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WOLF: Oregon Cattlemen elect to sue feds

Agriculture, Lawsuits, Wolves

Western Livestock Journal

wlj, 06-19-2017 » Page 1

Oregon Cattlemen elect to sue feds

At a mid-year meeting held in Pendleton on June 2, members of the Oregon Cattlemen’s Association (OCA) voted to move forward with a plan to sue the U.S. Fish and Wildlife Service (USFWS) over their continued failure to remove gray wolves from the federal endangered species list in portions of the state. While originally intended as a joint effort across all three West Coast states, Oregon is the only state currently moving forward with the suit.

Specifically, the planned lawsuit targets a 2013 proposed rule change by USFWS, in which they recommended removing the gray wolf from the endangered species list nationwide. While USFWS did find that wolves had recovered sufficiently in the U.S. to warrant delisting, the proposal quickly became mired in environmental lawsuits over wolves in the western Great Lakes region.

Except for Wyoming, where wolves were delisted earlier this year, wolves remain under protected status in much of the U.S., including portions of Oregon, Washington and all of California, despite the 2013 recommendation. In Oregon, wolves remain under federal protection west of Highway 395, roughly two-thirds of the state.

According to OCA Executive Director Jerome Rosa, OCA members felt that this limbo has continued for far too long. “Nobody wants to sue,” says Rosa. “Unfortunately, that’s what you have to do to get action. Our members have been living patiently with wolves for a long time. They have tried hard and abided by the law, and we felt like this was the responsible thing to do at this time.”

According to Johanna Talcott, a lawyer with the Pacific Legal Fund (PLF), which intends to represent OCA, the case, from a legal standpoint, is clear. “Under the ESA, when the service issues a proposal, they have 12 months to publish a final rule,” she explains. “To me, this is not a very complicated issue.”

For neighboring states, however, the issue is considerably less clear cut. According to Rosa, the plan to sue was originally conceived last year, through the combined efforts of members of the OCA as well as the Washington Cattlemen’s Association (WCA). However, while WCA members were present at the Oregon meeting, that group has indicated that they would rather not take part in the suit. Similarly, members of the California Cattlemen’s Association (CCA), also in attendance in Oregon, have indicated that they do not intend to take part in the suit at this time.

“At this time, we are not contemplating joining the suit,” says CCA director of government affairs Kirk Wilbur. While strongly in favor of delisting wolves, Wilbur indicates that CCA prefers to give the fledgling Trump administration a chance to address the issue on their own.

“We know that we have a sympathetic administration,” he says. “We want to give them time to act to delist the wolf in accordance with the proposed rulemaking that began in 2013. If they ultimately fail to move forward on that, then maybe down the line, litigation is an option. But I don’t think that right now is the appropriate time to employ that strategy.”

Additionally, says Wilbur, his organization is already involved in a similar lawsuit to delist wolves at the state level, as a hedge against the expected federal delisting. “We suspect that, ultimately, the gray wolf will be delisted federally,” he says. “The issue then is that wolves are still completely protected within California. We’re focusing our efforts there.”

Ethan Lane, executive director of the Public Lands Council, has also expressed concerns regarding the timing of the suit. “We like what we’ve heard from (USFWS) on their path forward for delisting so far,” Lane says of the PLC. “Given the fact that there is not a new director or any senior staff in place yet, we’re inclined to let that play out before we go to the legal system.”

“However, we always want to be careful to respect the decision of any of our state affiliates to choose the path that is best for them,” he adds.

Citing the recent delisting of wolves in Wyoming as an encouraging sign, Lane indicates that much is resting on the pending court decision in the upper Great Lakes, where wolves were returned to the ESA list following a court order in 2014.

“The court case that is pending there is really the lynchpin of the whole issue,” says Lane. “I think that everyone is waiting with baited breath for the appeals court to rule on that.”

WCA president Tyler Cox also does not think that USFWS is likely to move prior to the great lakes decision, pointing out further cause for his state to question the timing of the suit.

“Once that 60 day notice is filed, that tool is done,” he says. “To me, that’s using up one of our major pieces of ammunition before we’re in range of anything.”

Ironically, a potentially favorable administration is also a major factor in OCA’s decision to go ahead with the lawsuit.

“We are obviously concerned that, following the 2018 elections, the political atmosphere may change,” says Rosa. “It takes a while for this process to move forward. To take advantage of the current favorable atmosphere, we felt like we should go ahead and move at this time.”

In order to start the process, a 60-day notice of intent to sue must be filed with the federal government, a step that Talcott says will occur sometime this week. According to Talcott, PLF feels that USFWS is unlikely to move soon without some pressure. “We have to initiate these lawsuits to get them to move,” she says. “They don’t act without a little bit of prodding.”

