WESTERN WATER: Judge on landowners’ plight: ‘I won’t say the word “screwed”‘

Ellen M. Gilmer, E&E News reporter

There, government lawyers urged the U.S. Court of Federal Claims to toss a lawsuit from Nevada landowners who say a federal restoration project stole their water and flooded their land.

At issue is Patch of Heaven, a Christian camp on private land nestled within the Ash Meadows National Wildlife Refuge.

The Nevada church Ministerio Roca Solida bought the 40-acre site in 2006 for $500,000. At the time, a stream called the Carson Slough flowed across the property, feeding plants and a small pond and sometimes serving as a site for baptisms.

In 2010, the Fish and Wildlife Service, which manages all of the surrounding land, rerouted the channel in a restoration project to help the Ash Meadows speckled dace, an endangered fish that lives in the area’s warm springs.

Annette and Victor Fuentes, who own Ministerio Roca Solida, say the government owes them compensation for eliminating the stream from their property — except for a trickle of water the site claimed through a state permit — and rerouting it in a way that causes repeated flooding on another part of the parcel.

The couple teamed up with the conservative Mountain States Legal Foundation and attracted the support of Westerners opposed to federal land management, including the Bundy ranching family infamous for its conflicts with government agencies.

Speaking at a boisterous rally at Patch of Heaven last year, Ryan Bundy offered to demolish the FWS project himself (Greenwire, April 23, 2018).

The mood was decidedly tamer during yesterday’s hearing, where just five spectators — including one reporter and one court employee — listened to more than two hours of technical arguments involving property rights, water law and hydrology.

Judge Elaine Kaplan must decide whether to grant the government’s motion for summary judgment rather than allowing the case to proceed to trial.

The church’s claims are twofold: that the government’s elimination of streamflow on the land without payment amounted to an unconstitutional taking of vested water rights, and that the diversion project’s contribution to flooding was also a taking.

Justice Department lawyers yesterday disputed both claims. The government contends the landowners are not entitled to the water rights they claim, and, in any case, that issue should be adjudicated by the state of Nevada, not the Federal Claims court.

The two lawyers from DOJ’s Environment and Natural Resources Division also attempted to poke holes in the Fuenteses’ flooding claims, dismissing the plaintiffs’ expert testimony as unsubstantiated and noting that the broader area is prone to flooding.

“Plaintiffs would like this court to believe … that there was never flooding on that part of the property,” DOJ attorney Davené Walker said, adding that the area is part of a flood zone and has a well-documented history of such events.

Walker explained that to win a takings claim against the government for flooding, the plaintiff must show that FWS caused the flooding and intended or expected it to happen. Ministerio Roca Solida has offered no evidence to support either prong, she said.

Mountain States Legal Foundation lawyer Zhonette Brown, in turn, questioned the evidence presented by the government.

Kaplan, an Obama appointee, agreed with the government that Ministerio Roca Solida’s expert testimony appeared “a little thin,” but she questioned whether it would be appropriate to resolve the case in favor of the United States at this stage, without allowing the church to make its case at trial.

She also empathized with the Fuenteses on their loss of the stream, regardless of whether FWS’s project was lawful.

“I won’t say the word ‘screwed,'” she said of the landowners, eventually landing on the word “injured.”

The judge added that she’s never heard a water rights case or a flooding case before and will need some time to consider the competing evidence.

“Your Honor’s more than welcome to come out to the property,” Brown said, “so you can make your own conclusion.”

Dried-up baptimisal pool. Photo credit: Jennifer Yachnin/E&E News
The former baptismal pool at the Patch of Heaven camp in Amargosa Valley, Nev. A “legal evidence” sign refers to the camp’s owners’ lawsuit with the Fish and Wildlife Service over diverted streams and flooding. Jennifer Yachnin/E&E News

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Editorial: Give wild horse and burro plan a chance

by Thomas Mitchell

An unprecedented collaboration between various government agencies, animal welfare groups and ranchers has created a plan aimed at finally bringing the wild horse and burro population on the Western range under control.

The disparate groups include the Society for the Prevention of Cruelty to Animals, the National Cattleman’s Beef Association, the Humane Society of the United States, the American Farm Bureau, American Mustang Foundation, the Public Lands Council and others.

The plan calls for removing 15,000 to 20,000 wild horses a year from the range in the next three years, drastically increasing the use of temporary and permanent sterilization, moving horses to cheaper cost-effective private grazing land and promoting adoptions. The removal number would drop drastically as fertility control takes effect.

The Path Forward for Management of BLM’s Wild Horses & burros

 

The primary objective of this proposal is to develop an economically and environmentally viable, humane, non-lethal, and feasible long-term management plan for wild horses and burros in the American West. The current program is unsustainable and needs redirection.As of March, the Bureau of Land Management estimated that the population of wild horses and burros on federal lands is more than 81,951 — more than three times 26,690 the agency believes the range can sustain — and that population can grow 18 percent a year, the plan warns. Meanwhile, the BLM maintains 36,906 wild horses and burros in large pasture facilities, and 14,029 horses and burros in corral facilities at a cost of $50 million a year.

