July 14, 2017

Rescind new monuments


Letters to the Editor

By Jim Bagley, Twentynine Palms
Hi-Desert Star


If I had told you 40 years ago that Joshua Tree National Monument would start charging fees to let you in, it would cost you $25 just to visit, and if you had an annual pass the Park Service would demand you show a valid photo ID to use it like some totalitarian country demanding “papers” from you to enter, you would’ve said that’s an outrageous concept. But in 2017 that is exactly the reality of where we are.

Most of the monument has been converted into wilderness, numerous roads open during my lifetime have all been closed, every road now has a lockable gate and any new lands that have added to the now “park” don’t include any new campgrounds or facilities, it just added more closed areas made inaccessible to historic, sensible public access.

Now we have the Mojave Trails National Monument and all the other political monuments across America that President Obama rushed to create before his administration was out of office. How is implementing a one-sided mandate without open participation and bipartisan consensus reflecting the fairness of the American character Mr. Obama so copiously lectured us about? The zealous environmentalist who called upon Obama to use his power to cut to the public out of any longterm management policies cheered him on and boisterously celebrated having their own way.

President Trump is now taking the initiative to include everybody in the discussion about our public lands by asking for a review and direct public input on all recent large-scale Antiquities Act orders. What a revolutionary concept, actually asking for public input instead dictating one party vision with executive action.

The same people who fought to cut the public out of the discussion and off the public lands are crying foul and organizing protests against the review. Wow, how shocking the elitists are self-righteously offended that other people (undoubtedly the deplorables) with another point of view should be heard.

The Secretary of the Interior should recommend these politically created monuments be rescinded in the interest of the highest and best use of our American public lands. We should have an inclusive honest, open discussion about the best long-range management for the Mojave Desert. Let’s include a re-examination of the political wilderness areas that were closed under the fervent parochial effort in 1994 of the California Desert Protection Act. If recreation as an economic goal is a part of the monument strategy, we should restore reasonable access to closed historic roads and campsites for tourism and let the locals enjoy these special places again.

Let’s start with absolute transparency. The folks who created the maps for the Obama monuments excluding the public should clearly identify themselves. Take ownership of your agenda and disclose to the public exactly who had influence in Obama administration. I want to have a say in what happens too! Obama did not ask for public participation.

If making “monuments for everyone” is truly the goal, then everyone should be included cooperatively in the formation of public lands policy. President Obama’s misuse of the Antiquities Act to exclude the public from an open, transparent process to make decisions on the American landscape is offensive. If there is legitimate widespread support for the monuments, why not the let the public democratic process work and send any new land use designations to Congress and get bipartisan consensus?

I have been locked out of too many wonderful places once open to everyone by intolerant, discriminatory, partisan land use policies. In the future I do not want to be forced to pay a government fee to visit Amboy, just because it is in one of Obama’s monuments.

July 13, 2017

L.A. took their water and land a century ago. Now the Owens Valley is fighting back

The Los Angeles Aqueduct, which transports water from the Owens Valley to Los Angeles, was built in the early 1900s. (Los Angeles Times)

By Louis Sahagun
Los Angeles Times


BISHOP, CALIF. -- A century ago, agents from Los Angeles converged on the Owens Valley on a secret mission.

They figured out who owned water rights in the lush valley and began quietly purchasing land, posing as ranchers and farmers.

Soon, residents of the Eastern Sierra realized much of the water rights were now owned by Los Angeles interests. L.A. proceeded to drain the valley, taking the water via a great aqueduct to fuel the metropolis’ explosive growth.

This scheme became an essential piece of California history and the subject of the classic 1974 film “Chinatown.” In the Owens Valley, it is still known as the original sin that sparked decades of hatred for Los Angeles as the valley dried up and ranchers and farmers struggled to make a living.

But now, the Owens Valley is trying to rectify this dark moment in its history.

Officials have launched eminent domain proceedings in an effort to take property acquired by Los Angeles in the early 1900s.

Owens Valley wants to reclaim its history

It is the first time Inyo County has used eminent domain rules against the Los Angeles Department of Water and Power, which owns 25% of the Owens Valley floor, officials said Wednesday.

