September 1, 2016

Madeleine Pickens' losing battle with the BLM

Wild horses of the endangered Mustang Monument ranch property.

By George Knapp, Matt Adams
Las Vegas Now

LAS VEGAS -- A $25 million eco-sanctuary meant to be a tourist attraction for rural Nevada is closed and may never re-open.

The Mustang Monument in Elko County was created as an alternative for the troubled wild horse program, but the Bureau of Land Management has stopped the project from moving forward.

The I-Team has obtained internal documents which show that what the BLM said in public is much different from what it thought in private.

The wild horse program is through by many to be the worst program in the federal government. Bad for the horses, bad for the range, bad for the taxpayers.

Every two or three years, the feds pay for an expensive study, and every study concludes that BLM needs to try something different.

BLM always reacts the same. It ignores the recommendations.

Mustang Monument was going to be a public private partnership -- a radical change good for the horses, the range and the taxpayers.

The public records request shows it never had a chance.

"This is a new batch obviously, these young ones," said Jerry Reynoldson.

At a corral on the Mustang Monument property, veteran wild horse advocate Jerry Reynoldson checks out some new arrivals. For more than 25 years, Reynoldson has tried to work with BLM on solutions to its troubled wild horse program, and he's been a key advisor to Madeleine Pickens in her development of the mustang monument as a model for what could be done, but both now believe BLM was never going to allow it to happen.

An obscure road is an example, Pickens planned to use it to transport tourists from her guest accommodations to deeded property on the other side of her range for cookouts and to see the herd of horses that was living out there, that is, until vandals cut the fences and the horses either died or ran off. BLM won't allow the use of the rarely traveled access road.

"BLM has given her four or five pages of questions about what she would do on the road which include, where would people go to the bathroom? The answer is, it's a short enough drive they wouldn't go anywhere but they don't want to know where, they want to know how many times would they stop, how many times would they need to use a facility. Silly questions," Reynoldson said.

A road that's been trod for a century by cows, sheep and horses can't be used to transport visitors because someone might have to pee.

BLM is making sure they keep putting their foot out and tripping me up every time," said Mustang Monument founder Madeleine Pickens. "I keep getting up, they stop me."

Pickens spent $6 million for two sprawling ranches because she was encouraged to do so by BLM. She offered to get other investors to buy another 2 million acres, and take all 30,000 wild horses the BLM had in storage, a plan which BLM admits would save the taxpayers more than $100 million in just five years.

In public statements, BLM said it wanted to work with Pickens, but privately, it's another matter. Public records obtained by the I-Team show that BLM staff plotted the demise of Pickens plan from the beginning. A 2008 white paper discusses how the law could be used to prevent the project. BLM blacked out the details as being privileged information.

BLM declined to be interviewed for this report, but in a written statement explained why, after seven years, the bureau still has not completed an environmental review. We need more information, the BLM told the I-Team and since there are "unresolved issues" with the Pickens plan, no such analysis would be appropriate.

In one candid memo, BLM admits an unspoken concern that the proposal would be politically perilous in cattle-friendly Elko County.

BLM staffers imposed ever-changing conditions that they knew would stir up opposition, not only from ranchers but also from wild horse advocates, such as forcing the roundup of existing horses on the range, making all of the Pickens horses sterile, and putting fences around the entire public acreage.

In 2015, BLM finally tipped its hand. When Pickens asked during a meeting what it would take to get the necessary permits, bureau staffers issued a startling demand.

"They said, we've had internal discussions. If you'd be willing to surrender your grazing and water rights, we could work with you on the project," Reynoldson said.

Giving up the grazing and water rights would in effect mean giving up the property itself. Pickens was stunned, and decided soon after that the monument would not open in 2016 for visitors, knowing BLM would never allow it.

"The BLM, the Interior Department have blown up stories and created fabricated issues that simply don't exist. The only thing I can say is, it's a failed program. It's a failed agency. I feel sorry for them. Every time I do something, they fine me, or they find a way to come and get me. It's a witch hunt," Pickens said.

The Mustang Monument opened for a period last year and high-end tourists, especially foreign visitors, they loved it. Pickens already had reservations lined up for this year, but she never opened because the BLM wouldn't allow her to move forward and also because of opposition from Elko County officials and residents.

August 31, 2016

Proposed final version of controversial Red Cliffs management plans released

Red Cliffs provides important habitat at the intersection of the Colorado Plateau, the Great Basin and the Mojave Desert.

Written by Julie Applegate
St. George News

ST. GEORGE – The Bureau of Land Management has released proposed resource management plans for two national conservation areas; the plans affect more than 100,000 acres of public land in Washington County and have been controversial.

The draft versions of the management plans for the Red Cliffs and Beaver Dam Wash national conservation areas stirred heated debate during the public comment period which ended in October 2015.

County, municipal and transportation officials believe the plans go too far in restricting land use, while conservationists favored more restrictive elements of the plans.

While county officials and others have not had a chance to fully review the proposed plans, Deputy Washington County Attorney Celeste Maloy expressed both appreciation and concern.

“We are so grateful for the participation of thousands of concerned citizens as well as local, state, and congressional elected leaders,” Maloy said.

“We asked for the public to comment last fall and the public responded,” Maloy said. “We asked for support from elected officials, and they stepped up as well. Our collective efforts paid off in some really positive ways.”

Early on in the process, county officials weren’t satisfied with the level of input they were being allowed on the resource management plans, Maloy said.

“Without a doubt, the communication and understanding between the county and the local BLM have improved during this process. We consider that a win. Local BLM staff listened to our concerns when we reacted to the draft plan.”

From an initial look at the plans, Maloy said, some of the changes from the initial draft to the proposed final plan released Tuesday are significant improvements; however, other issues addressed in the resource management plans will take continued work.

“For example, BLM’s final position on the Northern Corridor is disappointing. With all of the dialog between the county, cities, and federal agencies on that issue, we had hoped to have a more clear option to meet our future transportation needs,” Maloy said.

The county will continue to pursue all legal and political avenues to protect Washington County’s interests, she said.

Transportation officials are concerned that the resource management plans will prevent a long-planned Northern Corridor through the Red Cliffs National Conservation Area, which includes the Red Cliffs Desert Reserve, home of the endangered Mohave desert tortoise.

The draft resource management plan for the Red Cliffs National Conservation Area did not list the county’s optimal route in its “preferred” alternative.


A 90-day public comment period, which began July 16, 2015, was extended past the original Oct. 15 deadline to Nov. 16 after local officials demanded more time. A series of BLM open houses were held to help inform the public about the resource management plans.

The two national conservation areas are the first in Utah and were created by the Omnibus Public Land Management Act of 2009, known as OPLMA, to “conserve, protect, and enhance … the ecological, scenic, wildlife, recreational, cultural, historical, natural, educational, and scientific resources” of the public lands, according to a BLM statement.

The Red Cliffs National Conservation Area comprises 44,859 acres and is located just north and adjacent to much of the population of Washington County.

Red Cliffs provides important habitat for the threatened desert tortoise and many unusual plant species in the intersection of the Colorado Plateau, the Great Basin and the Mojave Desert. This area includes a stretch of the Virgin River and a number of popular trails.

The Beaver Dam Wash National Conservation Area covers 63,478 acres and is located in the southwest corner of Utah. The area contains many native plants and animals which have evolved into unique species, some found nowhere else on earth.

Beaver Dam Wash includes the northernmost range Joshua trees and riparian areas that are important stops for migratory birds; the area is also known for remote recreation opportunities such as hiking, rock climbing, horseback riding and wildlife viewing.

A proposed amendment to the St. George Field Office resource management plan has also been released. The proposed amendment addresses two primary management issues: identification of areas where biological conservation is a priority and modifications of the off-highway vehicle area designations to prepare for the development of a comprehensive travel management plan.

Protest period

The publication in the Federal Register of the Notice of Availability by the Environmental Protection Agency of the proposed plans will initiate a 30-day protest period. That is expected to happen Friday, Bureau of Land Management Color Country District spokesman Christian Venhuizen said.

However, copies of the proposed final plans were provided Tuesday to give the county and others more time to review and respond to the documents, he said.

Anyone who participated in the planning process and who has an interest that is or may be adversely affected by the planning decisions may file a protest within 30 days of that publication, BLM information states.

The protest period is not the same as the public comment period, Venhuizen said.

“This is a slightly different period … we’re not looking for public comment,” he said. While the public is invited to review the documents, the official public comment period has passed.

However, the resource management plans cannot be finalized by Records of Decision until all the protests are resolved, Venhuizen said.

The Governor’s Consistency Review began last week and gives the Governor’s office a minimum of 60 days to review the resource management plans before the records of decision are signed, Venhuizen said.


The proposed plans and amendment, along with a final environmental impact statement, are available to view or download from the BLM’s ePlanning website here.

Copies of the documents are available for inspection at the Interagency Public Lands Information Center, 345 East Riverside Drive in St. George, and the BLM Utah State Office Public Room, 440 West 200 South, Suite 500 in Salt Lake City. The documents are available during from 8 a.m. to 4:30 p.m., Monday through Friday, except on federal holidays.

All protests must be in writing and mailed to one of the following addresses:

  • U.S. Postal Service: BLM Director (210), Attention: Protest Coordinator, P.O. Box 71383, Washington, DC 20024–1383.
  • Overnight Delivery: BLM Director (210), Attention: Protest Coordinator, 20 M Street SE, Room 2134LM, Washington, DC 20003.

Before including your address, phone number, email address, or other personal identifying information in your protest, you should be aware that your entire protest — including your personal identifying information — may be made publicly available at any time. While you may ask the BLM in your protest to withhold your personal identifying information from public review, the BLM cannot guarantee that it will be able to do so.

For additional information, please contact Keith Rigtrup at 435-865-3000.

August 20, 2016

Summit Inn, a popular roadside diner, destroyed by wildfire in Cajon Pass

The Blue Cut fire has scorched more than 37,000 acres so far. Satellite imagery captured Thursday shows the extent of the burn area. This "false color" image from NASA’s Landsat 8 satellite uses a combination of color and infrared bands to help distinguish burn scars and hotspots from vegetation.

Matt Hamilton
Los Angeles Times

One casualty of the raging wildfire in San Bernardino County: the Summit Inn, a popular roadside diner at the crest of historic Route 66.

Flames from the Blue Cut fire tore through the historic inn on Tuesday, according to video footage of the inferno.

