November 27, 2015

Dianne Feinstein’s Million-Acre Land Grab Falters

Sen. Dianne Feinstein (D-CA) (J. Scott Applewhite, AP)
by Chriss W. Street
Breitbart News Network

Three months after Breitbart News and others outed Sen. Dianne Feinstein's (D-CA) backdoor effort to freeze development on over one million acres of California dessert by having President Obama declare the area subject to the Antiquities Act of 1906, her efforts are going down in flames as Congressional Republicans are moving to ban the Antiquities designation.

Feinstein’s seven-year quest to convince Congress to sequester over 1,560 square miles of the Mojave Desert into three new national monuments under her proposed "Desert Conservation and Recreation Act” has gone nowhere. Feinstein has argued that the area she wants designated as ‘Mojave Trails, Sand to Snow and Castle Mountains’ is home to mountain lions, the California desert tortoise and bighorn sheep. But the real effort is to ban off-roaders, hunters and miners.

The Senator had faced opposition from an unusual coalition of sustainable energy developers, wilderness advocates, off-road vehicle users, military bases, energy companies and American Indian tribes. By trying to circumvent Congress through artificially tying up the property with a phony search for non-existent artifacts, she has incensed Republicans and upset many Democrats, who worry about future Presidential actions.

U.S. Rep. Paul Cook (R-CA), whose district covers the area Feinstein wants restricted, complained at a Congressional hearing in September that the Antiquities Act “sets in motion a Washington-based management plan that can sharply curtail recreational and economic activities. I’m deeply concerned that outreach efforts to the public have been hasty and inadequate.”

Cook, a retired U.S. Marine Colonel who won a Bronze Star and has two Purple Hearts from combat duty in the Vietnam War, has said that when he heard about Feinstein’s backdoor efforts, his number one goal was to stop Presidential action.

Cook is a staunch military supporter and sits on the powerful Armed Services, Veterans,’ and Foreign Services Committees. The military is a substantial user of the terrain that Feinstein wants walled off. Because the area contains the remnants of General George Patton’s World War II training camps, national security interests have been lobbying Cook to lead the opposition against Feinstein’s Congressional end run.

The California Chamber of Commerce and the California Taxpayers Association both oppose the Antiquities designation and have given Cook perfect 100 percent ratings for each year since he was first elected in 2007. They have lobbied the congressman to oppose any executive order by President Barack Obama regarding the area.

On October 1, 2015, Congressman Cook introduced HR 3668, the California Minerals, Off-Road Recreation, and Conservation Act (CMORCA). He described the bill as “a balanced approach to protecting, managing, and using our desert and forest areas in San Bernardino and Inyo Counties.” But the bill also bans designating the area under the Antiquities Act.

Cook’s bill creates would create a National Monument, but also opens 100,000 acres to mining, and designates Johnson Valley and five more off-highway vehicle areas as “National OHV recreation areas.”

The new designation would ban commercial development in those areas if the Secretary of the Interior determines the development is incompatible with the purpose of the bill. But the bill sets up the opportunity for development to be approved in a future Republican administration.

Although Senator Feinstein has continually claimed that desert residents are “overwhelmingly in favor” of the three monument designations she is pushing for, the City of Twentynine Palms, the City of Banning, and the San Gorgonio Pass Regional Water Alliance quickly signed on as supporters of Rep. Cook’s CMORCA.

Environmentalists have been shocked by the rising support for the CMORCA bill, which they call part of a a “radical anti-public-lands agenda” by House Natural Resources Committee Republicans, representing a “neo-sagebrush rebellion that appears to be emerging in certain Western states.”

The Rep. Cook’s California Minerals, Off-Road Recreation, and Conservation Act is expected to have its first House Natural Resources Committee hearing as early as December 9.

November 21, 2015

Water Agency's Land Purchase Rattles California Farmers

Bart Fisher, farmer and president of the Palo Verde Irrigation District, looks at the Colorado River. The third-generation farmer who was born in Blythe, left 29 percent of his farmland fallow this year. The Metropolitan Water District of Southern California, the nation’s largest distributor of treated drinking water, became the largest landowner in the region including Blythe for good reason: The alfalfa-growing area sits at the top of the legal pecking order to Colorado River water, a lifeline for seven Western states and northern Mexico.(AP Photo/Jae C. Hong)

By Elliot Spagat and Jae Hong
Associated Press

BLYTHE, Calif. (AP) -- The nation's largest distributor of treated drinking water became the largest landowner in a remote California farming region for good reason: The alfalfa-growing area is first in line to get Colorado River water.