“There’s several different strategies in place here,” says Rosa. “Different folks have different thoughts and ideas on what the best time is. We felt like the pros outweighed the cons, and that’s why we decided to move forward at this time.” — Jason Campbell, WLJ correspondent

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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How environmentalist litigation is sending our national forests up in smoke

Endangered Species Act, FIRES, Forestry & USFS, Lawsuits

PNP comment: Unfortunately, this has been happening for 30 years! — Editor Liz Bowen

Free Range Report

June 10, 2017

“Our national forests are dying from neglect. Rather than channeling dollars to active forest management to reduce the risk of wildfire, the Federal government must spend its funds defending sound management practices from this perpetual environmental litigation machine.” ~Rep. Tom McClintock

House Committee on Natural Resources Press Release

Policy Overview

♦The U.S. Forest Service is entrusted with managing 193 million acres1 of mostly forested areas in 43 states and Puerto Rico.

♦Currently, Fifty-eight million acres of national forest are at high or very high risk of severe wildfire3 due in large part to a lack of active management of the landscape.

♦When District Rangers, Forest Supervisors and their staffs attempt to advance forest thinning and other active management projects, their efforts can be significantly delayed or derailed due in large part to ever increasing environmental analysis requirements resulting in longer, more costly planning timelines and significantly increased regulatory complexity.

♦Ever-increasing analyses are a direct result of attempts by the Forest Service to make environmental analysis documents “bullet-proof” in an increasingly litigious landscape.

♦As reported in the Helena Independent Record, “the National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and National Forest Management Act (NFMA) are most often cited as the basis for litigation.”

♦Vegetative management activities account for more than 40 percent of all lawsuits brought against the Forest Service.

♦According to a Government Accountability Office (GAO) analysis of data provided by the National Association of Environmental Professionals, the Forest Service produced 572 Environmental Impact Statements (EIS) between 2008 and 2012, nearly 25 percent of all draft and final EIS produced during that time period.

Panel Examines Negative Impacts of Excessive Litigation on Forest Health 

WASHINGTON, D.C., June 8, 2017 –

Today, the Subcommittee on Federal Lands held a hearing to examine how litigation and increasingly excessive environmental analysis facing the U.S. Forest Service (USFS) has exacerbated the ongoing forest health crisis.

♦“We are bankrupting the future,” witness Lyle Laverty, Certified Forester and President of the Laverty Group, said. “America’s green infrastructure is on life support, perhaps even on the brink of ecological collapse.”

58 million acres of national forests are at high or very high risk of severe wildfire. Despite deteriorating forest health and the increasing potential for catastrophic wildfire, USFS employees spend more than 40 percent of their time conducting planning and analysis instead of managing our federal forests and rangelands.

♦“[O]ur national forests are dying from neglect,” Subcommittee Chairman Tom McClintock (R-CA) said. “[R]ather than channeling dollars to active forest management to reduce the risk of wildfire, the Federal government must spend its funds defending sound management practices from this perpetual environmental litigation machine.”

Environmental laws originally intended to protect the environment, such as the National Environmental Policy Act and the Endangered Species Act, are now working against the USFS, significantly hindering active management.

♦”This has contributed to the decline of the very resources the laws are intended to protect,” Laverty stated. “Unnatural fuel accumulations lead to the uncharacteristic wildfires that can and will ultimately harm listed species and water quality.”

The panel outlined how excessive lawsuits and vague statutory authorities force the USFS to make environmental analysis documents “bullet-proof,” in fear of litigation.

In this litigation-prone climate, Laverty argued the federal focus “has been mostly prevention of harm from action. The potential for harm from inaction has largely been ignored.”

Another witness, Lawson Fite, General Counsel for the American Forest Resource Council, argued that a large percentage of lawsuits aren’t targeted as specific legal violations, but are instead used by self-proclaimed environmental groups to halt or prevent restoration activities.

♦“They force the agencies into years-long paperwork exercises that result in no project changes or conservation benefit,” Fite said.

♦“They have succeeded...  It might be making environmental attorneys rich, but it is  killing our forests,” McClintock added.

♦Fite, however, offered hope, describing forestry as “an area of bipartisan progress” noting: “There are a number of measures with support from Republicans and Democrats, environmentalists and industry, which can streamline environmental compliance while preserving a right of review and protecting resources such as watersheds and wildlife. The time for action is now.”

