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Browsing the blog archives for November, 2010.

Western water rights come under new attack

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Western water rights come under new attack 

 Government officials renege on promises, use slippery approach to laws

 By BRANDON MIDDLETON and DAMIEN SCHIFF

Klamath Falls Herald and News

Guest Commentary

November 28, 2010

 “ , , everywhere …,” begins a famous line by Coleridge.

 

   Today, in the American West, assaults on water rights can be seen practically everywhere.

 Government regulators and environmental activists lead the attacks, and farmers and ranchers are the immediate targets. But the negative impact threatens to ripple throughout the economy.

 After all, economic development in the West has always depended on respect for water rights. Water is scarce in much of the region, so certainty in water rights is a vital incentive to use this precious commodity productively, for the greatest good.

 More and more, however, government officials are sowing uncertainty by reneging on longstanding promises or taking a slippery approach to laws or contracts that water users have relied on for generations.  

 For example, is the Obama Administration suddenly downgrading how farms, ranches, and urban communities are treated by federal reclamation projects? Water agencies throughout the West are worried, after the Bureau of Reclamation told an irrigation district in Grant County, Wash., that its water fees will no longer purchase any rights in the facilities that those fees help finance.

 Ownership interest

 Historically, local water agencies that contract with federal projects (such as the Central Valley Project in California) have received ownership interest, over time, in the reservoirs, canals, and other infrastructure built on their dime. By backing away from this principle, federal officials send a disturbing message: Water contractors will be relegated to the role of tenants   instead of partners in reclamation programs. It’s the feds who will call the shots — unilaterally and arbitrarily — on who gets water, and how much.

  The danger in giving unchecked control to federal bureaucrats can be seen in California’s San Joaquin Valley in recent years. In a controversial strategy to rescue a tiny fish — the Delta smelt — that is on the Endangered Species Act protected list, water for farms and cities was cut dramatically, fallowing hundreds of thousands of acres in one of the nation’s agricultural heartlands.

 These cutbacks, by federal officials, started even before the new threat to water contractors’ property interests. But they show how water flows could be turned on or off, unpredictably, if local agencies are squeezed out of any ownership role in federal reclamation projects.  

 State officials in California are also doing their part to dilute the rights of water users. Twisting the Fish and Game Code in a radical new way, the California Department of Fish and Game has begun to require a cumbersome permit process for people who seek to use their water rights in traditional ways.

 Civil and criminal penalties are threatened for farmers and ranchers if they don’t start asking the state’s leave before using water — even when they are drawing from rivers   or streams that have been irrigating their acreage for a century or more in some cases.

 New legal campaign

 Meanwhile, a new legal campaign by environmentalist lawyers could end up sinking some ranches and farms, financially, by curtailing use of groundwater. The aim is to regulate groundwater under an archaic theory called public trust.

 The effect would be to rob water users of their rights — declaring a public trust over their water — without compensation. This is a breathtaking stretch, legally, because the public trust concept has always been associated with coastal waters and beaches, not inland areas and certainly not groundwater. In a practical sense, it amounts to a scorched earth campaign against many agricultural operations.

 Siskiyou County rancher Tom Menne predicts that the public trust crusade could “devastate” his ranch’s profitability, throwing its 25 employees out of work.  

  All three of these threats to water rights — from the Bureau of Reclamation, the State of California, and overzealous environmentalists — are being challenged in court. We’re proud to say that our organization — Pacific Legal Foundation, a watchdog for property rights and limited government — is in the thick of all the litigation to defend water rights.

 The cause should interest everyone concerned about returning our region, and our country, to economic health. The attack on the productive, job-creating use of water calls to mind the second half of Coleridge’s famous line:

 “Water, water everywhere, nor any drop to drink.”

 Brandon Middleton and Damien Schiff are attorneys with Pacific Legal Foundation.  Headquartered in Sacramento, PLF describes itself as a legal watchdog organization that litigates nationwide for limited government, property rights and a balanced approach to environmental regulation.

 

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Bishop Blasts Secretary Salazar’s Proposed New Fracking Regulations

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FOR IMMEDIATE RELEASE                                                                CONTACT: Melissa Subbotin
Tuesday, November 30, 2010                                                    O-202.225.0453  C-202.510-8641
 

Bishop Blasts Secretary Salazar’s Proposed New Fracking Regulations

 WASHINGTON – Today, Congressman Rob Bishop (R-UQ), Western Caucus Chairman and Ranking Member of the House Natural Resources Public Lands Subcommittee, released a statement in response to Secretary Salazar’s announcement that the Department of Interior is considering imposing new bureaucratic hurdles on our nation’s domestic energy producers:

 State regulatory agencies are more than capable of carefully monitoring and managing energy development and water quality within their boundaries.  There is no reason the federal government should impose additional regulations and red tape on our nation’s domestic energy producers.  Today’s proposal further illustrates this Administration’s regressive energy agenda.  Here again, Secretary Salazar seems to be choosing to hinder energy production in favor of new and restrictive policies that inhibit domestic energy production that leads to a greater reliance on foreign and often unstable supplies of energy resources.  It’s disappointing that for every step forward, Secretary Salazar insists on taking two steps back.”

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Amend while the iron is hot?

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Here’s how it went down on the Federalist Society stage at the group’s recent national convention:

The liberals urged caution and judicial modesty. Trust the people and their elected representatives, they said; elections have consequences, and the political process is where policy should be made, not the courtroom.

The conservatives, on the other hand, called for revolution. Fight intrusive federal laws in the courts, amend the Constitution, form interstate compacts to defy laws from Washington, and – better yet – demand a constitutional convention.