Metropolitan Water District of Southern California's play in Palo Verde Valley, along the Arizona line, tapped a deep distrust between farm and city that pervades the West over a river that's a lifeline for seven states and northern Mexico.

Farmers recall how Los Angeles' modern founders built an aqueduct a century ago to bring water hundreds of miles from rural Owens Valley, a story that was fictionally portrayed in Roman Polanski's 1974 film, "Chinatown."

"Are we going to dry up our rural, agricultural communities just to keep Los Angeles, San Francisco and San Diego growing? I think it would be a sad state of affairs," said Bart Fisher, a melon and broccoli farmer who is board president of the Palo Verde Irrigation District.

Metropolitan tried to calm nerves by sending its chairman in September to a public forum in Blythe, 225 miles east of its Los Angeles headquarters. It pledged to honor a 2004 agreement that caps the amount of land it pays farmers to idle at 28 percent of the valley.

That agreement, which expires in 2040, is hailed as a model for farms and cities to cooperate. Metropolitan pays farmers about as much as they would profit to harvest - $771 an acre this year - to bring foregone Colorado River water on its 242-mile aqueduct to 19 million people in the coastal megalopolis it serves.

Palo Verde enjoys California's highest rights to the river, making their immune to drought.

The dynamic changed when Metropolitan paid $256 million in July to nearly double its Palo Verde holdings to 29,000 acres, or about 30 percent of the valley. The agency denied its purchase from Verbena LLC, a company that bought the land several years earlier from the Mormon church, was part of an orchestrated plan.

"It's made the farmers out there nervous that we are the largest owner but there was a strategic opportunity that came up," Metropolitan's general manager Jeffrey Kightlinger said.

Metropolitan stirred similar angst this month in Northern California when its board expressed interest in buying farms on several islands in the Sacramento-San Joaquin River Delta. Its staff said the land could provide water storage and wildlife habitat.

Blythe, a riverside town of about 13,000 people in the Mojave Desert with two state prisons, is an oasis of gas stations, motels and fast-food restaurants on Interstate 10 between Los Angeles and Phoenix. Thomas Blythe staked claim to the river in 1877, beating Southern California cities under a Gold Rush-era doctrine called 'first in time, first in right.'

Los Angeles and its suburbs founded Metropolitan in 1928 to build the remarkably durable Colorado River Aqueduct. Parker Dam and the reservoir it created in Lake Havasu empties into a gray Art Deco-style building with nine pumps that quietly pipe water 300 feet up a steep slope. Teal metal cases that cover the pumps vibrate so little that a nickel placed on top stands on its side.

The water goes uphill through four more pump stations and through tunnels, canals and pipelines before reaching Southern California's coastal plain two days later.

The Colorado's huge man-made reservoirs have made the river an unheralded savior in California's four-year drought. Last year, the river supplied two-thirds of the 1.7 billion gallons of drinking water that Metropolitan delivers daily, up from a third three years earlier.

The river sustains 40 million people and farms 5½ million acres, but white "bathtub rings" lining walls of the nation's largest reservoir in Lake Mead, near Las Vegas, are evidence of shrinking supplies. California took more than it was entitled to until Sunbelt cities like Phoenix and Las Vegas clamored for their share and forced the nation's most populous state to go on a diet in 2003.

"It's really the only supply of water to this otherwise bone-dry region," said Bill Hasencamp, Metropolitan's manager of Colorado River resources.

Metropolitan has diverted up to 118,000 acre feet of water a year from Palo Verde since 2005, enough for about 250,000 households. It paid $3,170 an acre to farmers who committed for 35 years, plus an annual fee for fallowed land. It idles 7 percent to 28 percent of the valley each year, depending on its needs.

Jack Seiler, a grower who volunteered 900 acres, calls the agreement a "poster child" for farms and cities to cooperate but Metropolitan's July purchase of nearly 13,000 acres unsettled him. It gave Metropolitan the largest voting bloc on Palo Verde's water board.

Metropolitan says it won't have to pay someone else to idle the land it now owns and will lease it to farmers, cutting its net cost to about $50 million. It voted for incumbents in a September election to Palo Verde's seven-member board, which includes Seiler.