♦”Healthy forests are a win-win-win situation,” Rep. Westerman (R-AR) stated“We should all be able to work together to manage our forests in a healthy, sustainable manner for everyone’s benefit.”

http://freerangereport.com/index.php/2017/06/10/how-environmentalist-litigation-is-sending-our-national-forests-up-in-smoke/

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Hearing lambasts “sue and settle” agreements

Agriculture, Clean Water ACT - EPA, Lawsuits

Western Livestock Journal

wlj, 06-05-2017 » Page 1

Hearing lambasts “sue and settle” agreements

— Cost to taxpayers staggering

Cozy consent decrees between environmental groups and agencies could become a thing of the past if a recent hearing on Capitol Hill is any indication. On May 24, a House Oversight and Government Reform subcommittee hearing examined abusive “sue and settle” tactics, their effects, and how to put a stop to them.

There to explain “sue and settle” to the committee were several witnesses from the private sector, including an Idaho rancher; a Colorado property rights attorney; an environmental attorney; and a representative of the U.S. Chamber of Commerce, William Kovacs.

The “sue and settle” phenomenon happens under the “citizen suit” provisions of environmental laws such as the Clean Water Act, the Clean Air Act, and the Endangered Species Act (ESA). Environmental groups sue agencies, usually on procedural errors such as missed deadlines. Often, the agencies then voluntarily agree to consent decrees instead of going to trial.

Those settlements can result in new federal regulations that lack public vetting and analysis, because they often include abbreviated deadlines for agency decisions, Kovacs said. They can also result in the denial of federal permits or the imposition of permit conditions on private parties such as ranchers. They can bind an agency to future actions, and sometimes even bind future administrations.

The only parties than can enforce a consent decree are the interest group, the agency, or the court, Kovacs explained. The public is completely left out of the process. Even parties that intervene to defend against environmental groups are most often left out of the settlement.

Cozy—and costly

Furthermore, there doesn’t always appear to be an adversarial relationship between the interest groups and the agencies, Kovacs argued. For example, he said between 2009 and 2012 the Environmental Protection Agency (EPA) chose not to defend itself in over 60 Clean Air Act lawsuits from advocacy groups. These cases resulted in settlement agreements—and EPA ultimately published more than 100 new regulations.

The cost to Americans is staggering. According to a 2013 Chamber report, the 10 most costly regulations from sue-and-settle agreements (all EPA water and air regulations) cost the economy in excess of $100 billion annually. Kovacs noted that, between 2013 and 2016, settlements and new regulations only increased.

Setting the agenda Ironically, the shorter deadlines imposed by consent decrees are usually the result of deadlines already missed by the agency, Kovacs said.

“Here’s how the problem starts,” Kovacs explained. “An agency like the EPA misses somewhere between 84 percent and 96 percent of its deadlines. And once a deadline is missed, the interest group can sue the agency.”

And since EPA misses virtually all of its deadlines, he went on to say interest groups can cherry-pick which rules out of hundreds of rules they want to advance. “It’s through this selection process that the interest groups establish the priorities of the agency,” he said.

Creating log-jams

Another witness at the hearing, Colorado attorney Kent Holsinger, also pointed out how environmental groups are sometimes creating the very “log-jams” that open the door for litigation. For example, by petitioning to list hundreds of species at a time under the ESA, certain groups have made it impossible for the U.S. Fish and Wildlife Service (USFWS) to meet its ESA-imposed deadlines. The groups then litigate those missed deadlines, forcing the agency to divert resources into the courtroom and miss even more deadlines.

The staggering number of ESA lawsuits brought by a few environmental groups over the years finally resulted in the infamous 2011 “mega-settlements” that gave USFWS shortened deadlines on over 1,000 species listing decisions. The result, Holsinger said, has been numerous listings and critical habitat designations that haven’t been properly analyzed by the agency or vetted by the public.

Ranching in the crosshairs

Witness Darcy Helmick, an Idaho rancher and representative of Simplot Land & Livestock, gave several examples of how interest groups use missed agency deadlines and settlements to target the livestock industry. In one case on Idaho’s Jarbidge Resource Area, managed by the Bureau of Land Management (BLM), anti-grazing litigators had sued to prevent BLM from renewing a large number of grazing permits. That lawsuit resulted in a settlement agreement wherein BLM was to perform environmental reviews within a certain timeline before renewing the permits.

But then the special interest group sued BLM again on a separate matter, making it impossible for the field office to accomplish its environmental reviews in time. Over 2,000 pairs of cattle had to be removed for over 80 days until a judge issued an order allowing them back on.

Taxpayers funding the problem

Several of the witnesses noted that interest groups are benefiting nicely from attorney fees awarded in settlement agreements. Holsinger pointed to a 2012 House Committee on Natural Resources investigation that showed that, between 2008 and 2012, the federal government paid more than $15 million in attorney fees on ESA-related lawsuits alone.

