Why the BLM’s decision on the Cadiz project was the right one

In this undated file photo provided by the Metropolitan Water District of Southern California, water flows through the Southern California desert in the Metropolitan Water District's Colorado River Aqueduct from the Colorado River to the Los Angeles area. A different water conveyance project by Cadiz continues to meet resistance. (AP Photo)

Guest commentary

By Adell L. Amos and Sam Kalen
San Bernardino County Sun

Officials at the Bureau of Land Management have to make a lot of sensitive decisions. But their recent decision that a 43-mile, 7-foot diameter groundwater pipeline does not further the purpose of an 1875 railroad right-of-way should not be controversial. It is as simple as this — a water pipeline project is something different than a railroad.

Despite tremendous pressure to shoehorn a massive groundwater pipeline into a century-old railroad right-of-way, the BLM made a rational decision that the proposal was not in furtherance of the railroad’s purpose. Scott Slater, president and General Counsel of Cadiz Inc., asserts that BLM should rescind that decision.

Cadiz Inc., a Los-Angeles based company, wants to build a pipeline to carry groundwater from a fragile Mojave Desert aquifer to southern California. It’s the kind of project that calls out for careful and considered decision-making by public officials. The project could have a significant impact on sensitive desert habitat and the interests of tribes, local communities and national parks nearby. In fact, such careful review was completed under state law, though it is now undergoing appeal by project opponents.

If BLM had sided with Cadiz and determined that this new water project furthered a railroad purpose, then the project could proceed without federal environmental reviews, tribal consultations and interagency coordination that would otherwise be required.

Not surprisingly, Cadiz had a profound interest in trying to convince the BLM that its proposal — which is about transporting valuable water to thirsty urban areas in southern California — was actually about advancing the railroad’s purpose.

Ultimately, the BLM made a straightforward and common-sense determination that the water pipeline does not further a railroad purpose. This decision ensures, if the project goes forward, it will be subject to appropriate public review. Instead of criticism, the BLM ought to be commended for its responsible management of public resources in the face of tremendous pressure from private interests.

To move forward now, Cadiz will be asked to do what any private developer on federal public land is asked to do — participate in an open, public process under federal law that evaluates the various impacts of the project. That is not a controversial notion in the least. Developers on public lands, though they might prefer to avoid it, engage in this kind of review all the time.

Many opponents of the Cadiz Project worry that this attempt to locate the project in an existing railroad right-of-way was a clever sleight of hand designed to circumvent an open and public evaluation of the impacts and consequences of this project under federal law. To the extent that these concerns about the impacts are unfounded, the federal review process will bear that out.

Perhaps Cadiz worries that the federal review will shed light on what some believe to be faulty scientific assumptions about the recharge rate of the aquifer, or the irreversible environmental harm that could come from pumping 1-2 million acre feet of precious desert groundwater for 50 years, or the impact to historic, natural and cultural resources including the Mojave National Preserve, the lower 48’s third-largest national park unit. More than a decade ago Cadiz proposed a very similar project and the federal environmental review process revealed many of these concerns. Many of these concerns are also at issue in the appeal challenging the state review process.

In the end, BLM exercised sound professional judgment in a climate where water is becoming increasingly scarce and highly valuable. Some estimates put the price of the water associated with the Cadiz project at $1-2 billion. BLM is not required to advance private interests to achieve maximum profit for their investors. Rather, BLM exists to manage, for multiple and often competing purposes, the public lands consistent with all applicable laws. In choosing this course, the BLM carried out its mandate with integrity toward the process and acted as a responsible steward of the public resources it is entrusted to manage.

Adell L. Amos is Associate Dean for Academic Affairs at the University of Oregon School of Law. She is a former Deputy Solicitor for Land and Water Resources at the Department of Interior.

Sam Kalen is co-director of the Center for Law and Energy Resources in the Rockies at the University of Wyoming School of Law. He is a former Special Assistant for the Solicitor’s Office at the Department of the Interior.

Helicopter crash marks troublesome cattle roundup near Searchlight

Wild, feral, and menacing cattle of the McCullough Range near Searchlight, NV.

By Henry Brean and David Becker
Las Vegas Review-Journal

The wild remnants of one of southern Clark County's last cattle herds are now being cleared from the mountains between Henderson and Searchlight, but the work so far has not gone smoothly.

A crew of cowboys from Utah is gathering stray and feral cows from the McCullough Mountains under a contract with the Nevada Department of Agriculture.