"I obviously don't know why they bought all this land," Seiler said. "It puts us a little bit at odds."

November 20, 2015

Arkansas phone booth is first of its kind to make National Register of Historic Places

Phone booth historic, hello? Prairie Grove 1959 site put on national list

Prairie Grove teenagers Mason McCourt (left) and Blake Williams use the telephone booth on U.S. 62 in Prairie Grove in April, when the booth was first nominated to the National Register of Historic Places. (NWA Democrat-Gazette file photo)

By Bill Bowden
Arkansas Online

A telephone booth in Prairie Grove has become the first structure of its kind to be listed on the National Register of Historic Places.

The 56-year-old Airlight outdoor booth was selected for nomination in April by the state review board of the Arkansas Historic Preservation Program.

But there was a hang-up.

The National Park Service had reservations about putting a phone booth on the list, said Ralph Wilcox, the National Register/survey coordinator for the state's Historic Preservation Program. It had never been done before.

The "listing blurs the line between a 'place' and an artifact, and it begs the questions about where the line between significance and nostalgia is drawn," according to the response that the National Register sent to Wilcox in July.

Wilcox had to convince the decision-makers that the phone booth is "truly significant."

He resubmitted the nomination, emphasizing that the Airlight "represented a new and advanced design for the telephone booth."

For one thing, it was intended to be outdoors.

Before the Airlight was developed in 1954, telephone booths were made of wood and were inside buildings, Wilcox wrote.

The Airlight's metal-and-glass construction could hold up to the elements, he said. And this booth was strategically placed to serve the motoring public -- on U.S. 62 in front of the Colonial Motel and across from the entrance of Prairie Grove Battlefield State Park.

With that ringing recommendation, the phone booth was officially listed on the National Register on Nov. 9.

"It is my understanding that this is the first and only telephone booth listed on the National Register," Wilcox said Thursday.

Airlight phone booths were once common along highways across America.

According to the nomination form, there were 2.6 million pay phones in the United States by 1996.

But, while pay phones still exist, phone booths have become harder to find since cellular phones took over the market.

The Prairie Grove phone booth is rare in Arkansas because it has a working telephone, Wilcox said. The only other one in the state that he knows of is in Bluffton in Yell County, where there's no cellphone service.

David Parks, president of Prairie Grove Telephone Co., said he's not sure when the company put the phone booth in, but he believes it was around 1959.

Parks said Wilcox notified him Thursday about the National Register listing.

"I'm happy," Parks said. "It's just a little hard to believe. I mean, who would have thought? I'm tickled. I really am."

Parks said there are no plans for a plaque outside the phone booth.

Parks said he thought about removing the phone booth years ago but decided to leave it up for nostalgia's sake. He said it yields $3 to $4 in change per year.

Patrick Andrus, a historian who has been with the National Register for 35 years, told the Arkansas Democrat-Gazette in April that the Prairie Grove submission was the first nomination that he knew of for a telephone booth.

Andrus said the National Register lists five types of properties: buildings, districts, sites, structures and large objects, such as outdoor fountains.

Generally, properties must be at least 50 years old to be listed on the National Register, which is administered by the National Park Service.

Telephone booths were part of American culture throughout the 20th century. Countless villains and heroes ducked into phone booths as movie plots unfolded.

A mild-mannered reporter could enter a phone booth and emerge as Superman. A telephone booth even saved Tippi Hedren from avian attackers in Alfred Hitchcock's 1963 movie The Birds.

Whether the Prairie Grove phone booth has ever served such a purpose isn't known, but it is an "excellent example" of the aluminum-and-glass phone booths that were developed for Bell Telephone System in 1954, according to the National Register nomination form.

It was also nominated for its "importance in the communications history of Prairie Grove."

Airlight phone booths were used for decades. Each booth had a red panel at the top of all four sides, with the word "TELEPHONE" in white letters.

The telephone is in one corner, and the booth has a "bifold door."

"Its aluminum and glass construction was durable enough to stand up to the elements and the amount of glass along with the louvers on the sides allowed its namesake elements -- air and light -- to flood the booth," according to the nomination form. The Airlight booths also had fluorescent overhead lights.

The phone booth is a tourist attraction on U.S. 62 across from Prairie Grove Battlefield State Park.