“Unfortunately,” Holsinger noted, “the true cost of ‘sue and settle’ is impossible to ascertain as neither the agencies nor the Department of Justice seem to keep track.”

Holsinger also pointed out that many of the groups that use “sue and settle” receive extensive government grants. For example, WildEarth Guardians, one of the groups party to the 2011 ESA mega-settlements, received $800,104 in government grants—just in 2016.

Legislation needed

Though things could be different under the Trump administration (EPA Administrator Scott Pruitt stated in March 2017 that the EPA intended to end the practice of ‘sue and settle’), the problem reaches beyond the EPA and beyond this administration, the witnesses noted.

“Legislation is needed, because the [sue and settle] practice can be repetitive in the future,” said Kovacs.

One bill, H.R. 1525, the Stop Taxpayer Funded Settlements Act, would prevent attorney fees from being awarded in settlements regarding the Clean Air Act, the Federal Water Pollution Control Act, or the ESA.

Several witnesses also pointed to H.R. 469, the Sunshine for Regulatory Decrees and Settlements Act of 2017 (Senate companion bill S. 119). The bill would require the defending agency to provide a 60-day notice to the public on consent decrees so the public can provide comments. The agency would then be required to provide a summary of those comments to the court for review. Additionally, interested parties such as ranchers would be granted the right to intervene and participate in the consent decree if they could establish their rights weren’t being adequately protected by the defending agency.

“We are not trying to change any of the law in terms of how the process goes or the discretion of the agencies,” said Kovacs. “What we’re trying to do with H.R. 469 is bring transparency to the process.”— Theodora Johnson, WLJ correspondent

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Citizens File Lawsuit Against State of California

JEFFERSON DECLARATION, Lawsuits, Liberty

May 3, 2017

Citizens for Fair Representation (CFR) will file a lawsuit against the State of California for lack of representation and dilution of vote. CFR represents citizens from 21 rural counties in the northern area of the State. A long list of plaintiffs have joined CFR in the lawsuit, representing a diversity of cultures, ages, races and political philosophy.

Over the last 3 years, most of these plaintiffs have petitioned the California State Legislature and Secretary of State seeking equal/fair representation, Tens of thousands of letters, phone calls and emails have gone out to their elected representatives, requesting they introduce a Bill or Resolution, creating a more representative balance in both legislative chambers. The plaintiffs have personally visited individual legislative offices, but plaintiffs claim that all requests have gone ignored, leaving them no choice but to now enter the legal process.

Currently, California’s population is just under 40 million, represented by 40 State Senators and 80 Assembly members. The same number of elected representatives that in 1862 represented 416,640 people.

Prior to 1964, just about every County was represented by one State Senator. Today a California State Senator represents an average of 1 million people, with each assembly member, representing 500,000. Currently, 11 northern rural counties have one Senator whose vote is diluted by 15 senators representing the single County of Los Angeles.

California’s imbalance of representation ranks the worst on the list of 50 States. The small state of New Hampshire has 400 in their State House of Representatives, with one representative for less than 4,000 people. There are 24 State Senators, or 1 for every 55,000 citizens. New Hampshire’s ratio of balance closely models the representation that CFR is seeking to accomplish. If CFR is successful, this would be history in the making, not only for their 21 counties, but all of California’s 58 counties and those in other states.

Claimants state, “California’s refusal to increase its levels of representation to reflect its exponential population growth is both arbitrary and unconstitutional. “

The case, Citizens for Fair Representation vs Secretary of State Alex Padilla, will be filed on May 8th, in the United States District Court, Eastern District of California, Sacramento Division. Citizens for Fair Representation is a 501(C)(4), a non profit corporation.

# # # Attention News Editors: For interviews or more information, please call Mark Baird, 530-227-6729, Terry Rapoza, 530-246-9706.

Terry Gherardi, CfFR Public Information Officer – 530-677-4294

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Water squeeze in Oregon’s Klamath Basin pits ranchers against tribes, both with strong ties to the land

Agriculture, cattle, Klamath Tribe, Lawsuits, Water rights

PNP comment: This is a fairly good background article on the lawsuit and eventual settlement in favor of the Klamath Tribes being allowed to take other water right users’ water allotments away. — Editor Liz Bowen

Oregon Live.com

By Scott Learn, The Oregonian
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on July 06, 2013 at 12:00 PM, updated July 08, 2013 at 6:30 AM

SPRAGUE RIVER — A summer evening on Jim and Caren Goold’s  front porch. The river meanders through their cow pasture, a curly blue ribbon framed by foothills dotted with ponderosa pine. And, yes, the cattle are lowing.