Flint Wright, animal industry administrator for the department, said the operation started Friday and has no scheduled completion date. As of Monday, just 17 cows had been collected.

"They're essentially wild cattle, and it's going to take some time," Wright said.

The roundup hit a major snag Sunday, when a helicopter being used to find and chase cows crashed just off state Route 164 west of Searchlight.

On Tuesday, the wrecked helicopter and its pilot could still be found at a motel in the town 60 miles south of Las Vegas.

Richard Dick of Hutchinson, Kan., said he was hovering about 12 feet off the ground, trying to move a pair of stubborn bulls, when a gust of wind pushed his helicopter into a Joshua tree. The 1962-vintage Bell model 47G ended up on its side in pieces, but he walked away with bumps and bruises.

The pilot said it was his first domestic accident in 17,000 hours of flying, though he crashed three times in Vietnam.

When he climbed out the wreckage Sunday, Dick said, the bulls were just staring at him.

The cattle now being rounded up have roamed the range untended since 2006, when rancher Cal Baird relinquished his federal grazing permit and sold his water rights to the county to preserve habitat for the desert tortoise and other federally protected species.

According to the Bureau of Land Management, Baird moved most of his livestock from the 111,000-acre federal grazing allotment to Arizona, but a few stragglers were left behind.

For the past several years, officials say, those survivors and their unbranded descendants have been damaging springs and menacing people in the mountains and desert between Interstate 15 and U.S. Highway 95 south of the Las Vegas Valley.

BLM spokeswoman Kirsten Cannon said the animals are aggressive and "present a danger to the public recreating in the area."

Wright said: "We've had some complaints from people who were hunting deer and were run off by the cattle."

Baird could not be reached for comment.

Under Nevada law, unbranded stray or feral livestock are considered state property. The BLM has been asking the state to remove the unclaimed cattle from the McCullough Range for several years.

In 2013, the state rounded up and sold off approximately 30 animals, but an unknown number remain. Last year, the BLM counted about 40 unbranded cows spread across two wilderness areas west of Searchlight. Wright guessed there could 100 to 200 feral cows still out there.

He figures it would cost the state as much as $200,000 to try to collect that many animals. The Department of Agriculture has been "trying to get this deal cleaned up for a number of years," but it never seems to have the money or the resources, he said.

The animals are now being rounded up by Sun J Livestock, a ranching operation from Vernal, Utah. Wright said the ranchers aren't being paid directly, but they have plenty of incentive to do a thorough job.

"They get to keep the livestock," he said. "They'll get every cow they can."

Weekend warriors fear Washington land grab could take off-roading off the board

A group of off-roaders and others are attempting to fight a proposed designation of three national monuments in the California desert under the Antiquities Act. (Corva.org)

By Perry Chiaramonte
FoxNews.com

California outdoors enthusiasts fear Washington is poised to put up roadblocks on some of the Golden State's most treasured trails by designating three desert destinations totaling more than 1 million acres national landmarks.

The Obama administration is considering using the federal Antiquities Act to bypass the legislative process at the request of Sen. Dianne Feinstein, whose efforts to have the Mojave Trails and Castle Mountain, both in the Mojave Desert, and a section of the Sonoran Desert named federal sites were repeatedly blocked by Republicans. A White House move could put the land under federal control, which critics say could cut funding for upkeep or even restrict access.

“Bypassing the legislative process using the Antiquities Act would be as disastrous as it is undemocratic, creating winners and losers with the stroke of a pen,” said Rep. Paul Cook, R-Calif., who has sponsored a bill that bears some similarities to Feinstein's, but would ensure off-roading and mining could continue on the land. Cook’s bill would also allow the state to create water projects for wildlife conservation.

“Any time you take away the consensus of the local community they are left with something they did not ask for." - Amy Granat, California Off-Road Vehicle Association

The Mojave Trails lie in the desert of the same name in eastern California and are part of a 140-mile road that stretches from the Colorado River to Mojave River. The Sand to Snow Monument would cover 135,000 acres from the Sonoran Desert floor in Coachella Valley to the peak of Mount San Gorgonio, in the San Bernardino Mountain range. The Castle Mountains lie on the Border of Nevada and California near the famed Joshua Tree region and reach an elevation of 5,543 feet.

