overreach.”

The sweeping definition of habitat appears to fly in the face of the law’s requirement that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species,” except in circumstance determined by the secretary of the Interior.

Alabama’s Attorney General Luther Strange said in a press release, “Washington bureaucrats have gone beyond common sense by seeking to expand their control to private property adjoining the habitat of an endangered species solely on the basis that these areas might one day be home to a threatened species.”

The suit declares the new rules are “an unlawful attempt to expand regulatory authority and control over State lands and waters and should be vacated and enjoined because they violate the ESA and the Administrative Procedure Act. (APA)”

The suit goes on to say that the ESA as written by Congress respects the rights of states to manage and control land inside their boundaries, but, “The Final Rules issued by the Services trample upon the sovereign rights of the States as landowners and stewards of their natural resources. They directly implicate state management decisions related to wildlife regulation, forest management, water management, state owned or supported projects, and other areas of traditional State control.”

The suit also takes issue with the aforementioned fact that the new rules “declare that essential features include not only the physical or biological aspects that actually support the species, but also items that might lead to the development of those species-supporting features sometime in the future.”

Arguments against the rules posted in the Federal Register earlier this year note that this “constitutes an impermissible reliance upon hope and speculation.” As well as a crystal ball or reading of tea leaves.

The lawsuit also notes the rules create huge costs for private landowners and small business who must go to the expense of obtaining federal permits in order to make even minor modifications to their own property. Permits can be denied under rules that are arbitrary, capricious and onerous.

In addition to Nevada and Alabama, other suing states are Alaska, Arkansas, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.

To place the effectiveness of the Endangered Species Act in perspective: Only 1 percent of listed species have ever recovered sufficiently to be delisted, despite the law’s immense impact on economic endeavors. Not much return on investment.

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: State agency orders feds to return stream to church retreat property

Erosion on church retreat property.

Over a tiny tract of land — nestled in the middle of the Ash Meadows National Wildlife Refuge northwest of Pahrump that a church uses for a retreat — a state agency has pierced the dark bureaucratic clouds with a ray of sunshine.

In 2010 the U.S. Fish and Wildlife Service rerouted a stream that had run through the Ministero Roca Solida (Solid Rock) church’s 40-acre parcel of private land since at least the 1880s. The church purchased the land in 2006 and used the stream for traditional baptisms. The federal agency claimed it needed to reroute the stream so it could reintroduce speckled dace, an endangered minnow.

The rerouted spring-fed stream promptly overflowed its poorly engineered banks during a rain storm in 2010, presumably washing away the dace as well. Flooding occurred again in 2015 and twice this year, extensively damaging buildings and creating massive gullies.

But in an order dated Nov. 4 the state Division of Water Resources, arbiter of water rights in Nevada, demanded that Fish and Wildlife within 90 days return the stream to its original banks transversing the church retreat property or face a fine of $10,000 per day.

The state water agency concluded that the contention by Fish and Wildlife that it was reestablishing a historic natural drainage course is clearly wrong and the Carson Slough historically traversed the church land and the church has vested rights to the water, as well as the evidence to prove it, dating as far back as 1887.

The Solid Rock church, pastored by Victor Fuentes, a Cuban immigrant, has been fighting the federal land agency in court for several years with the aid of Nevada Policy Research Institute’s legal arm, the Center for Justice and Constitutional Litigation. The court case is currently pending in the U.S. Court of Federal Claims.

“Getting the water returned would be a major first step in making the Ministry whole, after years of suffering litigation and egregious constitutional violations by the U.S. Fish and Wildlife Service,” said Joe Becker, director of NPRI’s legal unit. “However, the Ministry still suffered significant harm in the interim from the federal government’s actions — including repeated flooding and five years of flood damage resulting from the illegal water diversion project.”

The first flooding caused $86,000 in damages, but subsequent floods have created so much damage the church is seeking $3 million or complete restoration of the property to its original status. Becker said, “A mini-grand-canyon now cuts through what was once lush wetlands, and the significant improvements made to structures and the land for the benefit of young campers are being undone with each recurring flood.”

The state’s action is a step in the right direction toward restoring the church’s property and water rights, but the federal government needs to repair or pay for the damage it has caused.

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.

Editorial: Federal stream diversion has washed out church property

Patch of Heaven erosion

The little Patch of Heaven keeps getting washed away a little bit at a time.

Since 2010 the Ministero Roca Solida (Solid Rock) church, which owns a 40-acre parcel of private land nestled in the middle of the Ash Meadows National Wildlife Refuge northwest of Pahrump that it calls Patch of Heaven, has been fighting to protect its property and water rights from the federal government.