The plan calls from increasing the BLM’s total wild horse and burro management budget from the current $80 million a year to $130 million initially, but with cost declining as fertility control cuts population growth and horses and burros are adopted. The goal is to sterilize 90 percent of the animals on the range.

Nancy Perry, ASPCA’s senior vice president, told The Associated Press, “Not every advocate wants to engage with or work with those that they have been in battle with over the years. But BLM’s current polices are ineffective. If they continue on the road they’re on now, it means disaster.”

In fact, the AP reported that the plan has ignited fierce opposition from the American Wild Horse Campaign and Friends of Animals, groups that are already challenging in the courts earlier horse round-ups.

The American Wild Horse Campaign was quoted as saying, “The groups promoting this plan have been co-opted into supporting the livestock industry’s agenda for wild horses by the BLM’s vague promise to utilize undefined ‘population growth suppression’ methods. By mandating the removal of a startling 15,000 to 20,000 wild horses a year, the plan will result in the reduction of America’s wild herds to extinction levels.”

Despite the hysteria from the horse huggers, the plan is at least putting forward a rational effort to control the horse and burro population on the range. The plan estimates it will take 10 years to reach the population that the BLM says is sustainable. Currently the animals in many herd management areas are so overpopulated that they are starving and damaging water resources. Grazing land needed by cattle and other wild animals is depleted.

The plan also addresses the cost of keeping wild horses off the range.

“Every day, the BLM spends $1.82 per horse in long term holding pastures and an average of $4.99 per horse in corral facilities,” the plan notes. “A shortage of pasture facilities has forced the agency to use corral facilities for long term purposes — at more than twice the expense. … The agency estimates that each of those horses costs approximately $46,000 over the course of their lifetime. We propose that the BLM relocate corralled horses and burros, along with any additional removed horses and burros, to more cost-effective private pastures.”

The status quo is not acceptable. Give this plan a chance.

Wild horses being warehoused at Palomino Valley.
A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Source: Editorial: Give wild horse and burro plan a chance

Supreme Court Moves to Overturn Conviction of Joe Robertson, Fined and Jailed for Digging Ponds on his Rural Montana Property

 

SCOTUS overturned decision upholding Robertson’s conviction and remanded the case so that the indictment could be dismissed and the lien cancelled

(Washington, DC) – Judicial Watch announced today that the Supreme Court of the United States has overturned a lower court decision affirming the conviction of Joseph Robertson, a 78-year-old veteran now deceased who was sentenced to prison for digging ditches on his rural Montana property to protect the area surrounding his home from wildfires. Judicial Watch had filed an amicus curiae brief jointly with the Allied Educational Foundation supporting Robertson and urging Supreme Court review and reversal of the lower court decision. Robertson served 18 months in prison and died while serving probation. He was also fined $130,000, a liability inherited by his estate.

The Supreme Court also remanded Robertson’s conviction to the lower court so the indictment can be dismissed and the lien can be cancelled.

Judicial Watch and the AEF had asked the Supreme Court to review the ruling by the U.S. Court of Appeals for the Ninth Circuit that upheld Robertson’s conviction, because that decision “affirmed illegal agency actions in prosecuting Joseph Robertson based on a misreading of federal law. The Court should take this opportunity to correct the confusion in overbroad interpretations of the Clear Water Act, which have led to unjust prosecutions and federal intrusions into both state authority and individual liberty.”

The brief was filed in the case of Robertson v. United States, Case No. 18-609, 587 U.S. __ (2019). This was an appeal of the Ninth Circuit decision in United States v. Robertson, 875 F.3d 1281, 1285 (9th Cir. 2017).

Judicial Watch asserted in its filing that the ditches Robertson dug “sat on what a federal agency defines as wetlands and were situated on or near a small downhill water flow of about three garden hoses in volume.  Mr. Robertson was not engaged in manufacturing or any other industrial activity which would release chemicals or waste into the water, but under the federal Clean Water Act even turning the soil with a shovel can be considered to be releasing a ‘pollutant’ into water.”

In their brief, JW and the AEF suggest that the issue is larger than Robertson’s personal plight, that it also involves the separation of powers among Congress, the Executive Branch and the Supreme Court.

Judicial Watch and AEF also note that the Supreme Court itself has introduced confusion into the issue of “adjacent wetlands,” “point source,” and “navigable waters.

Also, matters like those involving Robertson properly belong with the state, not the federal government.

The brief argues that the Congress has been all too willing to forego its Constitutional duty and defer to federal agencies.