Unlike previous battles with the DWP that focused on the environmental and economic damage caused by L.A.'s pumping of local water supplies, the county seeks to pay fair market value for property and water rights needed for landfills, parks, commerce and ranchlands along a 112-mile stretch of Highway 395 east of the Sierra Nevada.

“We’re using a hammer the DWP has never seen before in Owens Valley,” Inyo County Supervisor Rick Pucci said. “Our goal is the future health and safety of our communities.”

The move comes after years of efforts by Los Angeles to make amends for taking the region’s land and water. In 2013, for instance, the city agreed to fast-track measures to control toxic dust storms that have blown across the eastern Sierra Nevada since L.A. opened the aqueduct a century ago that drained Owens Lake.

As a gesture of conciliation, the city a year ago erected a $4.6-million monument of granite and sculpted earth that now rises from a dry bed of Owens Lake. It features a public plaza with curved granite walls inspired by the wing shapes of shorebirds. Sculptures of earth and rock have been made to resemble whitecaps like those that graced the lake’s surface before it was transformed into a noxious dust bowl.

L.A. concerns about giving back land


But in Owens Valley, Angelenos bearing gifts have always elicited skepticism, and occasionally sparked eruptions of violence. The aqueduct was dynamited repeatedly after increased pumping exacerbated a drought during the 1920s that laid waste to local farms and businesses.

Inyo County officials see their effort to take back DWP land as an important step in taking back local control.

That worries DWP officials, who acknowledged they were caught off guard by the action.

“This is brand new. It could be a slippery slope and where it would lead us I don’t know,” Marty Adams, chief operating officer at the agency, said. “The county also wants the water rights on certain properties, which could have a cascading effect. We’re very concerned about that.”

The Inyo County Board of Supervisors directed its staff to study the use of eminent domain after the DWP a year ago proposed a fourfold rent increase of more than $20,000 annually at a landfill in Bishop operated by the county on land it has leased from the DWP for decades, Rick Benson, assistant county administrator, said.

The proposed lease included a clause allowing the DWP to terminate the agreement for any reason with a 180-day notice, he said.

After months of heated negotiations, the county approved the new three-year lease agreement in January because, Benson said: “We had no choice.”

“We’re mandated by the state to provide environmentally sound means of disposal,” he said. “But the cost of abandoning that landfill and building and certifying a new one elsewhere would be astronomical.”

Beyond that, he said, the California Department of Resources, Recycling and Recovery refused to renew an operating permit for the landfill until a new lease was in place on the property.

Valley towns struggling to survive

In March, Inyo County Administrator Kevin Carunchio notified the DWP of the county’s decision to condemn that landfill site and two others in the towns of Independence and Lone Pine. That would set in motion legal proceedings that could lead to its taking ownership from the DWP.

A county appraisal concluded a fair market value for the total 200 acres of $522,000, county officials said. On Monday, the DWP declined that offer, saying it had yet to complete its own appraisals.

Some officials are already raising the possibility of mounting crowd-sourcing campaigns to fund additional acquisitions of DWP land for public benefit.

“The county would obviously like more economic opportunities,” the DWP’s Adams said, “and we support that.”

In the meantime, Owens Valley towns — including Big Pine, Independence, Lone Pine and Olancha — struggle to survive, with most of their developable land and water rights controlled by the DWP.

In 1997, the DWP agreed to relinquish 75 acres in the Owens Valley for residential and commercial uses, and the county amended its General Plan to ensure that land exchanges did not result in a net loss of tax base or revenues. Since then, county officials say, lots on only a fraction of that acreage have changed hands because the DWP has tended to set minimum bids far above market value.

In 2009, a group of Owens Valley residents sent a petition to then-Los Angeles Mayor Antonio Villaraigosa and the Los Angeles City Council urging them to force the DWP to compensate for the loss of private land it planned to buy in the region by releasing an equal amount of its own holdings elsewhere. The city never responded, according to activists who helped write the petition.

The DWP has spent more than $1 billion to comply with a 1997 agreement with the Great Basin Unified Air Pollution Control District to combat the powder-fine dust from the dry 110-square-mile Owens Lake bed.