After the U.S. Fish and Wildlife Service rerouted a stream that had run through the church property since at least the 1880s, putatively in an effort to reintroduce speckled dace, an endangered minnow, the rerouted stream overflowed its poorly engineered banks in 2010, again in 2015 and now twice this year extensively damaging the private land.

The first flooding cause $86,000 but the subsequent floods have created so much damage the church’s attorney is asking the federal court to award the church the entire value of the now practically unusable property and the value of five years of water rights for which the church as been deprived — $3 million or completely restore the property to its pre-diversion-project status.

The church claims the stream diversion was in violation of both federal and state laws.

Church minister Victor Fuentes and his wife purchased the land and its buildings in 2006 for $500,000 using church donations with the intent of using the property as a church retreat and to use the stream that ran through it for baptisms, recreation and for livestock. The church has since upgraded the buildings.

The church is being represented by the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation, which is operated by attorney Joseph Becker.

Becker wrote in the latest lawsuit, filed this past month, that the Fish and Wildlife stream diversion moved the stream completely off of the church property and onto higher ground, which has resulted in modest rainfalls causing the stream to flood back into its original channel but in such a way that the water has eroded the land, “leaving a mini-Grand-Canyonlike landscape in the flood’s wake.” (Fuentes final complaint)

He added, “With each subsequent rainfall, the new rainfall creates new pathways for rushing water to re-enter Plaintiff’s land. The result is that less and less rainfall now results in more and more flooding and flood damage.”

The case has dragged on so long that there is a danger of running past the statute of limitations for a takings claim under the Fifth Amendment, which prohibits taking of private property without just compensation.

In addition to the erosion and other damages, the suit notes that the federal land agency has been frequently closing access roads to the church’s property, purportedly due to the flooding caused by the government, and is failing to maintain access roads as required by an agreement with Nye County, making it difficult to even access the property.

Further, Becker writes, “Campers are typically dropped off in buses, which then depart the premises and return at the conclusion of camp, thus leaving would-be campers stranded and in danger of harm on the grounds in the event of precipitation and flooding.”

The courts need to step up and force the federal land agencies to treat private property and water rights with the respect guaranteed in the U.S. Constitution.

Patch of Heaven flooding

A version of this editorial appears this past 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.

Owners of church await justice

Church tries to get Supreme Court to hear case

Feds can take property rights

NPRI fights federal power

 

Federal agencies never let the facts get in the way of their paperwork juggernaut

The U.S. Fish and Wildlife Service has a deadline of Sept. 30 to decide whether to list greater sage grouse under the Endangered Species Act and put into effect conservation measures developed by the agency and the Bureau of Land Management. There is almost no chance Fish and Wildlife will not decide for listing, despite what the science and statistics say.

When it does so, about 10 million acres of land in 11 states — nearly 3 million in Nevada alone — will be off limits to economic development. Countless potential jobs will be lost to save a bird that does not need saving.

Sage grouse

According to analysis by the Western Association of Fish and Wildlife Agencies, the number of male sage grouse across the bird’s range has increased 63 percent from 2013 to 2015, and that is just in the accessible leks that were counted by hand. That report said population trends in Nevada have been flat since the mid-1990s.

While this may be an indicator that the state’s and local governments and businesses have already succeeded in protecting grouse, it is unlikely to sway the paperwork juggernaut of the federal government.

Gov. Brian Sandoval displayed some of his frustration with the agencies’ lack of cooperation and deafness to reason in a 12-page letter to the acting head of the BLM two weeks ago.

“The process was intended to be collaborative, inclusive and proactive; an unprecedented undertaking to bring federal agencies and states together to craft plans to adequately conserve the Greater Sage-grouse and preclude a listing under the Endangered Species Act,” the governor wrote. “Western state and multiple agencies have participated in this effort in good faith. We have expended millions of dollars and thousands of hours to present a scientific, innovative and effective conservation plan.”

Instead, the states were stonewalled, says Sandoval. He noted that the final 3,500-page land use plan released in May left unresolved, dismissed or ignored issues raised by the state. There was insufficient public notice or opportunity for comment. Scientific methodologies were changed without justification or explanation.

Sandoval said the plan “contains many new elements that disregard best science, Nevada’s state and local plans, and federal law. It is disappointing that this process has changed from a collaborative, proactive approach, to a now heavy-handed, federal approach that uses status-quo approaches and relies primarily on information from federal officials in Washington, D.C., rather than expertise from state conservation and wildlife agencies, and local input.”

 

 

Newspaper column: Nevada property rights case knocking on the door of the Supreme Court

A Nevada church is asking the U.S. Supreme Court to uphold its constitutional rights in the face of bureaucratic intransigence and contradictory laws.