After opening in 1952 [sic], the diner -- outfitted with red leather booths and walls adorned with memorabilia -- became a familiar spot for those traveling to and from the High Desert.

The Summit Inn, which recently changed ownership, had touted its celebrity clientele, including Pierce Brosnan, Clint Eastwood and Elvis Presley.

In 2014, a drunk driver slammed into the restaurant and plowed into the kitchen, causing an estimated $50,000 worth of damage, the Daily Press reported.

Video: Blue Cut fire consumes the Summit Inn.

Firefighters tightened their grip on the fast-moving Blue Cut fire overnight Friday, capitalizing on humid weather conditions to gain greater control over the 37,020-acre blaze, authorities said Saturday.

The fire, which is 68% contained, has destroyed 105 homes and 213 other structures in San Bernardino County since it broke out Tuesday for reasons investigators are still trying to determine.

The tally for California’s harsh fire season ascended to even grimmer terrain Saturday as officials announced that the Blue Cut fire in the Cajon Pass has destroyed 105 homes and 213 other structures.

As of Saturday night, the Blue Cut fire had burned 37,020 acres near the 15 Freeway in Cajon Pass and was 73% contained.

August 18, 2016

‘Confusion at every level’ of the Park Service

By Joe Davidson | Columnist
Washington Post

Years of sacred- and ceremonial-ground desecration at the Effigy Mounds National Monument in northeast Iowa disgraced the National Park Service, as did a recently sentenced former park manager who stole ancient human remains and hid them in his garage for more than two decades.

A review team of Park Service officials from outside the monument’s region examined the defilement and pronounced themselves “astonished” in an “after action” report released last week.

Its piercing conclusions go well beyond the Effigy Mounds scandals and cut right to the Park Service’s culture.

Given the critical issues the report found throughout the NPS, which celebrates its centennial next week, perhaps it is more surprising that shameful stories like Effigy Mounds aren’t more common.

In addition to the bone thefts, at least 78 projects on the grounds — costing almost $3.4 million from 1999 to 2010 — did not follow National Historic Preservation Act or National Environmental Policy Act provisions. A former superintendent, Phyllis Ewing, lost her job because of that. The projects included “an extensive system of boardwalks throughout the more than 200 American Indian sacred mounds,” according to the report. The mounds are over 1,200 years old.

NPS Midwest Regional Director Cam Sholly said the wrongdoing not only “violated the law and damaged resources” but also compromised “our valuable tribal relationships and the public trust.”

The report describes a confused agency beset with weak management of the nation’s cultural resources that it is charged with safeguarding.

“As the National Park Service is responsible for resources stewardship, we are also responsible for the damage and destruction of the resources entrusted to us,” the report says. “Sometimes it seems as if we hold visitors, concessioners, and contractors to a higher standard than we do ourselves when it comes to resources stewardship.”

Among the problems outlined in the report:

  • “Lack of staff knowledgeable and skilled in cultural resources management results in inappropriate collateral duties assigned to staff not qualified to complete the task.”
  • Employees “consistently reported that they had no authority to report concerns or to follow up on concerns reported in their chain of command.”
  • “Law enforcement rangers and solicitors are not well enough versed in cultural resources laws and policies.”

The problems infect the agency from top to bottom, from Washington to the local parks.

“The internal role of the park, regional office, and Washington Support Office in cultural resources management is neither well defined nor consistent. What work we should be doing and where it should take place to be most effective is not clear…” the report said. “There is confusion at every level, uncertainty as to span of responsibility, authority, and accountability.While this confusion has to do with who does what at each level of the agency, there is no understanding as to roles, responsibilities, and authorities regarding risk, mismanagement of or impacts to cultural resources.”

Three “overarching recommendations” were offered: “educate and empower all employees as stewards” of cultural resources; increase awareness of cultural resource laws, regulations and penalties; and “resolve the confusion of what work cultural resources professionals should be doing.”

Although the report provides a sharp agency critique and specific recommendations, the document amounts to “a bucket of mush on Effigy Mounds scandal,” says Public Employees for Environmental Responsibility.

“This new report epitomizes what is wrong with the current Park Service leadership, which never takes direct responsibility for screw-ups no matter how flagrant or preventable,” said PEER Executive Director Jeff Ruch. “Tellingly, this report preaches transparency and accountability but illustrates precisely the opposite, gauzing over critical facts and offering not a single meaningful reform.”

Thomas A. Munson is a former Effigy Mounds superintendent who has been held accountable, albeit long after his criminal deeds. In 1990, he stole remains of 41 Native Americans, more than 2,100 individual pieces, then concealed them in garbage bags in cardboard boxes in his garage. He was sentenced last month to 10 weekends in jail, 12 months of home confinement, plus probation and more than $100,000 in restitution.

Munson’s sentencing, reliving the Effigy Mounds lawlessness, and the frank after-action report are just the latest in a string of bad news that has muddied the agency’s 100th-anniversary year. Interior Secretary Sally Jewell has complained about a Park Service culture that “allows” sexual harassment. The NPS has been criticized for confusing park promotion with corporate commercialism. And NPS Director Jonathan B. Jarvis had to apologize for his ethical lapses.

The after-action report into Effigy Mounds said it was done because of a “deep concern” by agency officials that “this never happen again.”

That should apply to a range of National Park Service problems.

August 16, 2016

The Pipeline and the Short Seller

Emails show a federal regulator shared non-public information with an investor.

Water gushes into a pilot spreading basin on Cadiz Inc. property in California's Mojave Desert in 2002. (PHOTO: ZUMA PRESS)

Wall Street Journal

Trust in Washington has hit a historic low, and one reason is the sense that government regulators favor some people over others. Consider an email trail that reveals how a federal employee shared inside information about regulatory approval with a short seller.

The emails concern a water pipeline in California that is stuck in regulatory limbo. The story begins in 1998, when the Los Angeles-based land management company Cadiz Inc. began plans to develop a groundwater bank on private land overlying a watershed in the Mojave Desert. Cadiz proposed building an underground pipeline along the Arizona & California Railroad’s right-of-way to transport 50,000 acre-feet of water annually to Southern California.

The Department of Interior’s longstanding policy allowed railroads to run power, telephone and fiber optics lines along their rights-of-way without a federal permit, thus expediting environmental review. However, in November 2011, after Cadiz had modified its plan to reduce environmental opposition, Interior at the insistence of California Sen. Dianne Feinstein revised its policy to limit the use of railroad rights-of-way granted in 1875 to “activities that derive from or further a railroad purpose.”

The Cadiz pipeline was the only project subject to the new rules. Cadiz spent several years and $12 million reconfiguring the pipeline to “further a railroad purpose,” proposing the likes of hydro-turbines, power safety systems and automated fire suppression. None of Cadiz’s compromises satisfied regulators.

On Oct. 2, 2015, the Bureau of Land Management (BLM) informed congressional staff—who tipped off Cadiz—of an imminent adverse ruling. A letter circulated by the bureau noted that the pipeline “does not derive from or further a railroad purpose” because the fire suppression system was “an uncommon industry practice,” among other complaints. The kicker was that the ruling could not be appealed because it “is not a final agency decision.” Thus the pipeline would have to undergo a formal environmental review. Ms. Feinstein has attached riders to every Interior appropriations bill since 2008 barring a review.

Within a week of the BLM ruling, Cadiz’s stock plummeted 65%. Yet one Cadiz investor had inside information that could have allowed him to make a killing. Emails obtained through a Freedom of Information Act request by Cadiz reveal that BLM realty specialist Erik Pignata (who oversaw the Cadiz review from the Sacramento bureau) shared non-public information with Cadiz investor Thomas McGannon of Whetstone Capital Advisors. Cadiz provided the emails to us.


Whetstone, based in Mission Woods, Kansas, describes itself as “a value oriented long/short investment fund.” Mr. McGannon told the Kansas City Business Journal in May 2014 that “when we put a short into the Whetstone portfolio, it’s because we’ve done research on a specific company and think that for one reason or another the value of that company is declining and the stock price is likely to decline over time as well.” That strategy would certainly fit with Mr. McGannon’s research into Cadiz with the help of the BLM’s Mr. Pignata.

Mr. McGannon declined to say if or how he traded Cadiz shares and sent us this statement: “Our research over a five year period led us to believe that there was an investment opportunity presented by Cadiz’s stated business plan, which appeared contrary to information that was publicly available. We did not seek nor obtain any material non-public information regarding the Cadiz Water Project.”

Yet the emails suggest that Mr. McGannon sure was interested in regulatory decisions about Cadiz. The Pignata-McGannon email trail that we’ve seen begins with Mr. McGannon following up on a FOIA request in September 2014 soliciting information about the bureau’s review. Mr. Pignata referred documents related to the request to the bureau’s FOIA officer. This should have closed their communication since government employees aren’t supposed to disclose non-public information to third parties outside of the FOIA process that could benefit private interests.


Mr. McGannon continued to probe Mr. Pignata about the project’s regulatory prospects. “Does the green line go through BLM lands?” Mr. McGannon asked in a Sept. 9, 2014 email, referring to a map of the Cadiz project. “I was mostly just curious if an alternate route along the green line would require BLM approval.” Mr. Pignata responded later that day that the alternative route “almost certainly” does.

On Feb. 19, 2015, Mr. McGannon inquired if there has been “any movement on the project discussions since we last spoke?” Mr. Pignata replied: “No, we are formulating our evaluation with DOI legal staff.” The emails suggest the two chatted repeatedly over the phone.

On June 4 Mr. McGannon emailed “great to catch up” along with a link to a blog post “Strong Sell On Project Failure, Insider Enrichment, And Bankruptcy, Price Target $0” that eviscerated Cadiz. On September 23 Mr. McGannon asked if there was “any news likely this week?” Mr. Pignata replied: “I have a briefing w/ the almost-highest people in my agency tomorrow . . . No pressure or anything.” Mr. McGannon cheered him on: “You got it man!”

A week later, Mr. McGannon inquired into when an adverse ruling would be finalized: “Wont [sic] it be great when I don’t bother you anymore.” Mr. Pignata replied: “I have a feeling Cadiz, Inc. isn’t going anywhere . . . so you’ll get to keep bugging me.” Several of Mr. Pignata’s emails suggest an animus toward the Cadiz project.

On October 1, Mr. Pignata assured his hedge-fund pen pal that the BLM determination would “for sure” be “signed tomorrow.” Mr. McGannon rejoiced: “Maybe one of these days ill [sic] get to buy you a beer or something as a thank you.” BLM made its ruling the next day.

