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.

History

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.

Details

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.

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.

‘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.

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)

OPINION
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.

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.

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.

County should say no to Soda Mountain solar

COMMENTARY

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.