[It was not foreseen that] the judiciary could eventually aid and abet the complete sacrificing of power by one of those two branches, effectively leaving a one-branch government where the founders intended three. When the Court goes too far in reading statutes as broadly assigning sweeping interpretative power to agencies, this allows Congress to give up power altogether and to stop the necessary work of revising and repealing statutes. Congress has proven itself either willing to give up those powers or unable to stop itself from doing so, preferring to ask the executive branch to reinterpret or reimagine statutes in ever more creative ways while sparing members of Congress the pain of accountability for national policy. The Court should not countenance this upending of the constitutional order.

“The Supreme Court has granted a victory against an overreaching government bureaucracy,” Judicial Watch President Tom Fitton said. “The government should not be allowed to regulate every drop of water in America, and the Supreme Court was right to brush back the radical bureaucrats. Mr. Robertson, a veteran, died before he was vindicated but his fight has protected the constitutional freedoms of other Americans.”

The Allied Educational Foundation is a charitable and educational foundation dedicated to improving the quality of life through education.  In furtherance of that goal, the Foundation has engaged in a number of projects, which include, but are not limited to, educational and health conferences domestically and abroad. AEF has partnered frequently with Judicial Watch to fight government and judicial corruption and to promote a return to ethics and morality in the nation’s public life.

Source: Supreme Court Moves to Overturn Conviction of Joe Robertson, Fined and Jailed for Digging Ponds on his Rural Montana Property


Clark County pushes for off-highway vehicle recreation areas

The move to request that federal lawmakers establish three OHV recreation areas drew fierce criticism from an environmental nonprofit due to potential implications for the threatened desert tortoise.

The Clark County Commission recommended on Tuesday that federal lawmakers designate more than 100,000 acres for off-highway vehicle recreation south of the Las Vegas Valley in a future public lands bill.

Elected officials are urging Congress to consider three specific areas: More than 42,000 acres near Nelson Hills, nearly 40,000 acres by Sandy Valley and more than 18,000 acres close to Laughlin.

Both the Nelson Hills area, near the town of Nelson, and the Laughlin area, northwest of that city, are already being used for OHV events and recreation, county officials said. The Sandy Valley area, along the state’s southern boundary between that community and Primm, would be new for prioritizing OHV recreation.

They said the recommendation is meant to strike the delicate balance between keeping environmental protections and affording OHV enthusiasts with defined locations to ride. Commission Chairwoman Marilyn Kirkpatrick said the plan is broad and does not restrict officials from pulling back if necessary.

The unanimous decision was preceded by monthly open meetings held since August by the OHV advisory committee — 10 members of the public representing OHV interests. They sought equality in land use after designations in recent years had gone toward environmental protections, the solar industry and others, according to a presentation by Kimberly Jenkins, a principal environmental specialist for the county’s Department of Air Quality Management.

The plan was delayed in February after criticism from off-roaders and environmentalists. Certain environmental concerns were incorporated as changes in Tuesday’s resolution.

Lands designated as areas of critical environmental concern or with wilderness characteristics were removed from OHV recreation boundaries, and the Sandy Valley area boundary was moved further away from the tiny unincorporated community of Goodsprings after residents complained about the proximity.

But the move to request that federal lawmakers establish three OHV recreation areas drew fierce criticism from an environmental nonprofit due to potential implications for the threatened desert tortoise.

About 27,000 acres of the desert tortoise’s habitat would be included in the Nelson Hills OHV area, according to the Center for Biological Diversity.

“This is an outrageous attack on Nevada’s state reptile,” Patrick Donnelly, the center’s state director, said in a statement. “The commission wants to permanently designate protected areas as off-highway vehicle sacrifice zones. These elegant tortoises really have no defense against a swarm of vehicles racing through the desert.”

The Nelson Hills area was designated a desert tortoise critical habitat in 1994 by the U.S. Fish and Wildlife Service, according to the county’s presentation. But four years later, the Bureau of Land Management deemed the area appropriate for competitive off-road events “in accordance with applicable FWS Biological Opinions to protect” the habitat.

Still, Donnelly suggested the three-area plan was part of a larger effort by the county to convince Congress “to dramatically expand the urban growth boundary around Las Vegas” as he called for lawmakers to reject it.

Commissioners greenlighted a resolution in June that included 45,000 acres of public land for commercial and residential development between Sloan and Jean as part of a host of public lands issues they sought to have addressed through federal legislation.

There is no timetable for when Congress would consider rolling the three OHV areas into future federal legislation. But the resolution Tuesday called for the BLM to complete travel, transportation and recreation management plans for the areas within two years after a bill is signed into law.

Contact Shea Johnson at sjohnson@reviewjournal.com or 702-383-0272. Follow @Shea_LVRJ on Twitter.

Source: Clark County pushes for off-highway vehicle recreation areas