Congress moves to control all U.S. water

Jim Kouri
Law Enforcement Examiner

Civil libertarians are warning Americans about the ambitions of federal lawmakers to control all waters within the United States including those on private property, in the latest power grab by politicians in Washington, DC.

According to the American Land Rights Association, the Obama Administration and Congress are attempting to pass the Clean Water Restoration Act of 2009 (S787) that would amend the 1972 Clean Water Act and replace the words "navigable waters" with "waters of the United States."

"The US Constitution's Tenth Amendment automatically reserves power for controlling waters to the states, not to the Oval Office and US Congress," said political strategist Mike Baker.

"This is just one more power grab by out-of-control politicians who only adhere to constitutional law when it suits them," he added.

Section 3, Paragraph 8 stipulates that "this Act will treat, as ‘waters of the United States’, those features that were treated as such pursuant to the regulations of the Environmental Protection Agency and the Corps of Engineers in existence before the dates of the decisions referred to in paragraph (10), including--

(A) all waters which are subject to the ebb and flow of the tide;

(B) all interstate waters, including interstate wetlands;

(C) all other waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds;

(D) all impoundments of waters of the United States;

(E) tributaries of the aforementioned waters;

(F) the territorial seas;

(G) wetlands adjacent to the aforementioned waters."

After being overuled by the U. S. Supreme Court in two recent decisions that the words "navigable waters" in the Clean Water Act limited federal agencies to regulation of navigable waters only, Democrats and liberal Republicans in Congress are striking back.

They are attempting to pass the Clean Water Restoration Act of 2009 (S 787) that would amend the 1972 Clean Water Act and replace the words "navigable waters" with "waters of the United States."

"The bill also defines "waters of the United States" with such breathtaking scope that federal agencies would be required to regulate use of every square inch of the U.S., both public and private," according to the American Land Rights Association.

"Obviously, those behind this legislation have only contempt for the Constitution, limited government and private property rights. To understand what the framers of the Constitution intended, one need only look to their writings and the writings of those from whom they took wisdom and direction," said officials at ALRA.

"This is a terrible bill that would give the Federal government jurisdiction over anything that is wet including seasonal mud flats. This means that the Feds could enter your property and dictate what you can do with bodies of water on your land," said political strategist Mike Baker.

"It also means that the Great Lake States and Provinces could not protect the Great Lakes from being pumped dry to feed the growth of California and the Southwest. In that area, Democrat Senator Russ Feingold has sold out his own state: Wisconsin."

"Senate Bill 787 will change federal jurisdiction over “navigable” water, to give the federal government control over all water everwhere, in municiple reservoirs, and on private lands, and in private wells. This bill ignores state water law authority and the Fifth Amendment of the U.S. Constitution," stated Barbara H. Peterson, a farm lands protection activist.

"If the Feds own the water, then they can do anything they want to with it, and I have to ask permission to get a drink or water my animals," she stated.

SB 3213 to impact access to 32 million acres

The US Senate is considering a bill that could affect your access to 32 million acres of federal land and your rights as a landowner

Senate Bill 3213

By Bob Moffitt
KFBK News

Senate Bill 3213 is an omninibus bill, a compilation of 90 bills. Chuck Kushman is the Executive Director of the American Land Rights Association. He says some are good, but some are a blatant land grab, like the part of the bill that creates the National Landscape Conservation System.

Kushman says the bill also contains language that would give the Army Corps of Engineers the power to tell landowners what they can or cannot do with their property, if there is water of any kind on or underneath that property, which applies to all of us.

Technicality may cut California desert areas from federally protected status

The proposed National Landscape Conservation Act would unify management and funding of designated areas. But it requires 'national' in the area name, excluding some of the state's sensitive areas.

By Janet Wilson, Staff Writer
Los Angeles Times

Congress is considering permanent protection for 26 million acres of beautiful and historic landscapes in the American West, but has quietly excluded millions of acres of California desert.

In a system that would rival the national parks and forests, the National Landscape Conservation Act would unify the management and funding for areas such as the original Pony Express National Historic Trail, Lewis and Clark National Historic Trail, a million acres of Alaskan caribou calving grounds, 38 wild rivers, Utah's Grand Staircase-Escalante National Monument, and a tiny ghost town near the Mexican border.