It’s about as pastoral as a scene gets. But the upper Klamath Basin, already three months into a drought emergency, is far from peaceful this summer.

Two parties with strong ties to the land, the upper basin ranchers and The Klamath Tribes, are pitted against each other for limited water, the latest skirmish in one of the nation’s most persistent water wars. And deep historical divisions stand in the way of compromise.

In late June, a state watermaster handed Jim Goold a yellow card ordering him to shut off irrigation for the first time in his 40 years on the 617-acre ranch.

“It’s beyond frustrating,” Caren Goold says. “We have all this wonderful water going by and we can’t touch any of it.”

The Goolds worry they’ll lose pasture for 300-plus cows, their income and their ranch, where Jim’s parents are buried out back. They see a future land grab through the Bureau of Indian Affairs, with land values falling as irrigation water evaporates.

Here’s where history’s twists come in. Much of the upper basin, including the Goolds’ ranch, was once The Klamath Tribes‘ reservation land. The federal government “terminated” the tribes in 1954, a move that included cash payouts, but is widely seen as a tribal disaster.

This year, fortunes sharply changed. The state of Oregon ruled that the tribes’ “time immemorial” water rights on the former reservation remain intact, giving the tribes a firm upper hand. Last month, tribal leaders called their water rights to sustain their hunting and fishing grounds, triggering the shutoffs.

Twenty miles down Sprague River Road, at the tribes’ offices in Chiloquin, Perry Chocktoot  talks about his own attachment to the land, too. He grew up hunting and fishing here. His grandmother taught him how to smoke and can fish –110 minutes, 15 pounds of pressure.

Chocktoot, the tribes’ cultural and heritage director, says court cases and water rights decisions should have warned the ranchers what was coming. But too many of them view Indians as “drunken idiots,” he says. “And, guess what, we’re not.”

“We’re here by the gift of our creator to help the community,” he says. “That mindset has never been reciprocal. They had a chance to effectively work with the tribes, but they said not just no, but hell no.”

Dry times

Absent a judicial reprieve or a settlement, the water rights decision means irrigation with river water will be shut off to hundreds of ranchers this summer, shriveling pasture for 70,000 to 100,000 cattle.

GS.10025953A_GR.KLAMATHFALLS-02.jpgView full size

So far, state watermasters have shut off water to roughly 300 irrigators on the Sprague and Williamson rivers, with more tributaries of Upper Klamath Lake still to be evaluated.

It’s an echo of Klamath water fiasco a decade ago.

In 2001, the U.S. government cut off water to irrigators who tap Upper Klamath Lake as part of the century-old federal reclamation project. The shutoff stemmed from Endangered Species Act listings of coho salmon and two species of suckers and strict ESA requirements on federal projects.

The next year, with intervention from Dick Cheney, the farmers got water instead, and 30,000 chinook salmon died in the lower Klamath River.

That crisis pushed project farmers to negotiate with the tribes, federal and state governments and others to share water and restore riverside habitat. The 2008 Klamath Basin Restoration Agreement was coupled with a plan to remove four PacifiCorp dams on the Klamath River by 2020, which would be the largest dam removal in U.S. history.

But this year is different. Cattle ranchers above the lake, outside the reclamation project, were free to irrigate despite the ESA listings — until this year’s water rights decision.

Many of the ranchers are still fighting, in court and on the streets. On Monday, they rallied in Klamath Falls, driving cattle trucks down Main Street.

They also have challenged the water rights decisions in Klamath County circuit court, asking for a stay this summer. They say the state gave the tribes more water than they need to support hunting and fishing habitat.

The tribes’ water calls would reduce irrigation even in normal water years, the ranchers argue. State officials figure tribal rights fall well below normal streamflows, but the ranchers think the state’s flow estimates are too high.

Roger Nicholson, who leads two ranching groups, raises cattle on 3,000 acres near Fort Klamath. Some of that land came from tribal members, he says, but most has been in his family since the 1890s.

The tribes’ water calls affect his draw even on streams outside the former reservation, he says, since those flows are needed to meet the water rights the tribes won downstream.

The water rights decisions were “a travesty of justice,” Nicholson says, and the shutoffs are “an economic catastrophe beyond compare.” Affected ranches cover more than 100,000 acres, ranching groups estimate.