In petitioning the court for a hearing this past month, the Center for Justice and Constitutional Litigation (CJCL), the legal arm of the libertarian-leaning Nevada Policy Research Institute, said current law essentially forces the church to choose between its First Amendment right to freely exercise its religion and its Fifth Amendment right to due process and compensation for the “taking” by government of its private property.

It started in December 2009 when Victor Fuentes and his wife Annette, whose church owns a 40-acre tract of land surrounded by the Ash Meadows National Wildlife Refuge, learned that the U.S. Fish and Wildlife Service planned to reroute a stream that had run through their property since at least 1881.

Victor and Annette Fuentes next to stream when it ran through their church camp. (Photo for Pahrump Valley Times by Mark Waite)

The property is a retreat for the Ministero Roca Solida (Solid Rock) church and the stream was one of the major attractions for visitors to what they called Patch of Heaven. It was also used for baptisms. On Christmas Eve 2010, heavy rains caused the stream to overflow its new man-made banks and flood the church property with water and mud, causing nearly $90,000 in damages to buildings and other property.

Following statutory procedures, CJCL filed a claim with Fish and Wildlife for damages. The agency never even acknowledged receipt of the claim, and CJCL filed suit.

Fuentes — a Cuban refugee who swam seven miles of open ocean in the dark from near his home in Santiago, Cuba, to Guantanamo Bay to gain political asylum — has been disturbed by the lack of justice he has received in his adopted country.

“I came to this country because I didn’t want the government’s hands on me,” said Fuentes in an interview when the litigation began. “I fled that government. That’s not the government I wanted to find here.”

Since the petition was filed with the high court, two amicus briefs have been filed in support of Roca Solida — one by the Nevada attorney general and another by the conservative Cato Institute and the National Association of Reversionary Property Owners.

“This is the powerful federal government squeezing an important but vulnerable religious ministry started by an immigrant who fled an abusive government in Cuba,” said Attorney General Adam Laxalt in a statement when his office filed the amicus. “I remain committed to protecting our state and its inhabitants from the detrimental effects of federal overreach and abuse of power.”

There is an urgency to the case, because a six-year statute of limitations is about to expire, even though the case has been languishing in various courts for most of those six years.

The petition and the amicus briefs argue conflicting law cannot erase fundamental constitutional rights.

CJCL Director and Chief Legal Officer Joseph Becker explained, “At issue is whether Congress may confine Pastor Fuentes and his churchgoers, the victims of multiple constitutional rights violations, to seek redress in but one federal court even though no single federal court has jurisdiction to remedy each of the constitutional violations suffered.”

Congress may not abrogate by statute a right constitutionally guaranteed.

“The hallmark of an unconstitutional condition is legislation that offers relief for a violation of a constitutional right, but only through the abdication of another right …” the attorney general’s amicus brief notes. “As the Court has done for decades when parties face a Hobson’s choice in adjudicating constitutional claims, the Court should grant review and clarify that the procedural statutes in this case should be interpreted to avoid this constitutional quagmire.”

The Cato and the property owners amicus quoted a passage from on opinion by Justice William Brennan: “As soon as private property has been taken, whether through formal condemnation proceedings, occupancy, physical invasion, or regulation, the landowner has already suffered a constitutional violation, and the self-executing character of the constitutional provision with respect to compensation is triggered. This Court has consistently recognized that the just compensation requirement in the Fifth Amendment is not precatory: once there is a ‘taking’ compensation must be awarded.”

The case, though complicated and even convoluted, is hardly academic to Nevadans who are downstream from numerous federal land agencies that control 85 percent of the state and presume the power to divert streams and close roads that lead to private property.

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

Newspaper column: States can do a better job of saving endangered species … and jobs

The Endangered Species Act (ESA) of 1973 was intended to protect the grand and noble eagles, bears, whooping cranes and condors, but it has turned into a tool for self-styled environmental groups to wipe productive human endeavors from private and public lands for the sake of protecting bugs, minnows, rodents and weeds.

During a recent online conference put on by Watchdog Wire, a network of citizen journalists, two authorities on the topic who come at it from the free market side suggested the best way to fight the ESA is to embrace its goal — saving species, as reported in this week’s newspaper column, available online at The Ely Times, the Mesquite Local News and the Elko Daily Free Press.

Greater sage grouse

Greg Walcher, president of the Natural Resources Group, noted that in the history of the ESA there have been more than 2,100 species listed, but fewer than half of 1 percent have been taken off — 10 because they were extinct.