While the Obama administration has not said publicly if the Mojave Trails, Sand to Snow and Castle Mountain national monuments will be designated, Feinstein asked the president in August to take the action. The Antiquities Act was signed into law in 1906 by Theodore Roosevelt, and gives the president authority to create national monuments from public lands to protect significant natural, cultural or scientific features. It has been used more than 100 times, including for such landmarks as the Grand Canyon, Mount St. Helen's and a stretch of the Underground Railroad in Maryland. Given that President Obama has invoked the Antiquities Act to name 19 sites national monuments since 2009 and as recently as July, Cook and other critics have reason to believe the White House could do so again, especially at the invitation of a powerful Democratic ally.

"We don’t know what’s going to happen,” said Amy Granat, managing director of the California Off-Road Vehicle Association, which has been fighting the legislative proposals for two years. "More and more of the desert is being taken away from the people. If you look at the entirety of the desert, there has always been a no-win when the Antiquities Act has been put in place.”

Cook supports the designation, but through legislation and on terms that allow current uses to continue. He said a White House decree based on the Antiquities Act “sets in motion a Washington-based management plan" that will ultimately leave the recreational area unfunded - and unkempt.

“ ... the roads and facilities will be left to degrade to a point where public use is unsafe or impossible,” he said. “Anyone who’s read the recent reporting on the newly-created San Gabriel National Monument’s dire situation can attest to this. Use of the Antiquities Act will create more “orphan” monuments like San Gabriel, this time in the heart of the California desert.”

One example of the Antiquities Act not helping to improve an area can be seen at the San Gabriel Mountains, range of mountains located across Los Angeles and San Bernardino counties and separates the City of Angels and the Mojave. It has been just over a year since the White House designated the mountainous region as a National monument but the area has still not received any federal funding. The 970-square-mile region badly needed the funding to combat growing blight in the area, but is still plagued by garbage and vandalism. And with no federal funding in sight, the National Park Service does not have the means for proper upkeep.

Feinstein is not without support in her home state. An Antiquities Act designation for the three landmarks could actually bolster recreational activities, according to the Campaign for the California Desert.

“The point that Rep. Cook and other opponents of the monument designation are missing is that when our shared public lands are protected, it’s for the continued use and benefit of all Americans," the group said in a statement. "It is only when our public lands are sold off or leased by a developer does the public’s access to our public lands becomes restricted.”

Government takes family's land near Area 51

Historic Groom Mine overlooking Area 51

By Glen Meek and Kyle Zuelke
Las Vegas Now

LAS VEGAS -- Private land overlooking the secret base at Area 51 has officially been taken from the owners and transferred to the United States Air Force.

Last month, the U.S. Air Force condemned the Groom Mine property when the family who owns it rejected a government buyout they felt was unjust.

The I-Team broke the story of the family's fight with the government.

The Sheahan family, which until now owned the mine, knew they faced an uphill fight. They also expected the government would probably take the land through eminent domain even though the Sheahan's owned it since Abe Lincoln was in the White House.

Now -- literally with the stroke of a pen -- a federal judge has turned the land over to the U.S. Air Force. The only part of the fight left for the Sheahan family now is compensation and what will happen to the equipment, buildings, even human remains, still at the site.

In the remote central Nevada desert, the Groom mine has been an island of private property surrounded by a vast government buffer zone. The buffer zone is patrolled by security troops to prevent people from getting a look at the secret test base at Groom Lake -- better known as Area 51.

The family who owns the mine overlooking Area 51 has been at odds with the air force, which condemned the property last month, after the family declined a $5.2 million buyout.

"I have a geologist friend who I took out there, who's just a buff, and he said it is literally almost priceless," said Barbara Sheahan, Groom Mine heir. "There is so much there, not only the ore which is in the ground that can be mined, but in all the intrinsic value of what's on the land."

What's on the land includes buildings, mining equipment and the remains of kin who worked the mine since the family acquired it in the 1870s.

There's also the question of indignities suffered by the family from nearby government testing including buildings strafed by military planes and radiation drifting downwind from above ground nuclear shots in 50s and 60s.

"This has been like I said a 60-plus year nothing short of criminal activity on the part of the federal government, the AEC, Black Ops, CIA and you can go on and on," said Joe Sheahan, Groom Mine heir.

On Sept. 16, federal Judge Miranda Du signed the order in the condemnation case giving possession of the Groom Mine property to the United States government. The Sheahan's have asked for a jury trial, but the issues will be limited to how much the air force must pay for the land and the disposition of the equipment and personal property left on the site.