“It’s bankrupting a whole community,” Nicholson says.

http://www.oregonlive.com/environment/index.ssf/2013/07/water_squeeze_in_oregons_klama.html

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Alaska sues federal government, contending state controls riverbed, not BLM

Bureau of Land Management, CORRUPTION, Federal gov & land grabs, Lawsuits, Liberty, State gov

Free Range Report.com

April 23, 2017

In its complaint, Alaska said it gained title to submerged lands and navigable waters when it acquired statehood, unless the federal government made any claims prior. The state said the federal government based its claim to ownership on a 1984 administrative decision of the Alaska office of federal Bureau of Land Management (BLM).

Chris Ford

Frontiersman.com

Alaska files lawsuit over Knik River ownership

WASILLA — The state of Alaska filed suit against the federal government this week over a land ownership dispute regarding submerged Knik River lands.

The lawsuit was filed in U.S. District Court on Wednesday.

According to a spokesperson from state attorney general Jahna Lindemuth’s office, Alaska wants to assert ownership after failed past attempts to have the United States recognize Alaska ownership of the riverbed.

According to documents filed in federal district court for the District of Alaska, the United States in 2015 conveyed ownership of portions of the Knik River to Eklutna Inc. On its website, Eklutna, Inc. states it owns significant holdings in the Matanuska-Susitna Borough, with approximately 67,000 additional acres due to be conveyed from the Bureau of Land Management. It also owns 90,000 acres within the Municipality of Anchorage, including areas of Eagle River, Birchwood, Chugiak, Peters Creek and Eklutna.

“Such action casts a cloud a cloud over the state’s title,” legal document filings by the state said. “In bringing this lawsuit, the State of Alaska seeks to confirm and retain its right to manage its own lands and waters…the United States claims ownership of other lands in dispute vial this complaint because of its ownership of lands abutting the Knik River.”

In its complaint, Alaska said it gained title to submerged lands and navigable waters when it acquired statehood, unless the federal government made any claims prior. The state said the federal government based its claim to ownership on a 1984 administrative decision of the Alaska office of federal Bureau of Land Management (BLM). That office concluded the stretch of river is not navigable.

The BLM amended the decision in 2002. In September of 2015, relying on its 2002 decision, the BLM issued a decision approving certain lands — chosen by Eklutna Inc. for conveyance to the corporation which represents approximately 175 shareholders, according to its website. It is an Alaskan corporation created under the 1971 Alaska Native Claims Settlement Act for the Native village with the same name.

This month, the state, BLM and Eklutna officials entered into a settlement agreement to resolve state public easement concerns. BLM has indicated it would review its decision in portions within and adjacent to the disputed bottomland areas.

“This case is an important step towards clarifying ownership and access rights for the Knik River,” Lindemuth said. “I would have preferred to avoid litigation, but the federal government refused to recognize the state’s rights to these lands and waters. We are hoping that filing litigation will spur the federal government to quickly overturn its prior decision.”

The state is also seeking to recover costs and attorney fees in the case. Federal officials have yet to respond to the court.

Alaska sues federal government, contending state controls riverbed, not BLM

 

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Sacramento County reeling from jury’s $107 million verdict against it in mining case

Lawsuits, Mining

March 22, 2017

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Court sides with Auburn tribe over former chairwoman’s ouster

Lawsuits, Tribes

Sac bee.com

The ruling by the United States 9th Circuit Court of Appeals, responding to a bitter 2013 clash in one of California’s wealthiest casino tribes and ensuing litigation, effectively rejected claims that the tribe “imposed unlawful restraints” on the “liberty” of Tavares and three other members by cutting off their income and banning them from United Auburn properties.

In October, 2013, Tavares and the other members brought legal action, filed in U.S. District Court in Sacramento as a writ of habeas corpus under the 1968 Indian Civil Rights Act. She charged that the tribal council for the United Auburn Indian Community wrongly denied her $40,000 a month in benefits and bonuses, based on casino profits, and illegally banished her for 10 years.

Tavares was stripped of payments for 3 1/2 years, starting in 2011, reduced by the tribe from an original sanction of four years. The others were denied payments of $30,000 and up for five months and given a two-year banishment, a punishment since expired.

Tavares and the other plaintiffs – Dolly Suehead, Barbara Suehead and Donna Caesar – were part of an unsuccessful recall effort against five tribal council members that focused on the dissidents’ protests over what they charged were excessive legal fees paid to the firm of tribal attorney Howard Dickstein. The lawyer contended he had provided “a phenomenal net benefit to the tribe.”

The 9th Circuit upheld a district court ruling that rejected the Tavares’ faction’s habeas corpus claim on grounds that federal courts lacked authority to intervene in internal tribal politics.

“We ground our opinion in two fundamental principles in the Indian law canon – tribal sovereignty and congressional primacy in Indian affairs,” wrote Judge M. Margaret McKeown in the court’s decision. “We have long recognized that Indian tribes are ‘distinct, independent communities, retaining their original natural rights.’ 