People often stop at the booth to take pictures.

In June 2014, a motorist driving a 2003 Chevrolet Tahoe dozed off and ran into the Prairie Grove booth, knocking it from its concrete foundation in front of the Colonial Motel.

A public outcry on the city's Facebook page led Parks to fix it. The phone booth was repaired and reinstalled that August.

November 15, 2015

Researchers determine origin of mysterious stone columns along Crowley Lake

A mystery in stone

Robin Wham photographs the columns, which for decades were regarded as little more than curiosities along the eastern shore of the Los Angeles Department of Water and Power's Crowley Lake reservoir. They had been buried and hidden for eons until the reservoir's pounding waves began carving out the softer material at the base of cliffs of pumice and ash. (Brian van der Brug / Los Angeles Times)

by Louis Sahagun
Los Angeles Times

Mammoth Lakes, CA -- The strange pillar-like formation emerged after Crowley Lake reservoir was completed in 1941: stone columns up to 20 feet tall connected by high arches, as if part of an ancient Moorish temple.

They had been buried and hidden for eons until the reservoir's pounding waves began carving out the softer material at the base of cliffs of pumice and ash.

In the ensuing decades, the columns were regarded as little more than curiosities along the eastern shore of the Los Angeles Department of Water and Power reservoir, which is best known as a trout fishing hot spot about 10 miles south of Mammoth Lakes.

But now answers are emerging from a study at UC Berkeley. Researchers have determined that the columns were created by cold water percolating down into — and steam rising up out of — hot volcanic ash spewed by a cataclysmic explosion 760,000 years ago

"These columns are spectacular products of a natural experiment in the physics of hydrothermal convection," Noah Randolph-Flagg, 25, a PhD candidate and lead author of the study, said in an interview.

The blast, 2,000 times larger than the 1980 eruption of Mt. St. Helens, created the Long Valley Caldera, a massive 10-by-2-mile sink that includes the Mammoth Lakes area. It also covered much of the eastern Sierra Nevada range with a coarse volcanic tuff, or ash fall.

Randolph-Flagg said researchers not only discovered the origin of the columns but also learned a great deal about the surrounding landscape. "They have lot to tell us about what the region was like before and after the caldera exploded, and about how volcanoes can change local climate," he said.

The columns began forming as snowmelt seeped into the still hot tuff. The water boiled, creating "evenly spaced convection cells similar to heat pipes," according to the study to be presented next month in San Francisco at an American Geophysical Union meeting, the world's largest conference in geophysical sciences.

From the very first moment I laid eyes on this weird and wondrous place a year ago, I was smitten. It made me go back to school to get a master's degree in geology.
- Robin Wham, 62, a graduate student at Cal State Sacramento
Analyses by X-rays and electronic microscopes of samples of the columns found that tiny spaces in these convection pipes were cemented into place by erosion-resistant minerals.

Randolph-Flagg estimates that as many as 5,000 columns exist within a 2- to 3-square-mile area east of the lake. They appear in clusters, and are diverse in size and shape.

Many are gray, straight as telephone poles and encircled with horizontal cracks about 12 inches apart. Some are reddish-orange in color. Some are bent, or all tilting at the same angle. Still others are half-buried and resemble the fossilized backbones of dinosaurs.

Next year, the Department of Water and Power will begin ferrying students to the site as part of an "effort to further educate the public about these invaluable natural resources," said Amanda Parsons, a spokeswoman for the utility.

Edward W. Hildreth, a research geologist with the U.S. Geological Survey and expert on the history of the Long Valley Caldera and the chemistry of its tuff, welcomes the sudden interest in the columns, which can be reached by boat, on foot or by four-wheel-drive vehicles.

More analysis could help scientists better understand how quickly the columns solidified, and the chemistry and temperatures that produced their spacing, width, height and composition.

Among other researchers investigating the columns is Robin Wham, 62, a graduate student in geology at Cal State Sacramento whose proposed thesis involves mapping their precise locations and comparing their characteristics to those of similar formations in New Mexico and Mexico.

On a recent Sunday, Wham, a retired physical therapist, clambered down a steep trail with a clipboard and GPS device to double-check the coordinates of a grotto filled with columns that she likes to call "my office."

"From the very first moment I laid eyes on this weird and wondrous place a year ago, I was smitten," she said. "It made me go back to school to get a master's degree in geology."