Cadiz disclosed on October 5 that it had been briefed by a congressional office that an adverse ruling might be imminent. The company says the bureau did not respond to its email requests for confirmation. Cadiz’s share price tumbled by nearly two-thirds. A short seller who bet against the stock and had advance knowledge of the outcome could have made significant gains.

There are numerous chronological gaps in the emails between Messrs. Pignata and McGannon, which suggests there may be more documents the government hasn’t turned over. Mr. Pignata declined comment beyond an email saying he had complied with the FOIA request. A spokesperson for the Bureau of Land Management says the agency recently became aware of the Pignata-McGannon communications and has referred the matter to the Department of Interior’s Office of the Inspector General.

House Oversight Committee Chairman Jason Chaffetz has sent a letter to the Bureau of Land Management soliciting more information about the correspondence. The bureau should explain whether Mr. Pignata’s communications comport with a 1990 executive order forbidding government employees from improperly using non-public government information to further a private interest.

August 10, 2016

How the Feds Support Eco-Terrorism

Tate Fegley
Mises Wire

Both before and after September 11, 2001, the FBI has considered “eco-terrorism” one of its primary domestic terrorism concerns. The FBI defines “eco-terrorism” as “the use or threatened use of violence of a criminal nature against innocent victims or property by an environmentally-oriented, subnational group for environmental-political reasons, or aimed at an audience beyond the target, often of a symbolic nature.”

It comes in several forms, but one of its primary tactics is “ecotage” or “monkey-wrenching” where radical environmental groups sabotage the property of companies whose activities they deem to be bad for the environment (such as the capital goods used in the logging industry).

But, some groups have discovered a tactic in which they are able to not only avoid punishment by federal law enforcement, but also enlist the feds as willing partners in their effort to destroy private property or deprive people of it.

One of the groups that has practiced this method to perfection is the Western Watersheds Project (WWP), which has the intention of abolishing all grazing on lands claimed by the federal government. As detailed by William Grigg, the WWP sends people to search for endangered species (including while trespassing on private lands) in order to sue the Bureau of Land Management (BLM) to revoke grazing permits for ranchers using those lands, or to sue the ranchers themselves. The federal courts have been more than willing to indulge WWP in their efforts. In one case, the WWP sued an 85-year-old rancher named Verl Jones, claiming that irrigation of water on his own property harmed the bull trout. Despite not presenting any evidence to demonstrate this, the federal court required Jones to stop irrigating and to pay the WWP’s legal fees. After losing his ranch and being forced to sell off his assets in order to pay them, Jones soon passed away.

The legal actions of the WWP that have decreased grazing allotments have not only made life more difficult for ranchers, but have led to lands growing vegetation that has served as extra fuel for range fires. One such fire, the Soda Creek Fire, occurred last year and devastated nearly 300,000 acres. Ironically, the WWP, aided by the federal courts and the BLM, has helped to destroy much of the habitat of Sage Grouse and other federally protected species, as well as kill wild horses and cattle. Whereas other radical environmental groups intentionally avoid harming humans (at least physically) and animals, the joint efforts of the WWP and the federal government have led to the deaths of both. In this way, the feds have enabled radical environmentalists to be more dangerous than they would be on their own.

Of course, it isn’t uncommon for the US government to provide material aid and comfort to groups that itself has labeled as terrorist. Allies transform into national security threats, and vice-versa, depending on the times and what crises are needed by politicians to obtain more power. On the one hand, selling the threat of terrorism allows them to create legislation in order to prosecute people who have no intention of committing terrorist acts. Ranchers Dwight and Steven Hammond, for example, were prosecuted under an anti-terrorism statute for lighting fires on their own land (to give themselves a buffer against fires that the BLM fails to prevent or contain) that minimally spread to remote federal lands. On the other hand, the feds have a clear incentive to exaggerate all environmental threats and promote themselves as savior, provided they are given the money and power to regulate nearly all human activity.

It should not surprise us that the federal government plays both sides of the fence in order to increase its own power. Although the FBI considers eco-terrorism — the use or threat of violence to violate property rights in the name of the environment — a top domestic terrorism threat, the purpose of another federal agency, the EPA, is to violate property rights in the name of the environment. Just as in foreign policy, whether a particular action is considered a terrorist act depends on the identity of the perpetrator. Bombing civilians is not terrorism, but collateral damage. Burning down someone’s house because it is on a wetland is terrorism; imposing excessive fines until they leave or forcibly preventing them from building it in the first place (when done by the EPA) is considered good policy.

Therefore, everyone should recognize that the federal government has little interest in protecting property rights or the environment (which are not mutually exclusive; protecting the former naturally protects the latter). Rather, whether it is aiding and abetting radical environmentalist groups to drive ranchers off their lands, or creating anti-terrorism laws to ostensibly target radical environmentalist groups, the feds will do whatever is necessary to increase their power.

August 2, 2016

Americans in the Western States Are Denied Equal Rights

Washington curtails the ability of local governments to generate tax revenue for basic services.

by George R. Wentz Jr & John W. Howard
National Review

Over the years, America has seen steady progress on the principle that individuals enjoy equal rights under the law. But that principle is violated daily for the tens of millions of people who live in the twelve western states where most of the land is claimed by the federal government. What does federal control of most of the land within a state have to do with equal rights? The answer may surprise you.

First, consider what the Supreme Court refers to as the “police power.” This is the power to legislate regarding the health, safety, and welfare of residents of a state. As Chief Justice John Roberts put it in NFIB v. Sebelius, the first Obamacare case,

state sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U.S. 144, 181 (1992) . . . Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293 (J. Madison). The independent power of the States also serves as a check on the power of the Federal government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.
Bond v. United States, 131 S. Ct. 2355, 2364 (2011).

But in Utah, for example, where over 66 percent of the land is claimed by the federal government, unelected federal bureaucrats exercise police power over far more of Utah than the governor, state legislators, and county commissioners do. Citizens of Utah are routinely entangled in vast federal bureaucracies when it comes to issues that “in the ordinary course of affairs” concern their “lives, liberties, and properties.” They must deal with the Bureau of Land Management, the National Forest Service, the EPA, and a host of other federal bureaus, agencies, etc.. Routine local land-management issues quite literally become federal cases. One government — the federal government — has complete jurisdiction over all the concerns of public life in over 66 percent of the state, exposing Utah citizens to solidified “arbitrary power” in a way that no citizen of New York State, for example, ever encounters. There the federal government claims less than one quarter of 1 percent of the land, and New Yorkers can deal with elected local officials to solve the vast majority of their problems.

Just ask the citizens of San Juan County, Utah, who have had their homes raided by heavily armed Bureau of Land Management agents and have seen one of their county commissioners prosecuted and sentenced to ten days in prison and fined $96,000.00 for riding an all-terrain vehicle on a county water-line-maintenance road that had been unilaterally closed down by the feds. A county sheriff in New York who raided homes or arrested a county commissioner would quickly be voted out of office. The citizens of San Juan County have no such recourse. Instead of exercising their political franchise to protect their “lives, liberties and properties,” they must fight the full weight and unlimited resources of the federal government.

Or consider the ability to self-govern, the cornerstone of citizenship. The Supreme Court has described the ability to tax as a necessary sovereign right of each state. And property taxes are the primary tax on which local governments depend. But Nevada is deprived of the ability to tax over 83 percent of the land within its borders. Even worse, Nye County, Nev., cannot tax the 92 percent of its land that is claimed by the federal government. Just imagine trying to fund roads, schools, libraries, police departments, fire departments, and parks-and-recreation departments on taxes generated by less than 8 percent of the land within your county.

The federal government explicitly recognized this inequity in 1976 when it passed the Federal Land Policy and Management Act. To try to compensate local governments, a sort of federal welfare program, Payment in Lieu of Taxes (PILT), was established. But PILT payments are a poor substitute for property taxes.

First, PILT payments are insufficient. They pay local governments far less than what property taxes would bring in. For example, Kane County, Utah, generates much more revenue from taxing the less than 8 percent of privately owned land within its borders than it receives in PILT payments on the more than 90 percent of its land claimed by the federal government. Second, PILT payments are uncertain because eastern-state delegations routinely prevent Congress from issuing the payments, in order to pressure western delegations on pending votes. Third, governments of western states cannot spend PILT dollars the way eastern states spend tax dollars, because policy on how PILT payments can be spent is set by the federal government, not local citizens. In short, PILT payments make local governments in the west dependent on and beholden to the federal government, unlike local governments in the east, which are free to raise and spend taxes as they see fit. As a result, westerners are denied an essential right enjoyed by citizens in the east: the right to self-govern.

They are also denied certain opportunities to get ahead in life. Eastern states routinely take land for public improvements designed to generate jobs, industry, and commerce. But western states cannot condemn federally claimed land for public improvements. Imagine trying to build a road, power line, broadband system, or telecommunications system in a state where you can’t throw a stone without running into federally claimed land. It is just not possible.

Idaho recently embarked on a project to deliver additional electrical power to the state. Owing to the state’s inability to condemn federal land (over 61 percent of the state), the path of the power line had to tack jaggedly back and forth across the state. The additional length of the power line taken up in avoiding federal land reduced by two thirds the power that the project could deliver. Try creating jobs, industry, and commerce with inadequate electricity. This would have never happened in New York, where the state would simply have condemned the lands that lie in the most efficient and effective path.

Let’s consider the cumulative impact that the denial of all these rights have on westerners: the denial of equal political power. Imagine trying to convince your adult children to stay in a town they know cannot provide a thriving economy or even the basic amenities of life, such as electrical power, good roads, cell service, and broadband. Imagine attracting new people to a state without the ability to determine its own future — a state dependent on the debt-burdened federal government for welfare checks to try to survive.

Impoverished western counties dominated by federally claimed land are exporting children and importing poverty. Their population does not grow. And how is political power at the federal level shared among the states? Congressional seats and Electoral College votes are allocated on the basis of population according to the Census. Population is the constitutional currency in the competition among the states for political power. And western states are deprived of that currency because they have been deprived of all the sovereign rights discussed above.

The Framers were concerned about this prospect. On September 5, 1787, the Constitutional Convention was considering granting the federal government the ability to purchase land within a state. According to the convention record, Elbridge Gerry of Massachusetts “contended that this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Genl. Government.”