In a partial dissent, Judge Kim McLane Wardlaw supported the ruling that the court couldn’t intervene by overturning the tribe’s financial sanctions against the members. But Wardlaw wrote that United Auburn’s continuing 10-year-banishment order against Tavares “severely restrains her liberty and constitutes ‘detention’ under the Indian Civil Rights Act” and, thus can be overturned by the courts.

“Taveras presents us with precisely the kind of case over which Congress intended to establish federal jurisdiction: having exercised her right to free expression,” Wardlow wrote, adding “Tavares suffered retaliation … in the form of ‘severe restrains on individual liberty’ not shared by other members of her tribe.”

According to court documents, Tavares and the other members were sanctioned for claims in their recall petition that raised “a litany of allegations” against tribal council members, including ‘financial mismanagement, retaliation, electoral irregularity (and) denial of due process.’ 

The tribal council ruling, which banned the members from tribal events, offices and properties other than the members’ own homes, was also imposed because the tribal government ruled the Taveres’ faction wrongfully took its grievances to the news media, including The Sacramento Bee in “a sensationalized publicity stunt.”

Tavares served as chairwoman of the tribe for many years. She led the group when it opened its wildly successful casino on Highway 65 in 2003.

Read it here: http://www.sacbee.com/news/local/article138501293.html#storylink=cpy

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Judge dismisses lawsuit against grazing on eight Oregon allotments

Agriculture, cattle, Courts, Endangered Species Act, Lawsuits, Liberty

PNP comment: Finally, a judge that makes some sense from outrageous claims — the claims are just plain wrong! — Editor Liz Bowen

A federal judge has rejected arguments that cattle grazing hurts endangered sucker fish in violation of forest management law.

Capital Press

Mateusz Perkowski

Published on March 11, 2017 2:39PM

A federal judge has rejected environmentalist arguments that cattle grazing has unlawfully harmed endangered sucker fish in Oregon’s Fremont-Winema National Forest.

U.S. Magistrate Judge Mark Clarke has thrown out a lawsuit by three environmental groups — Oregon Wild, Friends of Living Oregon Waters and the Western Watersheds Project — which claimed that grazing was unlawfully authorized on eight allotments in the Lost River watershed.

The plaintiffs accused the U.S. Forest Service of “ignoring widespread evidence of riparian problems” that adversely affected the Lost River sucker and shortnose sucker, which are federally protected under the Endangered Species Act.

However, the judge has ruled that plaintiffs failed to prove that grazing degraded streams in violation of the National Forest Management Act.

Conditions have improved in many riparians areas despite continued grazing while recovery trends are “not significantly different” among sites that are grazed and those that are not, Clarke said.

“This would tend to indicate grazing is not the reason for any failure to attain (riparian management objectives) in streams found on the challenged allotments,” he said.

While the environmental groups have pointed to evidence of deterioration along portions of some creeks, they haven’t shown “watershed level” and “landscape-scale” failures to live up to fish-recovery objectives, Clarke said.

The “creek-specific observations” by environmental groups aren’t enough to “successfully rebut” the Forest Service’s interpretation of the data, he said.

“Finally, many of the creek assessments plaintiffs point to as evidence of a failure to attain (riparian management objectives) actually show improving or stable trends,” the judge said.

The Forest Service’s decision to authorize grazing on the eight allotments was based on “reasonably gathered and evaluated data” related to fish recovery strategies mandated under the National Forest Management Act, he said.

Clarke also dismissed the plaintiffs’ Endangered Species Act arguments, ruling they were moot because future grazing approvals will rely on a new consultation among federal agencies on the two fish species.

The environmental groups’ claims of National Environmental Policy Act violations were likewise dismissed because the plaintiffs hadn’t fully “exhausted” administrative challenges against grazing plans, the ruling said.

New information that’s emerged about threats to the fish and their critical habitat doesn’t rise to the level of requiring additional environmental analysis of grazing, Clarke said.

For example, although the U.S. Fish and Wildlife Service has reached the “alarming” conclusion that shortnose suckers face a “high degree of threat of extinction,” this finding doesn’t influence the Forest Service’s assessment of grazing, he said.