Separately, after decades of political bickering and a bruising court fight, the DWP directed water back into a 62-mile-long stretch of the Lower Owens River that had been left essentially dry after its flows of Sierra snowmelt were diverted to the Los Angeles Aqueduct. But it later balked at removing thick stands of reeds that swiftly choked the renewed river.

The DWP caused an uproar during the drought in 2015 when it gave ranchers 48 hours’ notice of its intention to reduce their irrigation water from the usual 49,000 acre-feet a year to 20,500 acre-feet a year. The agency abandoned the deadline after Inyo County threatened to seek an injunction to stop what it claimed was a violation of long-term water agreements that would devastate the local economy.

Some itching for a fight with L.A.


Farming and ranching generate $20 million a year in rural Inyo County, second only to tourism, officials said.

Jenifer Castaneda, a Lone Pine real estate broker and community activist, had one word to say about the county’s use of eminent domain: “Awesome.”

Castaneda said she only hopes local leaders are ready for a long fight and that they don’t “cave when Los Angeles dangles some kind of big fat carrot in front of their noses."

July 12, 2017

Rep. Cook signs support of national monument reduction


By Charity Lindsey
Victorville Daily Press


Republican Congressman Paul Cook recently signed a letter to the Department of the Interior recommending the reduction of some national monuments, despite nonprofit efforts to preserve their boundaries and designations.

In a June 30 letter to DOI Secretary Zinke signed by Cook and 16 other members of congress from western states, lawmakers claim that the “misuse of this outdated 1906 Act has jeopardized the daily activities, livelihoods and traditions of local communities,” including energy development, wildfire prevention efforts and recreational activities like hunting and fishing.

The letter provides an analysis of the 27 monuments currently under the DOI’s review, recommending a reduction of the Mojave Trails National Monument and the San Gabriel Mountains National Monument, much to the discontent of the Mojave Desert Land Trust (MDLT), whose representatives claim Cook “has not communicated with his constituents” about the Executive Order.

“It is outrageous that Rep. Cook would go behind the backs of his constituents to argue that one of our Mojave Monuments be diminished,” MDLT Executive Director Danielle Segura said. “The Mojave Desert Land Trust has invested in this landscape for over a decade, and worked alongside many diverse local groups, to create this monument. Rep. Cook couldn’t even wait until the public had commented before trying to strip protections on land important to the local community.”

But in a statement to the Daily Press Tuesday, Cook said that as a government official, “I don’t submit public comments, as this is the domain of the public.”

″Once the letter was submitted, it was published on the Western Caucus website and made available for anyone to view,” Cook said. “To assert that this was done in secret is laughable at best. In fact, my staff sent a link to this letter directly to the staff of the Mojave Desert Land Trust the same day it was sent to Secretary Zinke.”

MDLT has collected more than 1,250 comments focused specifically on the importance of the monuments in the Mojave. The Desert Defenders campaign comment period began May 10, two weeks after the executive order, which impacts four sites affecting San Bernardino County: The San Gabriel Mountains, Mojave Trails, Castle Mountains and Sand to Snow national monuments.

Mojave Trails is located between interstates 15 and 40 and partially surrounds the Mojave National Preserve. While San Gabriel was designated in October 2014, the others were all established in February of last year.

Cook noted that the letter recognized the local support for the Sand to Snow National Monument, which the congress members requested no changes to.

“On the other hand, the former President nearly doubled the total size of the Mojave Trails National Monument from any of the previous proposals,” Cook said. “This was accomplished without any public comment. This letter simply recognizes the illegitimacy of this action and asks that President Trump follow the publicly debated boundaries while rolling back the former President’s overreach.”

The San Bernardino County Board of Supervisors also sent a letter to the Department of the Interior on May 31, stating its position “that any national monument designations should go through the legislative process, rather than by Presidential Proclamation under The Antiquities Act.”

July 6, 2017

Bill would curb massive Cadiz desert water project

Cadiz Inc. plans to pump the Mojave Desert aquifer and transport that water to Southern California communities. (Jay Calderon/The Desert Sun)

By DAVID DANELSKI
The Press-Enterprise


The battle over plans by a Los Angeles company to sell water pumped from aquifers underneath Mojave Desert conservation areas heated up again this week when state legislation was amended to require a new round of state reviews.