As a result, the federal government was barred from purchasing land within a state without the consent of the state legislature. That protection is included in Article I, section 8, clause 17, now known as the enclave clause. However, western states have never been given dominion over the land within their borders, and the result that Mr. Gerry feared has been achieved. Western states and their citizens are not equal. Contrary to the intent of the Framers, they are awed “into an undue obedience” to the federal government.

Those who raise this issue are often vilified as radical extremists by eastern elites. For example, in the Wall Street Journal (April 19, 2016), Interior Secretary Sally Jewell was quoted as referring to “an extreme movement to seize public lands.” That phrase mischaracterizes the careful analysis conducted by western states in their attempt to achieve equal rights for their citizens:

The right to have routine matters involving their lives, liberties, and properties determined by local officials whom they elect and can vote out of office. The right to self-determination. The equal right to raise taxes to pay for roads, schools, libraries, police departments, fire departments, and parks-and-recreation departments. The right of local government to create a strong economy. And, finally, the right to be represented in the halls of Congress equally with the citizens of the 38 states not dominated by the federal government

Equality is not an extreme idea. It is the basis on which our nation was founded. In a long, unbroken line of cases extending from 1845 to the present day, the Supreme Court has consistently held that the Constitution demands equality with respect to the sovereign rights of states. All of the rights discussed above have been recognized by the Supreme Court as sovereign state rights. Their denial in some states results in the unequal treatment of the citizens of those states.

In Shelby v. Holder, 133 S.Ct. 2612 (2013), the Supreme Court overturned the pre-clearance provisions of the Voting Rights Act, which singled out certain states for disparate treatment, and in the course of his argument for the majority, Chief Justice Roberts noted that

not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911). Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” The fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. Id., at 580.

Today, twelve western states are being treated disparately on issues relating to their sovereignty. Millions of citizens are denied equal rights, rights enjoyed by citizens of eastern states. It is a result that the Constitution does not allow. It is wrong for for eastern politicians and federal agencies in D.C. to continue to dismiss this issue. It is time for a reasoned discussion about the denial of equal rights for citizens of western states — and about how to correct the disparity.

— George R. Wentz Jr. is a lawyer with the Davillier Law Group in New Orleans. John W. Howard is a constitutional scholar and litigator in San Diego.

August 1, 2016

County should say no to Soda Mountain solar


By Jacob Overson
Desert Dispatch

Growing up in one of the California desert’s last remaining ranching families instilled in me a deep love of open spaces, wildlife and the independent people who call the desert home. My family taught me to work hard, make decisions carefully and steward the fragile desert ecosystem.

As manager of the Baker Community Services District (Baker CSD) I call on 1st District Supervisor Robert Lovingood and the other San Bernardino County Supervisors to oppose the Soda Mountain Solar Project.

The Soda Mountain Solar Project undermines our county’s interests, harms communities, jeopardizes a national park unit and contradicts our county renewable energy ordinance. Thousands of San Bernardino County residents and numerous local organizations, businesses, scientists, recreation groups, and gateway communities vocally oppose the project.

Soda Mountain Solar has been forced on the County and local communities by outside interests seeking their own political and financial goals, while we deal with the environmental consequences.

Political appointees from the Department of Interior’s Washington office railroaded this through approvals despite the agency’s local desert staff saying “no.” San Bernardino County was thrown under the bus so that the Obama Administration could claim progress on their renewable energy development goals.

Meanwhile, San Francisco-based Bechtel Group, a multi-national corporation, capitalized on the motivations of the Interior Department and rammed the project through a federal environmental review process. We recently found out they immediately plan to sell it to another San Francisco company, Regenerate Power.

Once again, our county and local communities have to pay the price as we watch San Francisco companies play “Monopoly” and literally manipulate our landscape and way of life. Luckily we can stop this game right here at home before the company passes go and collects hundreds of millions of dollars of taxpayer money.

The National Park Service (NPS) remains opposed to the project as it would irrevocably harm the Mojave National Preserve. The California Department of Fish and Wildlife has expressed grave concerns related to the irreversible harm to wildlife corridors and bighorn sheep. Those who live in Baker are concerned about how the project’s groundwater pumping will impact our community’s water resources.

Finally, our community is concerned that the project’s degradation of national park resources will harm the local economy. According to NPS statistics, in 2015 there were almost 600,000 visitors to the Mojave National Preserve who spent over $33 million and their economic contribution directly and indirectly created 486 jobs throughout the region. We have a vested interest in protecting the Preserve’s resources and ensuring that it continues to be a destination for tourists who love wildlife and wilderness.

The manner in which the Interior Department has recklessly pushed this project forward raises fundamental questions about how they will implement the Desert Renewable Energy Conservation Plan (DRECP).

San Bernardino County Supervisor Lovingood and the rest of our Board of Supervisors can support sound renewable energy policy by rejecting Soda Mountain Solar’s water permit and refusing to certify it. The county should seize this opportunity to take back control from Washington and San Francisco interests on behalf of their desert residents.

Jacob Overson grew up ranching in the California desert and is currently the manager of the Baker Community Services District.

July 24, 2016

Quail Forever needs volunteers to help restore seven guzzlers

The Stoddard Valley guzzler number A-45, serving the Central Mojave Desert, before it was restored by the High Desert chapter of Quail Forever.

By Jim Matthews

The High Desert Chapter of Quail Forever needs a few good men. Or women.

The volunteer organization has received a grant from the Department of Fish and Wildlife to restore seven important wildlife water sources in the Shadow Mountains-El Mirage area northeast of Adelanto during work projects from November through April.

The seven water systems, or guzzlers, are all in total disrepair and will need total rehabilitation, including new water tanks, complete reconstruction of the water-catching aprons, sealing of those aprons, along with fencing and signage. The seven guzzlers, built in the 1950s, have been nearly completely destroyed by vandalism and time. They have had virtually no maintenance since they were built.

But there’s a cravat for the work to move forward. The club needs to recruit some new volunteers to help with the extensive labor on these projects or they might have to pass on the $19,156 grant for materials and forego the restoration project. So the group is asking for volunteers to sign up now for the projects that will take place this coming fall and winter. The group needs to make sure it has enough volunteers by August so it can begin to order the tanks and other materials it will need for the restoration work.

Anyone willing to spend a day or three working on these wildlife drinkers should contact Dave Smith with Quail Forever to get on the work sign-up sheet. His number is 760-617-3291. You can also attend the club’s next meeting, which will be held beginning 6:30 p.m. Tuesday, Aug. 16, at the Apple Valley Gun Club. Volunteers do not need to be members of Quail Forever.

The Stoddard Valley guzzler number A-45 after it was restored by the High Desert chapter of Quail Forever.

July 22, 2016

Mojave Desert at stake in far-reaching federal energy plan

By Carolyn Lochhead
San Francisco Chronicle

In its final months, the Obama administration is racing to complete a far-reaching environmental initiative that could forever alter one of the wildest places left in California.

A giant energy plan for the Mojave Desert attempts to reconcile two contradictory goals: fast-tracking big solar and wind installations across 10 million acres of public lands to reduce carbon emissions and slow climate change, and preserving the region’s natural beauty and ecological integrity.

Solar and wind developers say they will need broad expanses of public land to build their big installations. But scientists say those large-scale developments will permanently scar the desert landscape, destroy native plants and wildlife, and, to top it off, may not do for the environment what they were intended to do.

More than seven years in the making, the joint state-federal Desert Renewable Energy Conservation Plan is driven by President Obama’s promise to install 20,000 megawatts of renewable energy on federal land, and by the state’s ambitious new effort to get half of California utilities’ electricity from renewable sources by 2030.

The administration’s goal is to deliver the equivalent of nearly a quarter of California’s current daily electrical generating capacity. That’s enough to provide power to 3.28 million homes, according to solar industry estimates.

The plan attempts to correct mistakes made early in the Obama administration, when the California desert was opened to large-scale solar development by the Bureau of Land Management, the current plan’s chief architect, without taking into account the broader environmental impacts on the desert. Unlike the National Park Service, whose mission is conservation, the bureau encourages multiple use of public lands, including mining, hunting, recreation, logging, grazing, oil and gas drilling, and renewable energy production.

The bureau’s plan is to set aside 388,000 acres, or more than 600 square miles, of public land in the Mojave for renewable energy development and make another 842,000 acres available if needed. In all, nearly 2,000 square miles of desert could be developed.

The plan also sets aside 5 million acres, or 7,812 square miles, for conservation.

Administration officials are expected to sign off on the plan this summer. After that, only litigation or an act of Congress could prevent it from going forward. While the state is a partner in the effort, only federal land will be developed.

The California desert plan is “an environmental story in the United States that hasn’t received the attention that it’s owed,” said Rebecca Hernandez, an earth systems scientist at UC Davis. It “has really gone under the radar.”

Outside its three national parks at Death Valley, Joshua Tree and the Mojave National Preserve, the desert has been long considered a scrub wasteland. For decades it’s been a repository for sprawling military bases, off-road vehicle playgrounds and booming desert cities, divided by three interstate highways. It’s been mined and grazed for a century and a half. And with a solar intensity that rivals the Sahara, the California desert is now seen as a natural place for renewable energy development.

Despite these human incursions, the desert remains one of the most intact ecosystems in the continental United States.

Scientists have come to understand that the desert is a major carbon sink, whose ancient, deeply rooted plants are a slow-motion machine for drawing carbon from the air and burying large stores of it underground in stable form.

They have shown that deeply rooted desert plants suck huge amounts of carbon from the air and bury it in the earth, where it interacts with soil calcium to form the white desert crusts known as caliche. When these soils and plants are disturbed, this natural process of carbon sequestration is disrupted.

In other words, critics say, building big solar and wind plants on undisturbed desert soils to fight climate change could backfire.

“Globally there’s probably about as much carbon bound up in (desert soil) as there is in the atmosphere,” said soil biologist Michael Allen, director of UC Riverside’s Center for Conservation Biology and a pioneer in studying desert carbon sequestration. “It’s a very large pool.”

Opposition to the administration’s plan also comes from the solar industry. In a last-ditch effort to make changes, industry groups warned in a memo this month that the initiative will make it “impossible” to achieve the administration’s climate goals — including those that came out of last year’s landmark Paris climate accord — because it leaves too little public land available for development.

“California is home to the best solar radiance in the world,” said Shannon Eddy, executive director of the Large-Scale Solar Association, and the Bureau of Land Management “is on the threshold of locking it off against development in perpetuity.”