But more than half of the 10.6 million-acre California Desert Conservation Area, which stretches from the Mexican border to Mono Lake, has been dropped on technical grounds. Because the word "national" isn't in its title, the conservation area doesn't qualify, according to U.S. Bureau of Land Management attorneys.

Environmental watchdogs and some land bureau employees say the California area, created by Congress in 1976, is the cornerstone of the fledgling national system. They say the semantics hide political motives: Utility companies have proposed hundreds of miles of electrical transmission corridors through California's deserts, and off-road vehicle enthusiasts oppose further regulation of the area.

"I don't think this is a technicality at all . . . That's a huge hit to desert conservation in California and the Southwest," said Daniel Patterson, director of the southwest office of Public Employees for Environmental Responsibility, which represents whistle-blowers in government agencies.

The bill does include the King Range National Conservation Area, the Headwaters Forest Reserve, the Santa Rosa and San Jacinto Mountains National Monument, and just under half -- 3.7 million acres -- of the desert conservation area. Not included are more than 6 million acres of desert. Some of the land has been used for mining and off-roading, but much of it remains pristine, wide-open space.

Patterson said that if the bureau's entire California desert system isn't part of the national system, its conservation designation "would be a protection in name only . . . The California BLM will lose funding, they will lose staff, they'll lose what conservation focus they might have."

Afton Canyon
He said the excluded desert lands, including visually stunning and ecologically important areas such as Afton Canyon and Big Morongo Preserve, would be more at risk from proposed transmission-line corridors, among other projects. In addition, he said, "it could be expanded to off-roading, it could be expanded to mining, it could be expanded to land sales for Southern California urban housing sprawl. It's just a loss."

Others were relieved that major portions of the desert would not come under tighter rules.

"I'm worried about the people who own private land (inside the conservation area), the off-highway users, the ranchers, the miners, the loggers . . . the recreation access to people who just like to go collect rocks," said Chuck Cushman, head of the American Land Rights Assn. "When you put an overlay of national park-like regulations over these lands, you just cut off Americans from those lands."

Although staff members for U.S. Rep. Mary Bono (R-Palm Springs) say she is reluctant to amend the House bill to include the California land, Sen. Dianne Feinstein (D-Calif.) said she will push to fix the 7-milllion-acre "glitch" in the Senate version.

In many cases, bureau land is open to multiple uses, including mining, grazing and off-road driving. There are no guided tours and few rangers. Officials said that management approach would remain on the national landscape lands.

"There is hunting. There will be no hotels. You can camp pretty much anywhere you want," said Elena Daly, head of the bureau's program that could win permanent protection from Congress.

She said the program also stresses collaboration with local communities, including "sustainable ranching."

Daniel Pfiefer of Costa Mesa is torn by the proposed legislation. Pfiefer, who had just finished a three-day off-road trip along the ancient Mojave trail this week, said he appreciates the difference between national park and land bureau conservation lands. "We came through some national parks areas. You cannot get off any road at all. You can't even have a ground fire in national parks . . . But the BLM areas are very friendly. They don't want you driving out all over the place, it's a 'tread softly' kind of thing. I'm very happy with the way it is right now."

Although he hates the way rogue off-roaders "trash" pristine areas by cutting illegal paths and dumping garbage, the bill proposed by Congress, he said, makes him nervous.

"As a person that absolutely hates rules and regulations myself, I have such a difficult time with it, because I do so much love the outdoors, and I do so much love going out and Jeeping across the trails.

Mojave River crossing in Afton Canyon
"Being an off-roading enthusiast, it scares me to think that if the federal government starts putting their fingers into it, and start sectioning off any portions of the desert, then closing it off is not far behind."

The National Landscape Conservation System was created in 2000 by outgoing Interior Secretary Bruce Babbitt to pull together and protect hundreds of conservation areas, monuments, wilderness study areas and other "orphans" of the federal bureau. All of the bureau's California desert lands were included. Unlike the proposed law, Babbit's executive order can be rescinded by the current or future Interior secretary.

"A constant threat is that it could be dissolved and dismantled at any point in time, with the many properties truly becoming 'orphans,' " Ian Wilson, spokesman for the nonprofit Sonoran Institute, a Tucson-based environmental policy group, said about California's desert area.