November 9, 2015

Riders on the Storm

Democrats also use appropriations riders, despite recent protest.

Cadiz agricultural well head and pond in the Mojave Desert.

By Jim Swift
The Weekly Standard

A chorus of Democrats and activists are raising hackles about the potential of Republican policy riders being added to a year-end omnibus spending bill. Policy riders (or “limitation riders”) are the opposite of earmarks. Where the now-extinct earmark required money to be used on a certain project, a rider is a paragraph or two in an appropriations bill dictating what the money cannot be used for.

Senate Minority Leader Harry Reid told Roll Call:
"The president, Pelosi, Reid, my entire caucus has agreed to hold hands. We are not going to approve anything that has all these ideological, short-sighted, crazy ideas; to do away with women’s health, to do away with clean air, to attack Dodd-Frank and all these.”
David Goldston, director of government affairs at the environmental group National Resources Defense Council told E & E News in an interview: “on riders there’s going to be a very private, intense tussle between Democrats and Republican leaders on whether spending bills will be used to block environmental progress.”

This, Majority Leader McConnell has said, is the likely outcome: “Both sides will get into a negotiation here at the Appropriations Committee level, and at the end of the day, there will be some riders.” Reid, however, has claimed “We don’t have any riders.”

The sudden about-face on riders from Democrats may seem strange, since in recent years Democrats have repeatedly sought and successfully secured policy riders. But, this is the first appropriations season during the Obama presidency where Republicans control both chambers, so now policy riders are a bad thing, of course.

It remains to be seen how far Democrats will go in their newfound opposition to riders. Just last week, 25 Democratic senators, a majority of that caucus, wrote to the president, urging him to “reject all spending bill riders that would undermine Endangered Species Act protections…” If Reid, Pelosi, and the President insist they’re quitting policy riders cold turkey, there are likely to be some Democratic casualties.

One of the biggest winners (and perhaps hypocrites) has been California senator Dianne Feinstein, who has used her position on the Appropriations Committee to stop a planned water project in her state. Feinstein has fought the project for 15 years.

The project is called the Cadiz Valley Water Conservation, Recovery, and Storage Project. Cadiz owns 34,000 acres of land in the Fenner Valley in San Bernadino County, and below it are millions of acre-feet of water. With an acre-foot clocking in at 326,000 gallons, that’s hundreds of billions of gallons of water. Currently, the project is a combined effort by Cadiz, the Arizona & California Railroad, and a handful of water districts, like the Santa Margarita Water District.

California, as most know, is experiencing severe drought, and the project’s backers say 400,000 Californians could benefit from this water, some of which would otherwise evaporate into the thin desert air. An Environmental Impact Report, required by California’s stringent Environmental Quality Act of 1970 observes the following about the Cadiz project:

"California’s Constitution mandates maximizing the reasonable and beneficial use of water and avoidance of waste. The fundamental purpose of the Project is to save substantial quantities of groundwater that are present wasted and lost to evaporation by natural processes. In the absence of this Project, approximately 3 million acre-feet of groundwater presently held in storage between the proposed wellfield and the Dry Lakes would become saline and evaporate over the next 100 years. By strategically managing groundwater levels, the Project would conserve up to 2 million acre-feet of this water, retrieving it from storage before it is lost to evaporation.”

But even given the water emergency, Feinstein and other opponents of the project aren’t relenting.

The project was tried once before, in the early 2000s, but with a different partner: the Metropolitan Water District of Southern California. Feinstein and two House colleagues wrote to the Bush-era Interior Department to express their concerns about such use of the aquifer and its potential impact on the desert, which Feinstein, as author of the California Desert Protection Act, has taken a special interest in.

The Bush Interior Department signed off on the project, which needed government approval to “wheel” the water across a Bureau of Land Management “right of way” via a 35-mile pipeline. Feinstein and environmental allies convinced the board of the Metropolitan Water District to reject the proposal, which it narrowly did, as the LA Times reported: “with 50.25% of the board’s weighted votes in favor.”

The environmental and anti-development activists at Public Citizen crowed: "Cadiz Water Privatization Project Permanently Stopped!"

Feinstein knew the truth, though: The Cadiz project and its backers weren't going to go quietly, which is why she inserted a policy rider into the FY07 continuing resolution that blocked any funding for the project.