Environmental groups that support the administration’s plan fear the desert will be under significant threat from solar development without the government’s protection of 5 million acres.

Without such protection, said Kim Delfino, California program director for Defenders of Wildlife, “the public lands will yet again be the place a lot of these large projects go.”

The plan was designed to avoid a repeat of actions taken in the Obama administration’s early days, when it handed $50 billion in subsidies to renewable energy developers as part of the economic stimulus that followed the 2008 crash. The initiative set off a desert land rush by those hoping to cash in on the government money and the vast tracts of available public land, which in turn overwhelmed federal agencies, causing them to approve projects without considering their broader environmental impacts.

“The state and the federal permitting agencies were scrambling to do a good job of analyzing projects in the desert on a site-by-site basis, but without the benefit of a broader plan that would help us really begin to see the big picture of how these different projects might together affect the desert environment,” said Karen Douglas, a member of the California Energy Commission who has taken a leading role for the state in the current plan.

One project that environmentalists point to as an epic mistake is BrightSource Energy’s solar-power farm at Ivanpah (San Bernardino County), built to provide power for Pacific Gas and Electric Co. Constructed just north of the Mojave National Preserve on 6 square miles with $1.6 billion in federal loans and $600,000 in tax credits, the plant has fallen short of its production goals.

Construction turned up many more endangered desert tortoises than expected, and thousands of birds have been incinerated in the light beams that reflected off the plant’s nearly 350,000 mirrors to three 45-story-tall towers. The plant has burned so much natural gas that it has needed to buy carbon credits to comply with the state’s greenhouse gas emissions program. BrightSource, an Oakland firm, says the plant has vastly improved its solar power output this year.

With the new plan, the administration is trying to look at entire landscapes when planning for renewable energy. In a speech in April, Interior Secretary Sally Jewell said the effort would “determine where it makes sense to develop, where it makes sense to protect the natural resources, and where we can accomplish both.”

Barbara Boyle, head of the Sierra Club’s “Beyond Coal” campaign, called the plan “a really important milestone ... that looks at the big picture of development and conservation.”

“We take a very pragmatic view of this, recognizing that some development is going to happen in this desert, and it’s not going to be possible to stop it all,” Boyle said. “We are pushing as hard we possibly can to put it in the least damaging places and to limit how much is done.”

Three factors are driving the push for large-scale solar and wind development: a law passed by the California Legislature last fall requiring half the energy provided by utilities to come from renewable energy sources within 14 years; the Obama administration’s targeting of public lands for such renewables; and Congress’ decision in December to continue a lucrative solar tax credit.

But common sentiment among local environmental activists, business leaders, county officials and scientists living in the desert is that solar should come from panels on the rooftops of homes and businesses where electricity demand is. Putting solar on rooftops would encourage more small-scale advances in renewable energy production and reduce the need for sprawling desert projects, they say.

“If the state of California was really smart, they would do a Google search and look at all of the parking lots and rooftops in Southern California — the Walmarts, the Targets, the humongous shopping center areas,” said Chuck Bell, head of the pro-business Lucerne Valley Economic Development Association, who joined local environment activists to protest the desert plan.

Hernandez, the UC Davis scientist, worked with Stanford University researchers on a study last year that found that rooftop and other solar systems in developed areas “could meet the state of California’s energy consumptive demand three to five times over.”

“When you have so many other places that are already disturbed, especially across the whole of California, it just doesn’t make sense to destroy any remaining natural habitat we still have left intact,” said Hernandez, whose joint study was published in the journal Nature Climate Change.

But Douglas, the California Energy Commission member, insists the state needs large-scale renewable energy to provide reliable electricity, and the desert so far has been instrumental to building the capacity to do that.

“Rooftop is a really important part of the portfolio,” Douglas said. “It will get more important, and it is getting more important, but we have big goals. Large-scale projects, they also get you scale. They are located in areas with very good resources, and when they come online they can increase our renewable energy generation as part of our statewide portfolio very quickly.”

In its planning, the Bureau of Land Management said rooftops are outside of the agency’s authority and that its orders were to evaluate renewable energy projects only “on federally administered land.” Planners focused solely on the desert.

Rex Parris is the Republican mayor of Lancaster (Los Angeles County) in the western Mojave. His focus on renewable energy has resulted in the placement of solar panels over parking lots, on city buildings, schools and even the city’s baseball stadium. He wants to make Lancaster the first city to require solar panels on all new housing. His aim, he said, is twofold: to battle climate change and save money.

He invited a Chinese company to manufacture electric buses in Lancaster, which, under his leadership, also bought the city’s streetlights from Southern California Edison when the utility refused to switch the bulbs to LED lights. Parris is pushing large-scale solar installations on some of Antelope Valley’s 56 square miles of abandoned alfalfa fields.

There’s no reason to bulldoze desert wilderness, the mayor said. Gesturing to his city of 150,000 people, he said, “We have the land here.”

July 10, 2016

Water for Wildlife restores 13 guzzlers in East Mojave Desert

Water for Wildlife volunteers put the finishing touches on guzzler B226 near Flat Top Mountain in February 2016. The large concrete apron on the right collects rainwater, funneling it downhill into the storage tank on the left. Inside the crescent-shaped opening is a wildlife ramp that allows access the water inside. (Photo: Chris S. Ervin) 
By Jim Matthews
Victorville Daily Press

Cliff McDonald and his group of volunteers at Water for Wildlife announced the results of their efforts this winter and spring. In a nutshell, a total of 13 wildlife water sources (guzzlers) were restored and filled in the eastern part of the Mojave Desert over a total of four work weekends.

The volunteers invested over 1,500 hours of effort into the repairs and spent over $9,000 on materials and tools needed to complete the work, or just over an average of $725 per drinker.

Their efforts assure that a wide variety of desert birds, mammals, and even reptiles will have a permanent water supply this summer and fall, and since most desert species still need open water to survive, these man-made drinkers — often called guzzlers — are the only thing between life and death, especially during our ongoing drought.

These guzzlers all have similar features. First, they have an “apron,” which can be made of a variety of materials, that captures rain waters and funnels it into a storage tank (above or under the ground), and then access to the water is provided by a drinker box or simply an opening in the tank and ramp down to the water. Most of the guzzlers in the Mojave were made in the 1950s and 1960s by the Department of Fish and Wildlife (formerly Fish and Game), with little or no maintenance since then. While many still hold water, most are in various states of disrepair. They either hold no water or hold far less water than they could if functioning at their full potential.

Over the 10 years Water for Wildlife volunteers have been working on guzzlers in the East Mojave, they have now restored 75 guzzlers and five springs, and they repaired a number of water tanks and windmills on old cattle systems that now exclusively serve wildlife. This has involved over 7,500 volunteer hours and $50,000 in private funding.

The payoff is that over 300 species of birds and at least 45 mammal species have been documented using these important water sources, which increasingly serve as mitigation for natural water sources lost to development and ground-water pumping across the Mojave Desert.

So where’s the Sierra Club or the Humane Society in supporting this important work, making sure desert wildlife survives during this drought? Where are all the other conservation and environmental groups when it comes to actually doing things on-the-ground to help wildlife?

I’ll tell you where, they are MIA – missing in action.

They spend all their money on making sure you rejoin, fundraising, lobbists and attorneys. None of them spend a dime on actually doing anything that make a difference for wildlife. In fact, the Sierra Club and Center for Biological Diversity have repeatedly fought against guzzler construction and restoration on the basis that they are “unnatural.” Well, human groundwater pumping and housing developments are “unnatural,” and they have led to the drying up of desert springs and seeps for decades. Guzzlers and other man-made water sources act as mitigation for these other losses. But loony fringe won’t hear of that.
Even the new superintendent of the Mojave National Preserve, Todd Suess, where Water for Wildlife would have directed all of its efforts this year, threw up a bunch of bogus reasons to stop guzzler repairs on the Preserve (even after the previous two superintendents endorsed and supported McDonald’s work). So the guzzler repairs were all done on BLM lands out of the Preserve again this year.

If you care about desert wildlife, know that water is the most critical factor in their survival. The only groups assuring that desert water sources are maintained for wildlife are groups like Water for Wildlife. I give McDonald’s group a lot of publicity because it amazes me how many volunteers come from so far to work so hard for nothing. But the High Desert (Apple Valley) and Ridgecrest Quail Forever chapters (and all the other QF chapters, for that matter) do as much work as McDonald’s volunteers in the west Mojave. The Society for the Conservation of Bighorn Sheep focuses on the bigger “guzzler” projects primarily aimed at helping desert bighorns, and the Southern California Chapter of the California Deer Association works on springs, guzzlers, and other waters all across the southern half of the state. Leon Lessica’s Desert Wildlife Unlimited’s desert water work in the Imperial Valley may be the only reason we have a healthy desert burro deer and bighorn population there.

The one thing you need to know about all of these groups is that they usually can muster up enough volunteer manpower for their projects (although more, younger volunteers are always welcome), but they frequently have to scrape and beg enough money together to get the materials they need for this work. Donations are always appreciated. With other so-call conservation or environmental groups you might get a letter or phone call after you join or donate, but the letter or call is to ask for money. With these groups, the letter or call you receive is just offering heartfelt thanks and perhaps information on where you dollars are going to be spent so you can see the results of your donation.

You can find out more information out Water for Wildlife at the group’s new website at You can find all the local Quail Forever, Society for the Conservation of Bighorn Sheep, and California Deer Association chapters with searches on the Internet. If you have trouble, you can e-mail me and I can help you out.

June 13, 2016

Federal-lands ranching: A half-century of decline

How grazing fell from its Western pedestal — and fueled Sagebrush Rebellion.

Tay Wiles and Brooke Warren
High Country News

One of the prime drivers of the 45-year-old Sagebrush Rebellion, the movement to take control of public lands from the federal government, is the sense that rural Western ranchers are bullied by forces beyond their control. That narrative remains compelling, in part because it’s true. Since the 1950s, the ranching industry has been battered by market consolidation, rising operational costs, drought and climate change. Meanwhile, the amount of grazing allowed on federal lands has dramatically fallen. Bureau of Land Management livestock authorizations dropped from over 18 million animal unit months in 1953 to about 8 million in 2014.

Political rhetoric often blames the decline entirely on environmental regulation. But while the 1970s legislative changes have had an impact, there’s a more complex set of forces at work. The market for materials like lamb and wool fell after World War II, for example. Urban development became a factor as the feds sold off land to private buyers. Feedlots proliferated, squeezing smaller ranchers out of the market, and grazing fees rose. Then the advent of range science — which aims to use a coherent scientific method to determine how much grazing the land can sustain — changed everything.