Interior Secretary Dirk Kempthorne supports the bill as written. A broad coalition of more than 70 outdoor sports, environmental, historical preservation and religious groups is pushing for passage of the legislation, which would also establish a line item in the federal budget for annual funding. Currently the program receives $50 million a year.

"I think we are all about to witness the next major conservation system for the United States," said Daly on a recent tour of several program sites, including the Las Cienegas National Conservation Area grasslands that stretch for 48,000 acres outside of Tucson.

It is hard to see the difference on the ground between some of the included and excluded areas. The Las Cienegas area is named for the Hundred Waters creek that flows across the Sonoran desert floor between mountain ranges in the Sky Island region, its willow and cottonwood-lined banks providing shade and forage for 230 bird species. "Oklahoma" and "Red River" were filmed on the sweeping grasslands decades ago, and ranchers and land bureau managers have laboriously ripped out invasive mesquite that is overtaking the grasses.

Five hundred miles to the west, the Mojave River bubbles up out of the parched desert in Afton Canyon, nourishing more than 180 bird species. Hundreds of films, including "Letters From Iwo Jima," and "Kill Bill" were filmed in the desert area.

Daly says it's not her job to tell Congress whether some or all of California's deserts should be included. But she said it's not too late for the omitted lands to be added, if that's what Congress wants.

"The bill is in draft form," she said. "It's not a done deal."

National parks contain private land

By SUSAN GALLAGHER
Associated Press Writer
Las Cruces Sun-News

HELENA, Mont.—The managers of Utah's Zion National Park missed an opportunity when 10 spectacular acres of privately owned land within the park's boundaries came onto the market.

The managers wanted Zion to buy up the property and protect it from further development because of its world-class view of the park's awesome, 3,800-foot red rock cliffs. But the park didn't have the money.

A California couple eventually purchased the land, expanded an old tavern on the site and use it for spiritual retreats.

"Now there's a large structure with lights that people would see as they drive the road," said Zion Superintendent Jock Whitworth.

Within the 84-million-acre national park system are some 5.4 million acres of private parcels, an area nearly as big as New Hampshire. They include wetlands popular for birdwatching at Acadia National Park in Maine, the site of a Civil War hospital at Gettysburg National Military Park in Pennsylvania and Indian cultural sites at Big Bend National Park in Texas.

Many of these parcels have been held for generations by people who owned the land before Congress created the parks.

The Park Service has identified about a third of the private land for acquisition.

"Inholders live in fear they're going
to have land acquisition agents at
their door, trying to force them out."

But in fiscal year 2007, the agency was allocated $24.6 million for buying the property. That is little more than 1 percent of the $2 billion or so the Park Service says would be needed to purchase all the land it wants.

"We ought to be finishing what we started, and we're not doing it," said Paul Pritchard, founder of the National Park Trust, a private organization.

The National Park Service has on its wish list 11,613 tracts encompassing 1.8 million acres. The $24.6 million allocated is down from a 10-year high of nearly $139 million in 1999.

National Park Service spokesman Jeff Olson said the Bush administration has focused more on managing the land it already controls than on acquiring more.

"The dollars have steadily fallen off because we are in deficit, because we are funding a two-front war, because there are a host of other spending priorities that compete," said Alan Front, vice president for the Trust for Public Land.

But he warned that unless the Park Service acquires the private land within the parks' boundaries, "there is a real and pressing threat that inappropriate development will mar the landscape that people are flocking to for respite and retreat."

Chuck Cushman of the American Land Rights Association, formed in 1978 to represent owners of property within parks, said it is just as well the Park Service is short of money.

Inholders, as the property owners inside the parks are known, "live in fear that a change in administration, a new Congress—all of a sudden they're going to have land acquisition agents at their door, trying to force them out," Cushman said.

He said many of the landowners are the third and fourth generations to live there, adding that his own cabin in Yosemite National Park is "the one constant my kids have always had" even though the family moved often.

Park Service Director Mary Bomar has said the agency buys land only from willing sellers.

At Zion, Hank and Mariangela Landau bought the 10 acres coveted by the Park Service in 2005. The land is a 2 1/2-hour drive from Las Vegas, near a site where some of the 1972 Robert Redford movie "Jeremiah Johnson" was filmed.