“While FWS concluded that significant threats to shortnose suckers’ viability remain and thus that their chance of extinction is high, it did not identify grazing as one of those threats; in fact, it made no mention of grazing at all,” the judge said.

http://www.capitalpress.com/Oregon/20170311/judge-dismisses-lawsuit-against-grazing-on-eight-oregon-allotments

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Bundy: FBI agents under investigation for possible misconduct in LaVoy Finicum shooting

Bundy Battle - Nevada, Bureau of Land Management, Constitution, CORRUPTION, Courts, CRIMINAL, LaVoy Finicum, Lawsuits

PNP comment: This is not too bad of an article for the typically-left OregonLive. But, it does need to be remembered that Ryan Bundy still has a bullet in his arm and he was sitting in the passenger seat of the vehicle. It is now believed that LaVoy left the vehicle to draw FBI sniper fire away from those who were in the vehicle. — Editor Liz Bowen

By Les Zaitz |

The Oregonian/OregonLive
Email the author
on March 08, 2016 at 10:10 AM, updated January 26, 2017 at 12:15 PM

BEND – An FBI agent is suspected of lying about firing twice at Robert “LaVoy” Finicum and may have gotten help from four other FBI agents in covering up afterward, authorities revealed Tuesday.

The bullets didn’t hit Finicum and didn’t contribute to his death, but now all five unnamed agents, part of an elite national unit, are under criminal investigation by the U.S. Justice Department. Inspector General Michael Horowitz is leading the independent inquiry.

The remarkable disclosure came as a team of local investigators released findings that two state troopers shot Finicum three times in the back during the chaotic scene at a police roadblock Jan. 26. One bullet pierced his heart, an autopsy showed.

A prosecutor ruled the fatal shooting was legally justified, saying state law allows use of deadly force when officers believe a person is about to seriously injure or kill someone. Finicum kept moving his hands toward a pocket that contained a loaded handgun. Although he was shot from behind, Finicum had a trooper in front of him armed with a Taser who was thought to be in danger.

Robert ‘LaVoy’ Finicum’s death is investigated: What was found

Finicum, 54, an Arizona rancher, was one of the leaders of the Jan. 2 takeover of  the Malheur National Wildlife Refuge near Burns.

Investigators gave no details to explain why the one FBI agent, a member of the Hostage Rescue Team, wouldn’t report the two shots. They also didn’t indicate what his four colleagues did to warrant investigation other than saying it was related to conduct after the shooting.

“The question of who fired these shots has not been resolved,” said Greg Bretzing, special agent in charge of the FBI in Portland. The federal agency is cooperating with the inspector general’s investigation, he said at a news conference.

The revelation is certain to inflame suspicions about Finicum’s death and shake confidence in the FBI, which came under intense fire for botched handling of violent sieges at Ruby Ridge in Idaho and Waco, Texas.

Some supporters have claimed Finicum was shot while surrendering, that he was unarmed and that he was shot nine times. The sheriff in neighboring Grant County, Glenn Palmer, described the police operation as an “ambush.”

Finicum’s family said in a statement a month ago that he was “executed in cold blood” and accused police agencies of deliberately misleading the public about what happened. His widow, Jeanette Finicum, didn’t retreat from that stance after watching the news conference.

“My husband was murdered,” she said in a statement.

The attorney for Ammon Bundy, the occupation’s now-jailed leader, found the  news of the FBI shots troubling.

“I’m going to have to go back and reconsider all the conspiracy theories that I’ve written off,” said the lawyer, Mike Arnold.

Investigators had planned to release police reports, interview transcripts, photographs, the autopsy report and new video to allow the public to evaluate the police findings in Finicum’s death.

But they ended up releasing only one video and 19 photographs, citing the new criminal investigation for the change in plans. They also withheld the names of the involved troopers and FBI agents, saying they’ve tracked up to 80 threats against them, mostly on social media.

Document: Text of announcement of findings

The shooting happened after police stopped a Jeep and a pickup carrying the key figures of the occupation along a remote stretch of U.S. 395 north of Burns.

Finicum was driving the truck that carried carried Ryan C. Bundy, 43, Ryan W. Payne, 32, Shawna Cox, 59, and Victoria Sharp, 18. In the Jeep behind them was driver Mark McConnell, 37, Brian D. Cavalier, 44, and Ammon Bundy, 40, the public face of the occupation. They were bound for a community meeting 100 miles north of the refuge in John Day.

Officer statements and cellphone video taken by Cox from inside the truck showed that Finicum repeatedly ignored police orders, first at the traffic stop and then after he crashed trying to elude officers. He nearly ran over an FBI agent before stalling in a roadside snowbank.

What happened in just seconds after that crash could lead to criminal charges against the FBI agents.

Cox’s video showed that one shot hit the truck’s left rear passenger window as Finicum stepped out. At the time, Finicum appeared to have his hands at least at shoulder height.

http://www.oregonlive.com/oregon-standoff/2016/03/oregon_standoff_fbi_agents_und.html

 

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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