Since then, drought has forced ranchers to sell off animals that their allotments can no longer support. What was then the costliest drought in the nation’s history hit Montana, Idaho and Wyoming particularly hard in the late 1980s, causing $39 billion in damages altogether. The 2002 dry spell, which sparked what was, at the time, one of the biggest fire seasons in Western history, pushed more cattle off the land. The current dry spell has also reduced livestock numbers, particularly in California and Nevada. The effects of drought can linger for years, as ranchers labor to restock, and replacement livestock from other regions struggle, sometimes unsuccessfully, to adapt to a new landscape. And once grazing levels are down, federal agencies historically have “made a habit of not letting them go back up,” says Leisl Carr-Childers, an American West and environmental historian.

BLM and USFS early stocking rates were difficult to measure accurately, as federal policies gave ranchers the incentive to report no more and no fewer animals than they were officially permitted. Read on for a look at 50 years of grazing data, from decades of U.S. Forest Service and BLM reports.

Notes on sourcing and methodology:
  • This data originated from BLM and USFS annual reports.
  • BLM and USFS early stocking rates were difficult to measure accurately, as federal policies gave ranchers the incentive to report no more and no fewer animals than they were officially permitted, which may have differed from actual cattle on the range.
  • Agencies first measured “actually grazed” territory in the ’50s and ’60s by trudging onto rangelands and counting cattle; because of the method’s difficulty, they later began measuring based on billed AUMs.
  • Before 1977, the Forest Service measured by animal-month, so those numbers have been converted to be consistent with animal-unit-month. We followed the agency’s recommendations and multiplied the early numbers by a factor of 1.2. However, this is not an exact conversion.
  • The average weight of a cow has increased since the early 20th century, which means each AUM may have a potentially higher environmental impact.
  • Forest Service data for 1992 and 1999 are unavailable.
This reporting was done with support from Stanford University’s Bill Lane Center for the American West.

June 7, 2016

Forget it, Jake: It's Cadiz

The entrance to the Cadiz property | Photo: Chris Clarke

Emily Green

Commentary: Just when it seems that a water grab with the shorthand name of “Cadiz” can’t get any stranger, it can. In May, an appellate court in Orange County affirmed that a suburban water company in Orange County is the rightful municipal steward for a privately run groundwater mining operation 200 miles away in the Mojave, and that its central purpose of exporting desert water for sale to Southern California cities qualifies as “conservation.”

The court might as well have told us that, yes, it's checked, the wolf in the bonnet is our grandmother.

If there is good news in the down-is-up and up-is-down world of what is now known as the "Cadiz Valley Conservation, Recovery and Storage Project," it’s that late last year, public land managers rejected the speculators’ claim to exemption from federal environmental review. Adding to this, an edgy blog run by hedge fund managers argues the company is on the brink of collapse. Those bloggers say they’re “shorting” Cadiz, market speak for betting on its collapse. In the course of what is now Cadiz’s 22-year-bid for water, not a drop has been exported from the desert, but millions of dollars raised by the company still flowed back to the founder — who can now be found running the racetrack at Santa Anita Park.

My, what sharp teeth he has.

It's fitting, somehow, that for many years the public face of Cadiz was a British bon vivant with a history of hoarding politicians so compulsively that House of Cards might reject the script for a Cadiz episode as too improbable. Various accounts in the Wall Street Journal, New York Times and London Guardian have Keith Brackpool arriving in the US while still in his twenties in 1988 or '89, as head of the North American operations of a British food multinational Albert Fisher PLC. Big title, short tenure. Brackpool quit in 1992 after it was discovered that he had what the Guardian described as a multi-million dollar share in a direct competitor. It wasn't just any competitor, either, but a subsidiary of Polly Peck, Britain's answer to Enron.

It was all completely innocent according to representatives for Fisher, but the CEO who sent Brackpool to the US soon lost his job and the company that had once been a profitable if modest British greengrocery firm became the very poster company for 80s overexpansion. As Fisher reversed trajectory into a decade-long plummet toward bankruptcy, its share price reportedly dropping from roughly $2 to 4 cents, Brackpool turned west, toward California, lured by rumors of an ocean of untapped groundwater roughly 180 miles east of Los Angeles in California’s Mojave Desert. What one of his company's annual reports would soon describe as a mother lode of water lying in a 1,400-square-mile "horseshoe-shaped mountainous catchment area known as the Cadiz Valley" had already attracted speculators, but no one with Brackpool's brio and recklessness.

Sure enough, NASA satellite images did suggest that water briefly pooled in the Cadiz Valley during scant winter rains. Moreover, as was long understood by hydrologists and pretty much anyone familiar with the place, the ground underneath the Mojave can indeed be full of water. Only pressure from desert aquifers keeps the Mojave's seeps and springs flowing. And these startling fonts of water in such a dry place support such an astonishing array of plants and animals that in the early 1990s, almost simultaneously as Brackpool began buying acres in the Cadiz Valley, Senator Dianne Feinstein shepherded the California Desert Protection Act through Congress and to Bill Clinton’s desk. This act created the Mojave National Preserve, granting greater legal protection to the plants and animals very near Brackpool's horseshoe.

Wait a second. He was growing grapes for the prince?

Cadiz's water right was agricultural, so Brackpool’s young company began leasing a small patch of its holdings in the Mojave to citrus and table grape operation. Then, to the amazement of onlookers, it bought up the biggest ag operation in Riverside County. The New York Times described Cadiz's purchase of Sun World International farms and packing operations as a “mouse-swallowing-the-elephant sort of deal.”

The acquisition gave him such unlikely ag-cred that, in 1999, Brackpool was in talks with a Saudi royal, Alwaleed Bin Talal, about Cadiz running a grape farm in Egypt’s Nile delta. Behind lavish showmanship, however, nothing had changed from 1996, when, after the New York Times observed that Cadiz's farm side lost money, Brackpool replied, “The real long-term play is water."

Only the location of the Cadiz Valley, 40 miles from the Colorado River Aqueduct, made a "long play" plausible. To get his water to the canal operated by the Metropolitan Water District of Southern California and carrying Southern California's municipal water supply from the Colorado River to cities such as Los Angeles, Brackpool needed two key things: A pipeline to carry water from his wells and clearance to blend that water with the rest of the water in the aqueduct.

By 2000, environmental impact reviews were in process for what had evolved on the drawing board into plans for The Cadiz Valley Groundwater Storage Project. The pump-and-dump logic of getting water out of the ground and into the So Cal municipal supply was still the heart of the project, but the scope had come to include a savings bank side. Under this, Metropolitan could wheel in any surplus it might have from the Colorado, infiltrate it into Cadiz ground where it would be safe from evaporation, then pull it out when needed. This “aquifer storage and recovery” side was intensely fashionable at the time, and would give the project a high conservation-value sheen as it approached environmental review.

Because Cadiz’s pipeline would cross Department of Interior land, the project triggered not only state but also federal scrutiny. Metropolitan would be the lead agency for the state review, the Bureau of Land Management lead for the federal environmental impact statement. Federal participation meant Cadiz sustainability claims would be reviewed by the best desert hydrologists in the country, the US Geological Survey.

The local water might kill you and there's not enough of it.

Among the USGS observations about Cadiz’s storage and export project as proposed to Metropolitan: Mojave groundwater is prone to high levels of the carcinogen Chromium VI. Beyond a now "Erin Brockovich"-sized question suddenly hanging over the idea that a Cadiz Valley was a good place to store drinking water, the USGS suspected that it could take 15 times longer than Cadiz claimed for desert rains to replenish the groundwater the company pumped.

Pumping too much groundwater too fast might dry out the springs of what, since 1994, had become part of America's revered National Park system. The USGS proffered a pumping plan that would protect the Mojave National Preserve, but this time Metropolitan balked. What if damage from pumping was detected before it had even paid off the tens of millions it would cost to build Brackpool’s pipeline?

This is the juncture when friends with influence should have helped Keith Brackpool. Nobody greased more palms than Cadiz. Gray Davis received hundreds of thousands of dollars and rides in airplanes. Former speaker of the Assembly Antonio Villaraigosa got tens of thousands, and Cadiz never neglected the bottomless wants of San Bernardino County Supervisors. But when Cadiz needed their clout the most, there was the LA Times giving over its premier slot, the Sunday Report, to diagramming his generosity.

In 2002, Metropolitan left Cadiz at the altar.

Cadiz scrambled for new financing as Sun World went bankrupt. So much for growing grapes for the prince. As if to reassure shareholders, Cadiz filed a breach of promise suit against Metropolitan that would cost the water district’s ratepayers another $1 million. A pincer movement attempt to take over Met from within by seating an ally as general manager failed. The “long play” looked played out when up popped Susan Kennedy, a former Public Utilities Commissioner whom Cadiz had paid $10,000 a month for “consulting” the previous year.

Behold Arnold Schwarzenegger's new chief of staff.

With Kennedy’s help and ex-officio endorsements of the project from the governor, Cadiz stock roared back on the NASDAQ.

"I miss that English guy."
-- KPCC radio host Larry Mantle, after interviewing Keith Brackpool's replacement, lawyer Scott Slater, for the first time.

Bruised by yet more LA Times articles dwelling on his cash trails to politicians and even a guilty plea for security trading fraud back in London, Brackpool became a silent chairman. Late in 2008, a disarmingly boyish-looking water lawyer named Scott Slater stepped forward as the face of Cadiz 2.0.

The new, Slater-era strategy: don't argue with the USGS about safe yield estimates. Rather, lock them out. Then repeat unchallenged rent-a-science that Cadiz had paid private consultants to put on charts and graphs. This went, roughly, Cadiz pumps will not harm the basin. Nay, they’ll be good for it, yes good for it! Cadiz will capture water that would otherwise just evaporate!

Moreover, this time around, the company would be running a pipeline to the aqueduct along a railroad easement held by the Arizona & California Railroad and would not need a federal right of way, or to waste taxpayer money on a federal environmental review. Rather than frame it as Cadiz ducking the best expert scrutiny, the company emphasized efficiency. Think of all the money that Cadiz could save the taxpayer by eliminating US Geological Survey review! As for a new state environmental review, there was no getting around it. Cadiz needed a new lead public agency for to get its water into municipal infrastructure. Replacing the former “lead agency” Metropolitan would be tough. If the largest water wholesaler outside of Reclamation thought the project too expensive and fraught, who could replace it?