"There's nothing fair, there's nothing anything remotely close to that involved in this process," said Joe Sheahan.

"But there never has been either, so it's nothing new. But we would like to change it at least to get our stuff out and be paid the value," Barbara Sheahan said.

The air force made its final, $5 million offer to the Sheahan family after concluding that the security and safety of defense testing in that area made private land ownership impossible.

It the condemnation case, the air force values the land at only $1.5 million.

The Sheahan's say it's worth much more than that considering the value of the minerals in the mine, the abuses the family has suffered over decades and the land' s historical significance.

Cadiz chief to tackle desert water transfer project roadblock

Scott Slater, president and CEO of Cadiz Inc. explains the company's position that they believe the groundwater they would harvest would be lost to evaporation if left to its natural processes. (Jay Calderon/The Desert Sun)

By Jim Steinberg
San Bernardino Sun

LOS ANGELES – The CEO for embattled Cadiz Inc. has a plan to keep alive a controversial project to transfer ancient groundwater in a remote part of San Bernardino County’s Mojave Desert to parts of Orange County and other locations, where it could serve as many as 400,000 people.

In an interview late last week, Cadiz CEO Scott Slater said he would be seeking a review of the decision by the U.S. Bureau of Land Management to reject Cadiz’s proposed use of an 1875 railway right-of-way to build a critical 43-mile pipeline from the Fenner Valley — about 40 miles northeast of Twentynine Palms — to the Colorado River Aqueduct, where it could be delivered to future customers.

If that fails, he will take his battle to court, he said.

“This is pure politics,” said Slater, who is considered by many to be an expert in groundwater law and water policy.

According to a letter from the BLM, the proposed use of the railroad right-of-way for the pipeline is outside the scope of the Arizona and California Railroad’s use of right-of-way grants held under the General Railroad Right-of-Way Act of March 3, 1875.

The letter to Cadiz warns that “proceeding with new activities or continued activities ... without authorization from the BLM could result in the BLM instituting trespass proceedings.”

The ARZC, as the short-line railroad is called, has agreed to let Cadiz use its right-of-way. The railroad moves primarily petroleum across its 190 miles of track.

As part of its water project, Cadiz planned to build fire-suppression and power-generation capabilities for the railroad.

“BLM has determined that the project does not derive or further a railroad purpose,” said the letter signed by James Kenna, California BLM director, who has since retired.

For that reason, in order for the pipeline to proceed along the right-of-way, the BLM must approve that use. And for that to happen, a full federal environmental review must be completed.

Slater called the BLM’s decision an “outrage” that ignores key precedent set forth in a memorandum written in November 2011 by the top attorney for the Department of Interior, which liberalizes the definition of railroad purpose to mean that BLM permission is not needed if the purpose benefits the railroad in some way.

“Every American should be infuriated” at the way the BLM has deliberately ignored the evolution, determined by a top federal lawyer, of a law written more than 100 years before, said Slater, who is author of “California Water Law and Policy,” a two-volume treatise, and has taught law and graduate classes at Pepperdine University, UC Santa Barbara and the University of Western Australia, He also revised the water code for Western Australia.

On the other hand, David Lamfrom, director of the California Desert and Wildlife Program for the National Parks Conservation Service, said: “The Bureau of Land Management’s decision is supported law, policy and common sense and prevents a clear attempt by Cadiz Inc. to create a loophole to avoid federal review.

“The BLM has a responsibility to all Americans to fully understand the impacts this project proposes on public lands, including impacts on our water resources and national parks. This decision opens the door for good science and objective decision-makers to participate.”

Also agreeing with the BLM decision is Sen. Dianne Feinstein, D-Calif.

“I remain concerned the Cadiz project could damage the Mojave Desert beyond repair,” she said in a statement, “and believe the BLM decision to deny the right-of-way is the right one.”

“We need to use water more responsibly, not less, and the Cadiz project is a bad idea,” said Feinstein, who is attempting to include the Cadiz Valley in her proposed Mojave Trails National Monument, one of three proposed for the region.

Rep. Ken Calvert, R-Corona, said, “I have looked at the Cadiz Water Project carefully and I believe it has merit. ... I have concerns about what kind of precedent this sets for railroads across the country and the ability of an agency to deny historically protected property rights.”

Calvert is chairman of the House Interior and Environmental Appropriations Subcommittee.

The project has been approved by the San Bernardino County Board of Supervisors.