Landau said he and his wife tried to be environmentally sensitive in remodeling the dilapidated tavern constructed some 40 years ago—a one-story building with light-gray siding—and establishing their retreat, The Center for the True North. Its features include solar power and low-impact lighting.

"We feel good about it because of the way in which we remodeled it," Landau said. "We're not Frank Lloyd Wright, but we did the best we could to try to blend it."

Landau would not disclose what he paid for the property. Whitworth, the park superintendent, said the land was on the market for about $340,000.

Missing an opportunity to buy will not make it any easier the next time. Parks are such desirable areas that the price will probably be higher if a property hits the market again.

In the past few years, the Park Service, on its own or with help from conservationists, bought and demolished the Home Sweet Home Motel at Gettysburg, and purchased an old AT&T communications center at Point Reyes National Seashore in California.

At Glacier National Park in Montana, where deer, elk, moose and wolves roam, Warren Heylman of Spokane, Wash., built a cabin this year on land his grandparents homesteaded before President Taft signed the 1910 bill making Glacier the nation's 10th park. The 130-acre tract had been at the top of Glacier's acquisition list for years.

In July, a helicopter delivered materials for construction of a one-room cabin on the land. Heylman said that the family is exercising its rights and that the land is "not for sale, period."

"We think development of that land is inappropriate," said Brace Hayden, a Park Service official at Glacier. "You can draw your own conclusions about what's best for the American public versus what's best for this family."

In the Mojave Preserve, Emotions Still Run Hot

By Julie Cart
Los Angeles Times Staff Writer

MOJAVE NATIONAL PRESERVE, Calif. — To many, this is a place to hurry through. The austere expanse of scrubby desert and jagged mountains in the care of the National Park Service is more popular as a shortcut between Los Angeles and Las Vegas than it is as a destination.

A recent Park Service survey found that the majority of the 650,000 annual visitors here spend less than three hours before moving on. The survey reflects a hard truth: The 1.6-million-acre preserve is an acquired taste.

As the preserve's 10th anniversary approaches, its proponents celebrate it as a citadel of nature amid an onrushing tide of development, while local residents continue to resent the limits on off-road exploration, hunting, cattle ranching and other economic activities.

About an hour's drive northeast of Barstow, the preserve was established as part of the California Desert Protection Act. The legislation set aside more land than any previous conservation law in the lower 48 states. It expanded Joshua Tree and Death Valley national monuments, conferring national park status on each, and it created new wilderness in areas managed by the U.S. Bureau of Land Management. In all, the act increased protection for more than 9 million acres of desert.

If the acreage lacks the majesty of the Grand Canyon and other desert parks, it makes up for it in sheer scope. The three desert parks help keep intact a chain of wildlife habitat and migration pathways from the San Bernardino Mountains to the San Jacinto Mountains.

"We almost have a wildlife preserve from Joshua Tree through to Death Valley. That's a wildlife corridor 100 miles wide," said Elden Hughes, chairman of the Sierra Club's California-Nevada Desert Committee. "That is an amazing achievement."

The Mojave National Preserve is home to about 200 native plant species, including the Mojave yucca and its menacing-looking cousin, the Spanish bayonet, as well as one of the country's largest and densest Joshua tree forests. Some of the rocks here date back 2.5 million years. The preserve supports a broad array of animal life: bighorn sheep, desert iguanas, chuckwallas, the long-nosed leopard lizard, 10 species of snakes and the threatened California desert tortoise.

The preserve was created over the angry objections of miners, motorcyclists, ranchers, rock hounds, hunters and property owners who argued that their freedom to enjoy the desert or eke out a living in it was being subordinated to the well-being of cacti and reptiles.

In Washington, D.C., congressional opponents sought to restrict the preserve's first budget in 1995 to $1. After President Clinton's veto, Congress allocated money, but only enough to hire a staff of four.

A decade later, the bitterness remains. Critics accuse the Park Service of systematically phasing out activities that Congress intended to protect. One of the most acrimonious debates has been over access. New rules barred motorized travel on desert tracks and trails that historically were open to Jeeps, dirt bikes and all-terrain vehicles.

Now, as the Park Service prepares for next month's anniversary celebration, San Bernardino County supervisors are threatening to punch 2,500 miles of roads through the preserve, saying they're entitled to do so under a 19th century statute enacted to promote settlement of the Western frontier.