San Bernardino County was the obvious lead agency. It’s home to the Cadiz Valley and its supervisors were already well lubed with campaign donations by the company. A Cadiz press release even flirted with the notion. Only Slater knows if he passed on the County because he sensed a coming public corruption scandal that would embroil the county assessor and two supes and put a stink over all of California east of Interstate 5. For whatever reason, Slater kept looking.

Huntington Beach-based environment lawyer Debbie Cook thinks she knows how Cadiz ultimately lighted on Santa Margarita Water District, a south Orange County water company serving 150,000 people compared to Metropolitan’s 19 million. It was led by one of Slater’s cronies, she argued in a scathing Voice of OC commentary. With generous help from Slater’s team, the Santa Margarita Water District conducted a new environmental impact report, reviewed the report, then certified the report. And so it became lead agency of a water project 200 miles away with no other qualification to tackle a project of this scope other than its general manager knew Scott Slater. As icing, an Orange County judge affirmed the water district’s standing as lead agency in May.

Put my 401K on No Regrets in the third.

Slater and Cadiz were on a roll until April 2015, when a little known hedge fund blog called Seeking Alpha argued that federal review was inevitable and put a “strong sell” on Cadiz. So began a shareholder lawsuit against Cadiz. Call it ankle biting by a pseudonymous blogger, or insight by the rare, sharp financial analyst who does his or her homework. Either way, six months later, Seeking Alpha was proved right about one thing: The Bureau of Land Management wrote Cadiz rejecting the railroad gambit. The Santa Margarita self-certification under state review would not be enough. The project would have to undergo a federal review if Cadiz wanted to run a pipeline across federal land. Then, last February, the screws tightened yet again when the president declared yet more land around Cadiz to be part of a new Mojave Trails National Monument.

After issuing an indignant barrage of tweets condemning the BLM decision, then marshaling a stage army of outraged congressional reps, Slater is currently circling in protest mode. Time will tell if he can muster some kind of congressional exemption or if he’ll sue the federal government. Whatever he does, again it’s hail Mary time for Cadiz as Seeking Alpha doubled down on its junk rating, calling the company “worth $0 intrinsically.”

If Cadiz goes bankrupt, the shareholders already made poorer by repeated stock dilutions may be hit hard. (Cue to check where any mutual funds might have parked your 401K). But, as far as the directors stand, going bust could scarcely happen to a bunch of richer, better remunerated players. Seeking Alpha calculates that over the years more than $47 million of hundreds of millions raised for the company went to compensating insiders. Brackpool came out of the shadows after parlaying a 2009 appointment by Schwarzenegger to California Horse Racing Board into part ownership and a management post at Santa Anita Park in LA County. He’s now most often found in the sports pages commenting, say, on a recent redesign of the “Chandelier Room.”

One of the major companies buying up Cadiz debt is a Wall Street investment firm Water Asset Management. A ProPublica profile earlier this year found it systematically buying up agricultural water rights around the West to redirect the flows to cities. This is chastening for anyone who imagines that a Cadiz bankruptcy alone would protect the Mojave National Preserve from dewatering by the project, or keep the Cadiz Valley’s Chromium VI out of public drinking water.

“Let's say Cadiz does go bankrupt,” said one of three analysts interviewed on the condition of anonymity for this piece. “What’s to stop Water Asset Management from hiring Scott Slater? Or what's to stop President Trump from appointing Scott Slater Secretary of the Interior?”

Forget it, Jake. It’s Cadiz.

June 6, 2016

Infamous water heist -- and hubris -- reap poison whirlwind

Winds whip dust off the dry 110-square mile Owens Lake bed during a March 2010 storm. The lake, the site of Los Angeles’ infamous water grab at the turn of the 20th century, was home to the country’s worst particle air pollution until extensive control measures were installed. Photo courtesy of Great Basin Unified Air Pollution Control District.

Jeremy P. Jacobs

INYO COUNTY, Calif. -- America's first water war was fought here in the early 1900s, sparked by a Los Angeles sneak attack on the Owens River.

When it ended, the booming metropolis had slurped up the water, Owens Lake was a poisoned salt flat and Owens Valley residents were choking in thick clouds of toxic dust.

The Owens Lake story is a cautionary tale for the West, where cities, farms and endangered fish are battling over water supplies threatened by a warming climate and historic drought. There are at least a half-dozen salt lakes -- including Utah's iconic Great Salt Lake -- being strangled by arid conditions and rising demands for fresh water.

Scientists call the lakes "terminal" because they are found at the end of river systems, but the term could also be a diagnosis.

The lakes are dying.

"They are all threatened in one way or another," said David Herbst, a biologist with the University of California's Sierra Nevada Aquatic Research Laboratory. "It's well taken that climate change and drought -- their coupling -- is going to have a large effect. But diversions for agriculture, for urban uses -- that's the reason that water is taken away."

What's left after the fresh water vanishes is deadly to people and wildlife. Rivers sweep into the lakes sodium and chloride and farm contaminants -- selenium, pesticides, mercury and arsenic. So when fresh water stops flowing, the existing water evaporates, leaving behind salty plains of toxic dust. For public health, the impacts are severe. Imagine dust bowls where you can't see 20 feet in front of you and need a respirator to breathe.

Some of these lakes, like Winnemucca in Nevada and Sevier in Utah, are already gone. Others are in grave danger.

The Great Salt Lake is fouling the air near Utah population centers, yet the state is weighing a new diversion project that would reduce freshwater flows, exposing more of its lake bed and likely increasing toxic dust, local experts say.

The Salton Sea, California's largest lake, will see water flows drop dramatically in the next year under a complicated state-backed agreement that transferred water from the farms near the lake to San Diego. Without dust controls, scientists say, a public health catastrophe looms for 600,000 people who live near the lake -- and for people as far away as Los Angeles or Phoenix who might find themselves in poison dust clouds.

Even Mono Lake, the focus of a landmark California Supreme Court case and one of the West's most protected lakes, appears headed toward crisis.

Michael Rosen of the U.S. Geological Survey said the destruction of the lakes was a blatant disregard of nature.

"Once the water gets there, it is no longer useful for humans," Rosen said. "So if we can divert the water before it becomes unusable, that's a beneficial thing. That's the way it was historically looked at."

Put another way, allowing water to flow into these lakes has not been considered "reasonable and beneficial," a mandate that appears in the state constitutions in the West. There is no law or clear regulatory framework to protect the lakes. Instead, there are a variety of competing interests, industries, agencies, municipalities and states all vying for their increasingly depleted inflows.

By the 1920s, Owens Lake -- which once sprawled over 110 square miles and teemed with wildlife -- had become a dangerous source of air pollution. Winds whipping through the valley at up to 60 miles an hour stirred up dense clouds of cancer-causing dust and salt.

Los Angeles has been forced to spend some $2 billion to engineer a dramatic pollution fix deemed by some here one of the great engineering fixes of the 21st century. The hardscrabble project is a patchwork of dust-smothering techniques, including gravel, flooded ponds and rows of planted vegetation that cover nearly 50 square miles -- an area more than twice the size of Manhattan.

"I think Owens Lake may someday be the ninth Wonder of the World," said Phillip Kiddoo, the head of the Great Basin Unified Air Pollution Control District, which enforces federal air pollution regulations. "Everyone said it can't be done, it's too big a problem. But we're proving everyone wrong."

Owens Lake brings into sharp relief the ramifications of letting lakes go dry. It also underscores what it takes to fix a lake's air pollution problems, and managers from lakes around the world are looking to Owens Lake for solutions.

Without greater protections, Herbst said, these lakes are "screwed."


Owens Lake, a remnant of a much larger water body that formed during the last ice age, is nestled between the Sierra Nevada and the Inyo Mountains.

With peaks reaching more than 14,000 feet, the mountain ranges form the Owens Valley -- 75 miles long and 10 to 20 miles wide.

The lake is fed by the Owens River, the only major river east of the Sierra Nevada. The Owens begins near Yosemite in Mono County, then heads south more than 100 miles to the lake. In high-water years, the river carries hundreds of thousands of acre-feet of water. An acre-foot is about 326,000 gallons, or around enough for a family of four for a year in Los Angeles.

As the 20th century dawned, the new Los Angeles Department of Water and Power, DWP, led by Chief Engineer William Mulholland discovered the lake.

William Mulholland. - Wikipedia.
Mulholland -- a smart, brash and arrogant Irish immigrant -- had his eyes fixed on using that water to build an empire.

By 1904, DWP concluded it lacked enough water to serve a population that was doubling every four years and was gripped by drought.

What followed was a plot to pipe the Owens River to Los Angeles -- even though the two were separated by more than 200 miles, a mountain range and a desert.

Mulholland would not be deterred.

His department used tricks like flushing all the water from Los Angeles reservoirs into the ocean at night in order to make the drought appear more severe and garner support for a bond measure to fund the project. And his agents shielded their identities, posing as farmers looking to buy land.

The caper became the basis of Roman Polanski's celebrated 1974 film, "Chinatown," and was described in colorful detail in Marc Reisner's 1986 account of Western water management, "Cadillac Desert."

"Los Angeles employed chicanery, subterfuge, spies, bribery, a campaign of divide-and-conquer, and a strategy of lies to get the water it needed," Reisner wrote. "In the end, it mined the valley bone-dry, impoverishing it, while the water made a number of prominent Los Angeleans very, very rich. There are those who would argue that if all of this was legal, then something is the matter with the law."

Mulholland's department bought nearly the entire valley -- more than 300,000 acres -- for groundwater and water rights. By 1913, it had captured all the streams of the Owens River. And within a few years, Owens Lake had dried up.

The aqueduct and pipeline to transport the water to Los Angeles took six years to build across the Mojave Desert. At 223 miles, including more than 50 miles of tunnels, it was the world's longest aqueduct and the largest single water project on Earth.

Owens Valley farmers fought fiercely, using dynamite to blow up large swaths of Mulholland's aqueduct several times in the 1920s.

But by the 1930s, DWP owned about 95 percent of the farmland in the valley and 85 percent of town property.

And still Los Angeles needed more water. By 1970, a second aqueduct was constructed that the city used to begin pumping groundwater, which further dried up the land and water that fed Owens Lake.

Mulholland became a legend.