He and Brian Seasholes, director of Reason Foundation’s Endangered Species Act project, said the U.S. Fish and Wildlife Service has been pressed by groups such the Center for Biological Diversity and Wild Earth Guardians into listing hundreds of species as endangered. In 2011 the federal agency settled a lawsuit by agreeing to list 757 species by 2018. Among those is the greater sage grouse, whose habitat covers much of Nevada.

Walcher, a former Cabinet Secretary of Colorado’s Department of Natural Resources, said:

“The endangered species protection and recovery was an enormously popular issue in our state, literally at 80-20 polling issue. People overwhelmingly support protecting and recovering endangered species and yet in the just concluded campaign every place we went it seemed like people were mad about it and he got asked about it on the campaign trail over and over and over again by angry people. It just struck us as sort of strange that people are no contentious and bitter, antagonistic and even litigious over issue that we supposedly all agree on.

“So we decided to take a completely different approach in our state — nothing particularly new or different about what was going on in Colorado, but based on three really essential premises. One, that the Endangered Species Act is one of the most powerful laws enacted by Congress when some federal official you’ve never heard of who is five rungs below anyone accountable can declare a species to be endangered or threatened and that kicks in a whole body of federal law that just sort of seems to trump everything else — other federal laws and state laws and local operations and everything else.”

Walcher said the state discovered — with respect to several specific species in Colorado — that there not only was no recovery plan in sight but no one ever really talked about goals or delisting criteria.

Colorado pikeminnow

“In fact, they didn’t have the first clue what that criteria ought to be,” Walcher said. “We started actually with the endangered fish in the Colorado River, because it’s a series of water issues that affect the well being and economy of 30 million people in seven states and is a part of a 75-year-old battle over use the Colorado River in the most arid part of the county where you have to be able to divert water out of that river and use it or you can’t live there.”

Colorado engaged the federal agency in a years-long battle, before it unilaterally spent $5 million to build a hatchery dedicated to endangered fish.

“We began putting razorback suckers and bony-tailed chubs and humpback chubs and Colorado River pikeminnow back in the river by the hundreds of thousands,” Walcher said.

“There came an ah ha moment for me … The Fish and Wildlife Service literally tried to tell us it was illegal to do that,” he said. “They brought in batteries of federal lawyers to tell us the state wasn’t even allowed to possess an endangered species much less raise them in captivity and reintroduce them into the wild. It was all very political, so we responded by saying, well, OK then the governor’s going to have a press conference on the capitol steps and tell the world that you, the federal Fish and Wildlife Service, are opposed to recovering endangered species.”

That stopped that.

Instead of confronting the agenda of environmentalists with arguments about how it affects human endeavors and the economy, Seasholes suggests states show the public how the ESA is harmful to its stated purpose. He noted how the law’s onerous penalties — “$100,000 and/or one year in jail if you harm one species, one egg, one chick, anything, or even if you harm its habitat” — provides a strong incentive for landowners to rid their land of endangered species and their habitat — often called shot, shovel and shut up.

Seasholes stated:

“Those of us in sort of the free market, limited government camp tend to think about environmental issues, especially stuff like the Endangered Species Act, as issues of secondary and tertiary importance. I think that you really need to pay attention to this issue because the Endangered Species Act is going through a phase of unbelievable growth right now. It is going to start touching parts of the country it has never touched, start touching sectors of the economy that have been relatively untouched, especially oil and gas. The Endangered Species Act is increasingly being used as a regulatory means to do other things, whether it is water quality, air quality, global warming. There is global warming slash climate change push with endangered species. So I think that this is something our side has really not paid much attention to its detriment. …

“But we have a winning had to play with this because the Endangered Species Act is so damaging and detrimental to its purpose of preserving endangered species.”

Another example cited by Walcher was how the Forest Service wrote up management plans for forests in Colorado to protect lynx, which had not been found in the state in decades and never amounted to a population of more than 18 even then. But the agency intended to close roads and ban snow mobiles and stop logging, grazing and drilling.

Lynx

The state imported hundreds of lynx and there are now more than ever before.

Though environmentalists and Fish and Wildlife bitterly opposed the restocking in private meetings, Walcher said, “I can tell you that not one time did any environmental organization or any federal agency ever publicly criticize us for it. … Who’s going to stand up in front of a room full of people and say, ‘You know I don’t really care about those fish I just want to control the water and stop growth in the Southwest.’ Or, ‘I don’t care about the lynx, I just wanted to stop logging.’ Or, “I don’t care about the Gunnison sage grouse, I just want to stop grazing and ranching.’ Nobody can admit to some other agenda, because the public wouldn’t be with them then.”