Only when Cadiz revised and revived the project and began to make progress with its new partners, the Santa Margarita Water District and the Arizona & California Railroad, did Feinstein expand the rider— inserted into the FY10 Interior Appropriations Bill, which became law in 2009 — to tighten the noose with this clause:

“Sec. 110. (a) Any proposed new use of the Arizona & California Railroad Company's Right of Way for conveyance of water shall not proceed unless the Secretary of the Interior certifies that the proposed new use is within the scope of the Right of Way.”

The Feinstein rider, due to her clout in Congress, has remained in effect ever since. But now, with the clarion call of the Democratic leaders for Republicans to eschew policy riders in the year-end omnibus bill, the rider is at risk.

At an Appropriations Committee hearing in July, Feinstein complained at length about policy riders. E & E News reported it this way:

"Sen. Dianne Feinstein (D-Calif.) in turn lectured Republicans for using the spending bill to block environmental policies they oppose, arguing that doing so would result in a continuing resolution or omnibus package to fund the federal government come September.”

Feinstein argued that riders were just “a member really trying to impose their will to change a law on this bill, which is essentially a numbers bill of appropriations.” She further denounced the practice writ large:

“You shouldn’t do these on appropriations bills, if you want the appropriation bills to pass in regular order. Instead, there is no change for six years. It’s either a CR or an Omnibus, maybe a few things get stuck into an Omnibus, but what kind of progress is that for the people we serve in this nation? I don’t think it’s any real progress, and so, you’ve got this enormous conflict now between both sides. And I don’t know where this takes us, because we’re not going to let an appropriations bill succeed. What kind of long term sense does it make to continue in this way? So, I want to make a call for some sanity.”

Yet, despite this impassioned plea, her rider to block the Cadiz project had been included in the Interior Appropriations bill.

When asked whether Feinstein’s Cadiz rider would make it into yet another omnibus bill, a GOP aide on the Appropriations Committee responded: “We cannot offer any insight as to the ultimate fate of this provision, but it certainly illustrates that Democrats are plenty capable of using appropriations riders to pursue policy outcomes.”

When Feinstein complained about using policy riders as leverage for Senators to “impose their will to change a law,” she spoke from experience. That’s because her rider preventing the Cadiz project helped do just that.

To get the water to its new partners, Cadiz signed an agreement with the Arizona & California Railroad (ARZC), which has a right-of-way granted pursuant to the General Right-of-Way Act of 1875. This would enable Cadiz to deposit the water into the Colorado River Aqueduct, which services numerous water districts, including that of its new main partner, the Santa Margarita Water District.

In the case of railroads on public land, many rights-of-way are governed by the 1875 act, as is the case here. The 1875 Act is also subject to the interpretation by the courts, and by the legal opinions of the solicitor of the Department of the Interior, which oversees BLM. The solicitor issues “M opinions” that are intended to provide guidance to enforcement of public laws, and one, issued in 1989 (M-36964) effectively gave the green light to the Cadiz.

Back in the 1980s, MCI (a telecom that would later become Verizon), wanted to install fiber optic communications lines on a railroad right-of-way controlled by Southern Pacific Transportation Company. The decision clarified that Southern Pacific did not need to seek BLM’s approval to allow MCI to install the cable because it, even though a commercial venture, was “not inconsistent with railroad operations" because it benefited the railroad's operations.

The prospect of this M-Opinion, which Cadiz and the railroad believe they are in compliance with, horrified Feinstein. After securing the rider in the FY10 Interior Appropriations bill, she trumpeted the achievement in a letter to former Senate colleague and then-Interior Secretary Ken Salazar.

“I write to bring to your attention language included in the FY10 Interior Appropriations bill regarding Cadiz LLC’s proposed use of the Arizona & California Railroad Right-of-Way (ROW) for a water conveyance pipeline in the Mojave Desert. I request that the Department start now to reexamine the previous administration’s position that the proposed pipeline does not require federal authorization.”

Feinstein wrote about a 2005 federal court opinion, Home on the Range v. AT&T Corp., which she claims the court “found that easements under the 1875 General Railroad Right-of-Way Act are limited to uses for railroad purposes, excluding non-rail activities analogous to the water pipeline here.”