The legislation’s new language, by Assemblywoman Laura Friedman, D-Glendale, would stop major pumping until state land and wildlife officials determined that groundwater extractions would not harm wildlife or cultural resources.

The legislation is in response to the Cadiz desert water project that has been prioritized by the Trump administration.

Cadiz officials called the legislation a flawed attempt to further delay the project.

Cadiz wants to pump groundwater from wells on land its owns in the Cadiz Valley that is surrounded by the Mojave Trails National Monument. These wells would draw water from connected aquifers below the Cadiz, Bristol and Fenner valleys that supply springs within the monuments as well as the Mojave National Preserve.

The water would be piped more than 40 miles across federal lands along a railroad right of way to the Colorado River Aqueduct. It would then be ferried to water customers in suburban Southern California.

The project has been staunchly opposed by environmental groups and other desert advocates, including Sen. Dianne Feinstein, D-Calif., who sponsored the California Desert Protection Act of 1994 that created the Mojave National Preserve and protected 69 wilderness areas between the Mexican border and the town of Bishop.

If it passes the Legislature and is signed by Gov. Jerry Brown, the new state law also would be called the California Desert Protection Act.

Contacted by cell phone, Friedman, a first-year legislator, said her aim is to conserve the water below the desert conservation areas that wildlife depends upon.

“This is the water that supports the desert’s ecosystem, and it is vitally important,” she said.

The law would prohibit taking groundwater from a large swath of the Mojave unless the State Lands Commission, working with the state Department of Fish and Wildlife, finds that pumping “will not adversely affect the natural or cultural resources of those federal and state lands,” the bill says.

Friedman said the Cadiz project could go forward under the law if the new state reviews find it does no harm.

The Cadiz company issued a statement Thursday, July 6, that contends the legislation is designed “to further delay the Cadiz Water Project” by using a “gut and amend” legislative process, which is “universally condemned.” (The original bill, AB 1000, pertained to water meter standards.)

The company’s statement said the project was previously reviewed under state environmental disclosure laws and “found to have no adverse impacts on the environment.” Those reviews were done about 17 years ago.

The Cadiz project would “create a safe, sustainable water supply for 400,000 people,” as well as about “$1 billion economic activity and close to 6,000 jobs,” the company statement added.

The Santa Margarita Water District in southern Orange County plans to buy between 5,000 to 10,000 acre-feet a year, said district spokesman Jim Leach. In all, the project would pump as much as 50,000 acre-feet a year, depending on how the water tables are affected by the extraction, he said.

“We are really disappointed,” Leach said. “We see this legislation as a roadblock to delay the project.”

But Feinstein and other critics maintain the Cadiz project is unsustainable.

In May, the senator released a letter from the U.S. Geological Survey that said a 2000 analysis by the agency found that the Cadiz, Bristol and Fenner basins naturally recharged water at rates of 2,000 to 10,000 acre-feet a year — just a fraction the rate water would be pumped out of these basins.

The Trump administration has made moves favorable to the project. In April, it rescinded a 2014 policy directive that was used to find in 2015 that Cadiz needed to obtain a federal right of way permit and thus had to complete comprehensive environmental studies before it could build a water pipeline in the railroad right of way.

The Trump transition team also put Cadiz on a list of priority projects.

“If the federal government is not going to do these environmental reviews, the state has a responsibility to do them,” Friedman said.

It's magical legal thinking to say Trump can't reverse Obama's national monuments

The northernmost boundary of the proposed Bears Ears region in Utah on May 23, 2016. President Donald Trump signed an executive order on April 26 directing his interior secretary to review the designation of dozens of national monuments on federal lands. (Francisco Kjolseth / Associated Press)

Opinion-Editorial

By Todd Gaziano and John Yoo
Los Angeles Times


Suppose President Trump declared much of California, Nevada and Oregon — states that just happened to vote against him — off-limits to economic development and recreational use. Suppose he barred all mining, grazing, agriculture and even camping from these states’ federal lands (roughly 46% of California, 85% of Nevada and 53% of Oregon) under a law to preserve national monuments of scientific and historical interest.