When asked about the BLM decision, 1st District Supervisor Robert A. Lovingood said, “The BLM decision will be a roadblock for the project. But this is a matter between the BLM and the company. ...”

For the past eight years, Feinstein has attached a rider to the legislation that funds the Department of the Interior, the umbrella agency for the BLM, that effectively blocks the Cadiz Valley aquifer from being drained, her office said.

Last week, Cadiz said it found out about the BLM decision through a third party.

Before the decision, Cadiz had been saying it and its public agency partner, the Santa Margarita Water District in Orange County, were on track to begin construction of the pipeline this year or early next year.

BLM decision sets back Cadiz plan to sell Mojave groundwater

The Fenner Basin, about half of which lies in the Mojave National Preserve. Cadiz Inc. hopes to sell groundwater from the Mojave Desert to Southern California users. (Katie Falkenberg)

Bettina Boxall
Los Angeles Times

Cadiz Inc.'s plans to sell Mojave Desert groundwater to Southern California communities have hit a major federal roadblock.

In a long-awaited decision, the U.S. Bureau of Land Management says Cadiz cannot use an existing railroad right-of-way for a new water pipeline that would carry supplies from the project's proposed well field to the Colorado River Aqueduct.

By using the railroad right-of-way, Cadiz had hoped to escape federal environmental review of the 43-mile pipeline, one of the project's most expensive components.

But in a letter to Cadiz on Friday, BLM's California director informed the company that it needs U.S. approval for a separate pipeline right-of-way over federal land. That would trigger review under federal environmental law, a potentially lengthy and costly process that could impose new conditions on the project.

Cadiz has acknowledged that over the long term, the project will extract more groundwater than is replenished by nature. And federal scientists have expressed concern that the operation could dry up springs vital to wildlife on the nearby Mojave National Preserve and other public lands.

"The BLM has the responsibility to objectively apply the law using the best available information to determine what rights were conveyed to the railroad under a 19th century law," BLM State Director Jim Kenna said in a statement. "Because the proposed pipeline is not within the rights conveyed to the railroad, a separate BLM authorization is necessary."

In a further complication for Cadiz, project opponent Sen. Dianne Feinstein (D-Calif.) has for years added a rider to the federal budget barring the BLM from spending money on anything related to the groundwater project. A spokesman for Feinstein said the provision "will be in there again." As long as the rider is in effect, the BLM won't have the funds to review a pipeline application.

"I remain concerned the Cadiz project could damage the Mojave Desert beyond repair and believe the BLM decision to deny the right-of-way is the right one," Feinstein said in a statement. "I'll continue to work through the Appropriations Committee to block any additional attempts to draw down this aquifer. We need to use water more responsibly, not less, and the Cadiz project is a bad idea."

In a response sent to the BLM director in Washington, Cadiz President Scott Slater on Monday argued that the agency was misinterpreting an Interior Department solicitor's opinion and should rescind the determination.

"We're disappointed the BLM decided to take a political path," Slater said in an interview. "They wholly ignore the solicitor's opinion."

The decision is technically an "administrative determination" that cannot be appealed. But Slater, a well-known water attorney, said the company would "consider all legal remedies," including a federal lawsuit. "We'll press on," he added.

Cadiz, founded by Keith Brackpool, wants to pump enough groundwater from beneath its land in the Mojave Desert to supply 100,000 homes a year and sell it to urban California at prices that could, over the project's 50-year-life, reap $1 billion to $2 billion in revenue.

The project was approved by San Bernardino County and the company has so far prevailed in environmental lawsuits challenging the proposal under state law. But opponents are appealing those rulings. And desert advocates complain the project will profit by mining groundwater that flows from beneath adjacent public lands.

"The company was trying to exploit what amounts to a loophole to avoid having to go through a more rigorous environmental review," said David Lamfrom, California desert program director for the National Parks Conservation Assn., one of a number of conservation groups fighting the project.

The BLM decision was years in the making. It hinges on a 2011 opinion by the Interior Department solicitor that railroads cannot authorize activities in their federal right-of-ways "that bear no relationship to the construction or operation of a railroad."

Cadiz argued that the water pipeline would further the purpose of the Arizona and California Railroad by providing water for fighting trestle fires and for a planned tourist steam train, as well as create additional access to the rail line.

The BLM found otherwise. "Conveyance of water for public consumption is not a railroad purpose because the activity itself is not necessary for the construction or operation of a railroad, and the origin of the activity itself is a non-railroad purpose," the agency stated in a summary document.