The letter’s conclusion reinforced the ask: “I would like to request that the Department now initiate a review of its right-of-way policy regarding this project, as well as the Solicitor’s Opinion it is premised on, rather than waiting until the legislation is ultimately signed into law. It is my hope that by acting now, the Department can resolve the scope of the right-of-way promptly, rather than allowing legal questions and uncertainty to linger.”

Put another way, Feinstein went on record to say she’d hold up the project until BLM changed how it interpreted the law to her liking.

Two years after the letter was sent, the Interior Department did just what she asked, and issued M-37025, an M-Opinion from the Solicitor that withdrew the guidance provided by the 1989 M-Opinion that BLM approval was not required for activity not inconsistent with railroad operations.

The new M-Opinion provided that, in order to be within the scope of the Right-of-Way, “a railroad’s authority to undertake or authorize activities is limited to those activities that derives from or further a railroad purpose…” Only now, each activity “requires a fact specific case-by-case inquiry.”

The new M-Opinion was a setback, but still found that, in the case of MCI, its activity “furthered, at least in part, a railroad purpose…” and even that “…MCI’s line was primarily a commercial trunk line, a portion of its capacity was dedicated to the railroad.” Under the new guidance, Cadiz and the Arizona & California Railroad made their case to BLM as to why the water pipeline not only would further a railroad purpose, but would do so in a way that satisfies the underlying 1875 act itself.

In a 2013 staff memorandum to the Interior secretary, Jim Kenna, the director of the BLM in California, highlighted the design features in the water project that Cadiz and the railroad argued would further railroad purposes:

  • Fire hydrants placed along railroad tracks for fire suppression.
  • Access road to be constructed on leased area for railroad company for maintenance purposes or in case of emergencies such as rail car derailment;
  • Access to 10,000 gallons of water per day for vegetation control, washing rail cars, offices, and other contemplated improvements;
  • Access to power at meters located along the railroad tracks and emergency access to power at any location;
  • Water service for steam powered locomotives, to be used as excursion trains.
  • Right to connect and deliver water to any future water production facilities within the ROW to the pipeline and facilities.

The original 1875 act provides that the right of way is also granted for “ground adjacent to such right of way for station buildings, depots, machine shops, side tracks, turnouts, and water stations…”

The water stations Cadiz would supply are right there in the actual law. However, in a formal letter, BLM disagreed that the pipeline furthers railroad purposes. The letter is sadly comical, a Rube Goldberg exercise in futile bureaucratese.

The planned water suppression system, designed to remotely stop a disastrous trestle fire that could cripple the railroad for weeks?

“Use of water for fire suppression on creosote-treated timber is an uncommon industry practice, with dry sand being the preferred method, and thus the water-based hydrants and sprinklers, and fiber optic telemetry used to operate them do not derive from or further a railroad purpose. A BLM authorization is needed for use of fire suppression facilities along the 43 mile stretch of the ROWs that runs across BLM administered public land.”

The water stations for a steam-based tourism train? “may derive from or further a railroad purpose (emphasis added)…” but “…the excursion train’s prospective use of a small portion of the pipeline’s water does not convert the excursion train, the pipeline, or the water that runs through the pipeline into a legitimate railroad purpose.”

In other words, no, no, and… no: You have to get BLM approval now.

Except, BLM can’t even process an application from Cadiz and the ARZC even if it wanted to, as noted in a BLM memo:

“If a decision is made that the proposed use is not within the scope of the 1875 railroad ROW, such a pipeline would require a FLPMA ROW authorization from the BLM as it crosses BLM-managed lands. However, the processing of such a ROW would be prohibited this year, given the language in the 2012 Consolidated Appropriations Act H.R. 2055 118(b).”

The Cadiz project has bipartisan support in the House, as numerous Democrats and Republicans have written letters of support, and perhaps explains why the House Interior Appropriations bill does not contain the Feinstein rider.

While the BLM has shut the door to Cadiz and the ARZC’s quest to build the pipeline without their approval via an er, novel, interpretation of the law, if Feinstein’s anti-Cadiz rider isn’t included in the year-end omnibus, the project’s backers could apply for formal BLM approval. Other legal recourse, such as a lawsuit challenging BLM’s determination, is still on the table.

The question for Feinstein and Democrats is: How willing are they to part with policy riders on appropriations bills? In the coming weeks, we’ll find out, I guess, because Senator Feinstein’s office did not respond to a request for comment.