"The Park Service wants to return to the time of the Indians. These guys are anti-people," said Chuck Cushman, executive director of the American Land Rights Assn., which represents private property owners who own parcels within public land. Cushman grew up in the Mojave. "They only want enough visitors to justify their budget. It's a new paganism: They worship trees and sacrifice people."

Park Service officials insist the only human activity they want to restrain is the illegal sort, and they have encountered plenty of that — the running of methamphetamine labs, the rampant poaching of protected animals and the dumping of household trash and industrial waste.

Friction between the Park Service and law-abiding residents was inevitable. When the Park Service took over, about 1,200 people owned property inside the preserve. Cattle grazed across 940,000 acres. There were 9,000 mining claims.

In 1996, Catellus Development Corp., the former real estate arm of the Southern Pacific Railway and the largest private landlord within the preserve, began mining surveys and subdivision mapping. A Las Vegas developer announced plans to build 100 homes and a golf course on privately owned land within five miles of the preserve's largest herd of desert bighorn sheep.

Lawmakers specifically designated the land a preserve and not a park accommodating such traditional human uses as hunting, trapping and cattle grazing. At the same time, it was intended as a sanctuary for a desert ecosystem that had been under stress from decades of human activity. Many of the area's natural springs had disappeared, a casualty of livestock grazing and some 4,000 feral burros, which had also destroyed native plants and tortoise habitat.

With help from conservation groups, Mojave preserve Supt. Mary Martin, who has worked there since its inception, launched a campaign to retire grazing rights and buy out the largest private holdings. Catellus is gone. No mines are currently operating, and Martin's staff is cleaning more than 600 abandoned mines. Livestock occupy little more than a quarter of the land they grazed in 1994. Only one cattle ranch is left.

Martin said preliminary results of a water survey indicate 150 functioning springs, the most ever recorded there.

"We've had a lot of successes, we really have," she said. "The desert tortoise is much more protected. Visitors now have marked trails to hike on. The dunes are in better shape — we've now got vegetation there. The water situation is much improved. We've managed to keep development out of the park. I believe we are absolutely managing the preserve in the manner that Congress told us to."

Yet conflicts persist.

Martin wants to remove at least some of the 139 "guzzlers," or man-made water sources, maintained by hunters to help sustain game animals. Martin said drowned tortoises have been found in 27% of the guzzlers.

The guzzler dispute underscores an age-old debate between those who believe that natural conditions should determine the size of wild herds and those who want to ensure a plentiful supply of big game.

Daniel Patterson, desert ecologist with the Center for Biological Diversity, strongly disagrees with those who say that the National Park Service's management is subverting the intent of Congress.

"Congress said those activities may continue," Patterson said. "There's a difference between allowing an activity, and planning and managing for it."

Many in San Bernardino County "have lost sight of the 'national' part of the preserve," Patterson said. "It's not the 'San Bernardino Preserve' or the 'Barstow Preserve.' It's a national preserve."

But Congress did promise local benefits. U.S. Sen. Dianne Feinstein and other supporters of the Desert Protection Act said it would boost the fortunes of a region too long dependent on a 19th century economy of ranching and mining.

Joshua Tree and Death Valley are significant tourism draws, bringing in $46 million and $44 million respectively each year to local economies, according to a 2003 study by the National Parks Conservation Assn. The Mojave National Preserve lagged significantly behind, generating $5.1 million.

Barstow Mayor Lawrence Dale said he had no idea whether visitors to the preserve stayed in the city.

"I don't think it has had an impact one way or another," said Dale, who said he has never visited the preserve.

Critics may exaggerate the changes, but for them, the Mojave they cherished is less accessible. It was a place where families prospected around old mines and drove right up to the low-lying mountains for picnics among the boulders.

"There was a functional piece of Americana out here. But now, is it better off? I don't really see it," said Dennis Casebier, a local historian and 50-year resident of the area.

But Casebier's Mojave was doomed, say preserve advocates like Elden Hughes.

"The vision was that this was a living museum from the 1890s," Hughes said. "The vision was an impossible one, and not even a good one. You have the fastest-growing urban center, Las Vegas, and the L.A. Basin spilling over the mountains, and you think you are going to keep ranching there? Parks and wilderness are something you can keep. The laws are strong."