According to some environmentalists and legal scholars, we would have to live with this result. They believe a president can permanently designate federal land as a monument and restrict its uses — even if we’re talking about millions of acres (138 million acres in the example above), far removed from any real historical or scientific significance, and over the objections of the states involved.

But a presidential power to create permanent national monuments flies in the face of the plain text of federal law, the conventional relationship between presidents and Congress and historical understandings of executive power. Trump has the right to reverse the national monuments created by previous presidents without an act of Congress, but by the same token, the Constitution creates a check by allowing future presidents to reverse Trump too.

In late April, Trump announced a plan to reconsider the size of recently designated national monuments, principally those that withdrew vast amounts of land in the West and in the oceans near Hawaii and New England from some forms of economic development. His orders sparked a firestorm of criticism from environmentalists and sympathetic public officials, who have argued in these pages that Trump cannot undo a national monument once declared by a past president.

The power to create national monuments derives from the Antiquities Act of 1906. It’s a broad presidential power, although monuments must be limited to the smallest area necessary to preserve landmarks and other objects of interest. Like many federal laws, the Antiquities Act delegates authority to the executive branch but does not address how to undo the use of the power. Those who defend permanent, unchangeable national monuments argue that the act’s silence on reversal means reversal is impossible. But there is no reason to believe that the Antiquities Act can uniquely evade the fundamental principles that apply throughout our government and laws.

Almost every grant of power, by Constitution or statute, implicitly also includes the power of reversal. Congress has no express authority in the Constitution to repeal a law, but it does so by passing new laws. The Supreme Court doesn’t have express authority to overrule a past precedent, but it does so in a later decision. As the federal courts have recognized, the president can fire Cabinet officers or abrogate treaties (both of which require Senate advice and consent), even though the Constitution doesn’t mention it. No Congress, Supreme Court or president can bind their successors from using their branch’s constitutional powers.

The courts have applied the same legal principle of reversal when Congress delegates lawmaking power to the executive branch, as in the Antiquities Act. For example, agencies granted authority to issue regulations also can revoke or modify them, and presidents often repeal executive orders, many of which are based on statutory powers. The courts have never held that the underlying statutory authority once used cannot be revoked.

Indeed, those who claim that the Antiquities Act does not grant a reversal power cannot find a single case in another area of federal law that supports that contention. To override the norm, legislators have to clearly limit reversal powers in the original law; the plain text of the Antiquities Act includes no such limits.

Those who consider monument proclamations sacrosanct place most of their hopes in a cursory legal opinion issued by U.S. Atty. Gen. Homer Cummings in 1938. No court has ever approved of the Cummings opinion. Our research explains the many holes in its reasoning, including Cummings’ mistaken reliance on an 1862 attorney general opinion that interpreted a different law, with utterly different facts, and, in any case, reached a conclusion contrary to Cummings’ position.

In a letter to the Interior Department, California Atty. Gen. Xavier Becerra asserts that Trump cannot legally revoke or reduce six national monuments in California. Besides his reliance on Cummings’ flawed opinion, Becerra’s statutory citations don’t help his case. He primarily cites ambiguous comments made in House committee deliberations related to the Federal Land Policy and Management Act of 1976. But that is a separate statute, on a different subject, that did not alter the text or plain meaning of the Antiquities Act. If that’s the best that California officials have on their side in this debate, they should lose.

Californians and others who want to maintain national monuments without change should focus on the merits of the designations rather than magical legal thinking. No president is likely to significantly disturb a national monument that enjoys strong local support. The public comment period for land-based monuments, including all those in California identified for review, is open until July 10. Comments on marine monuments under review are due by July 26.

Prior presidents acted unilaterally to create or vastly expand several national monuments. It’s simply unrealistic to pretend that acts created by unilateral presidential decrees cannot be undone in the same manner.

Todd Gaziano is the executive director of the Pacific Legal Foundation’s D.C. Center and its senior fellow in constitutional law. John Yoo is a law professor at UC Berkeley and a visiting scholar at the American Enterprise Institute. They are the authors of an AEI paper on national monuments.