"[I]nstead of leading his people through the waters to the promised land, he would cleave the desert and lead the promised waters to them," Reisner wrote. "To a thirsty city, he was Moses."

Raining lawsuits

Ted Schade came to Owens Valley to clean up Mulholland's mess.

Schade (pronounced "shady"), a 58-year-old civil engineer with short gray hair, blue eyes and a love of motorcycles, grew up in Southern California and frequently camped in the eastern Sierra as a child.

After a trip in the Owens Valley with his wife, he picked up a local newspaper with a job ad seeking an engineer to study "fugitive dust."

"I thought fugitive dust was the dust that escaped convicts made," Schade joked.

The posting was the beginning of the Great Basin Unified Air Pollution Control District's attempt to tackle the nation's worst dust pollution. Since the lake bed dried up in the 1920s, nothing had been done to control salt and other coarse particles that are picked up by the valley's strong winds -- despite numerous complaints from locals suffering from respiratory ailments.

The tide began turning in Owens Valley's favor in the late 1970s when the military got involved, Schade said.

Just south of Owens Lake, the Naval Air Weapons Station at China Lake is the Navy's largest test facility for missiles and other weapons. Tests there require specialized cameras -- and clear views. So the Navy had grown weary of canceling tests in frequent dust storms.

And then Congress acted. In 1987 and 1990, lawmakers amended the Clean Air Act to address dust. The landmark 1990 amendments classified coarse particles as a hazardous air pollutant, specifically citing pollution at Owens Lake.

That, Schade said, "gave us our marching orders."

The air district prepared a state implementation plan for U.S. EPA that required DWP to control the dust by 2001.

DWP refused. The department is a formidable foe -- the nation's largest water and power utility, with 8,800 employees and serving more than 3.9 million people in an area of nearly 470 square miles. It sells $1.1 billion per year in water and another $3.3 billion in electricity.

The politically connected and well-heeled department flexed its legal muscle.

Schade's first break came because DWP was headed in the late 1990s by S. David Freeman, an engineer who helped establish EPA under President Nixon and led the Tennessee Valley Authority under President Carter and who remains generally held in high regard by the environmental community.

Freeman, Schade said, recognized DWP was responsible for the dust that in 1998 -- when EPA ordered the department to control the pollution -- was more than 100 times beyond the federal standard for coarse particulates.

So DWP agreed to invest in fixing the lake bed, but Freeman insisted the air district would not order how to do it, or mandate that huge swaths of the lake be cleaned up at once. It was hard to tell how much of the lake was emitting dust, he said, so by installing dust controls piece by piece, DWP could control the dust without having to cover the entire lake bed.

From the beginning, the air district believed it would take dust controls on about 45 square miles of the lake bed -- nearly half the lake bottom. But it gave DWP three options for dust control: apply water, gravel or plant vegetation. In 2001, the air district began flooding 10 square miles in the northeast part of the former lake.

The effort failed to bring the area into attainment with federal standards, so Schade ordered more gravel coverage. He then ordered more. And still more.

In 2011, the last additional requirement was ordered, but DWP balked and drew a line in the dust.

Then the lawsuits began.

"They pulled out all the stops," Schade said. "They sued us on everything they could sue us on."

At one point, there were at least a dozen lawsuits flying.

Burying the hatchet

How did an air district that operates with a skeleton staff working out of an abandoned motel afford to fight all the lawsuits and public relations assaults, while simultaneously monitoring one of the most complicated air pollution problems in the country?


The political pendulum had begun to swing away from DWP and toward the air cleanup.

In 1983, the California Legislature passed Senate Bill 270, which forced DWP to pay all "reasonable" costs for mitigating the dust at Owens Lake. The language was part of a compromise in which the air district could not require DWP to put water on the lake, affect its water rights or cut off all water flowing to Los Angeles.

As the district took more aggressive steps to tackle pollution -- there are now some 200 air monitors of some sort on the lake -- DWP had to foot the bill.

Then, in 1998, a court applied the same principle to attorneys' fees. The air district hired the best environmental lawyers in the state, and a court held that was "reasonable" under S.B. 270 because DWP also had a top-notch legal team.

So the water department was forced to fund both sides of its legal war.

"We just sent them the bill and they had to pay us," Schade said.

In 2013, DWP's will began to crack when Eric Garcetti (D) was elected Los Angeles mayor and Michael Feuer (D) was elected city attorney. Both had strong environmental credentials, and Garcetti appointed commissioners to DWP's board with environmental backgrounds, including former U.S. Rep. Mel Levine (D) and attorney William Funderburk. They all expressed an interest in getting past the contentious litigation.

The district reached a settlement with Schade in October 2014 that required dust controls on 48.6 square miles, an area that is largely already in place today. There is also another 10 percent of the area -- 4.8 square miles -- set aside as a contingency that the air district can order and DWP can't dispute.

Schade said it appears the 48.6 square miles is going to be enough to bring the lake into Clean Air Act attainment. The dust is more than 90 percent controlled, and DWP will continue to divert large amounts of water to Owens Valley in the future. It is planning to keep 158,400 acre-feet of Owens River water in the valley in the next year, including 65,000 acre-feet specifically for dust mitigation and another 8,000 acre-feet for recreation and wildlife.

Those commitments to the valley are locked into law. DWP will likely keep more water in the valley in the next year than it will export to Los Angeles, 114,000 acre-feet -- more than San Francisco uses in a year. During the height of the drought last year, all the water flowing down the aqueduct at one point was diverted to Owens Lake; none went on to Los Angeles.

Schade retired last year after the settlement was put into place.

"When the bad guys are vanquished, the sheriff gets on the train and rides out of town," Schade said, half joking.

Last November, Schade gathered with DWP and air district officials on the lake bed. They dug a hole and buried legal documents and mementos from the 25-year fight, including, of course, a hatchet.

For the birds

Spend some time at Owens Lake and you'll hear people talk about "unintended consequences."

Along with the original dust pollution, there were unexpected problems when DWP in 2001 began flooding miles of the lake bed in response to the air district's first mitigation order.

Owens Lake dust control areas.
DWP chose flooding because it was simple and the most cost-effective. It was a matter of building a large earthen berm and turning on the water, which the department already owned.

Almost immediately, the birds that had abandoned Owens Lake when it dried up returned. Because the lake bed itself is state-owned and protected by California's public trust laws for wildlife, DWP was required to safeguard birds landing in an enormous construction zone. Some of the birds were rare species, like the snowy plover.

"We've created all this habitat, and it was completely inadvertent," said Jeff Nordin, a DWP watershed resources supervisor, on a recent lake tour. "It was, 'Let's control dust the quickest and easiest way. Let's put water out there.'"

Nordin, 36, grew up in the Los Angeles area and now leads DWP's mitigation efforts from a biological and ecological perspective.

The Audubon Society also swooped in and began working with Nordin to create a master plan for how to turn the lake's mitigation tracts -- called "cells" or "dust control areas" -- into habitat for a variety of bird species.

"We didn't want this place to be paved over," Audubon's Andrea Jones said.

The process could take another 10 years, and DWP may spend another billion dollars on it. The goals are to conserve water, maintain dust control and build bird habitat. That includes increasing public access to the lake for bird-watchers and making the lake more visually appealing.

To that end, last month DWP unveiled a series of trails sought to entice visitors and, in particular, birders. The main attraction is a gazebo-type kiosk with wings reminiscent of a snowy plover's and landscape architecture meant to evoke the white caps of waves. It can be reached by turning off the highway visitors would traverse driving from Death Valley to Yosemite. DWP spent $4.6 million on the project.

Nordin said the goal is to gradually convert the dust control areas that don't provide good habitat into ones that attract birds. That includes varied ponds with islands and other vegetation.

Herbst, the University of California biologist, said the new plan provides an interesting opportunity.

Because of the control DWP has over these different cells -- their shape, salinity level, depth, etc. -- it can create a "mosaic of different habitats," he said. "All these different types of habitats for all different kinds of birds."

That can include deepwater ponds for some bird species, as well as shallow ponds for others that are ideal for growing the algae at the bottom of the ecosystem's food chain.

Herbst said he is skeptical that DWP can accomplish these goals while still cutting back on water use, as it plans to do, but the potential is there to create an important foraging ground for a wide variety of birds.

"It will just draw in birds because of the food if the salinity is at the right level," Herbst said.

'Scared to death'

But controversies aren't over. The Paiute tribe, whose reservation is just north of the lake, is critical of the trails and mitigation projects along the shoreline that are near ancient burial sites and other cultural artifacts.

Kathy Bancroft, 61, a Paiute community leader who has suffered breathing problems her entire life, said she is primarily concerned about preserving their sacred grounds around the lake.

She criticized DWP's projects for their "highly engineered" feel. Nothing looks natural or as it looked for her ancestors, she said, and she referred to each dust control area as another "Band-Aid." She said there are more natural ways to control dust.

"It's not like you would have to continually fill it up," she said. "You'd fill it up and then the vegetation would start growing on the sides. Then if you gradually drained it down, the vegetation would follow it. Things like that. But nobody thinks like that. They are just putting these Band-Aids on."

But DWP's Nordin said he's optimistic that since the settlement in 2014, the local animosity will shrivel. He said the master plan, which will take 10 years to implement, is a new phase for the lake.

"There's been a lot of ideas that DWP caused this mess, and there are some punitive aspects to it," Nordin said. "We are trying to get to where we are moving forward with all stakeholders collaboratively to meet all of their goals."

DWP will be working at Owens Lake in perpetuity, managing wildlife habitat and dust controls.

Officials overseeing water management in the West are looking to Owens Lake in anticipation of what they'll face in their own areas. Schade, the former air district control officer, however, warns that the Owens Lake cleanup was probably easier than others -- notably, the Salton Sea in Southern California near Palm Desert.

More people live near the Salton Sea, which is more than three times the size of Owens Lake -- nearly 350 square miles.

The Salton is already shrinking, and the amount of water reaching the lake will slow dramatically in the next year. By some estimates, 26,000 acres of the Salton Sea's lake bed will be exposed by 2020. At this point, there are only 2,000 acres of planned dust-control and habitat projects scheduled to be completed by that year.

Schade, who visited the Salton Sea while he was working on Owens Lake, sees trouble ahead.

"I took a look at it, and I said, 'Oh, my God.' Looking down at the soil between my feet, it looked exactly like Owens Lake. And I know what happened when Owens Lake disappeared," Schade said.

"I'm scared to death."