Read More:http://www.washingtonpost.com/wp-dyn/content/article/2010/11/28/AR2010112803865.html

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California Department of Fish and Game, the Art of the “Take”

1602 Permit for stream bed, Dept. Fish & Game, POW, Salmon and fish, Scott River & Valley, Threats to agriculture, Water rights

November 19, 2010

Preface:

California Assemblyman Jim Nielsen, a staunch defender of Property Rights, hosted a meeting at his Redding headquarters at the request of Water Right Owners from Siskiyou County.

Water Right Owners were represented by Scott Valley Protect our  Water,   Siskiyou County Water Users Association,  and two prominent Shasta Valley Ranchers.

The government contingent included Niel Manji, Northern Region Director of the California Department of Fish and Game, and additional CDFG officials.  Some individuals present wish their names be withheld.

11/19/2010  Meeting between CDFG and Siskiyou County Water Owners

The California Department of Fish and Game, citing the listing of the Coho Salmon, is attempting to gain control of surface water rights in California.

The “Watershed-Wide Permit Process” is the vehicle for this attempt to usurp adjudicated water rights.

Mr. Neil Manji, Northern Regional Director, California Department of Fish and Game, stated that he has been aware of the program since it’s inception.

The “Program” was conceptualized in 2001 (four years prior to
the listing of the Coho Salmon).

The CDFG claims there was landowner participation in the initial stages of the program.   Mr. Manji stated, “initial meetings with landowners in CDFG’s Redding office included, Gary Black (Siskiyou RCD), Don Howell (Siskiyou RCD), Gary Stacy (CDFG  N. Region Director)”.

The Siskiyou RCD has no legal authority to represent Water Right Owners in Siskiyou County.

Thomas Pease, a Scott Valley Water diverter , addressed landowner participation, with frustration.  He spoke about the threats that landowners received during informational meetings as well as threats which were received by mail.

The “Program” was initially intended to protect diverters against
Incidental Take citations.

According to DFG Section 2087a, landowners do not require this protection.

DFG 2087a provides protection against accidental take of a listed species during routine and ongoing agricultural activities (paraphrased).

The CDFG, with help from Cal-Trout and the Natural Heritage Foundation, has reconstructed the program to include LSAA and CEQA provisions.

A prominent Shasta Valley Rancher, formerly of the Shasta RCD said, “We tried to negotiate with Fish and Game.   No matter what we brought forward to them, the answer was always, No!”

It was stated that “Private “Projects” with permits dated prior to April 5, 1973 are exempt from compliance with CEQA (CEQA section 15261).

The vast majority of our Water Rights predate CEQA.

CEQA is not retroactive.

The CDFG intends to force Water Owners into a “Project,” because CEQA only applies to “Projects.”

A “Project” is an activity which requires, public funding and/or participation with public agencies, (CEQA section 21065).  CEQA
does not apply to individuals, involved in routine and ongoing activities.


The California Department of Fish and Game is well aware of these facts.

DFG Code Section 1600 is the vehicle with which the CDFG intends to coerce Water Right Owners into a “Project”.

The Lake and Stream bed Alteration Agreement (DFG Code Section 1600) was originally enacted in 1961.  Section 1600, specifically refers to future “Projects” such as  bridge building or gravel mining.

For the first time in sixty years, “opening a head gate would be considered a “Project”.  A “Project”, which, if successful, places The Department of Fish and Game in direct control of Surface Water Rights in Siskiyou County.

CDFG  MANUFACTURED the ”Watershed Wide Permit  Process”.

CDFG claims the “process” is voluntary.

Assemblyman Nielsen said, “Even if you give up access to the water right, you might as well have given up the Water Right
itself.”  Assemblyman Nielsen further said, “ I have accumulated a lot of testimony and this Program does not look voluntary to me.”

Another prominent Shasta Rancher, formerly of the California Cattlemen Association, said, “ Adjudications in the Shasta Valley go back to 1930, some as far back as 1870.   If we sign, we will be giving up Adjudicated Water Rights.”

Rights in the Scott Valley date back to 1850s.

The ”Watershed-Wide Permit Process” is being imposed ONLY in Siskiyou County.

The “Watershed Wide Permit Process” is illegal and has never been submitted for APA review.

Water Right owners are in full compliance with the law.

No further permits are required.

One of the Shasta Water Owners, discussed the secret negotiations that took place between the RCD and CDFG.  These secret negotiations were used to construct the “Water shed-Wide Permit Process”.

The RCD was advised by Siskiyou County Counsel, not to share details of the negotiations with diverters.  County Counsel said that sharing with diverters would be like sharing with the World.

The Shasta Rancher, went further to say that CDFG was not capable of keeping its word.

MEMORANDUM  OF  UNDERSTANDING

He used, as an illustration, the MOU signed between himself and Gary Stacy, (Mark Stopher’s predecessor). This MOU was promptly rejected by Mr. Stopher, although the MOU constituted a signed agreement.  This Shasta ranchers opinion is that the Permit Contract was open ended and vague.

“CDFG would not keep its promises in any case.”  This gentleman’s   Attorney advised him not to sign the Contract.

He opted to sign only to, “Get the Monkey off my back.”

I  asked Lt. Larry Harris, CDFG Mt. Shasta Enforcement, if he was familiar with the Penal Code which addresses the threat of prosecution to gain signatures on a contract?

Lt. Harris was also asked if he was familiar with PC 146b which says, “ Every person who, with intent, to lead another to believe that a request for information is being made by the State, a county or other governmental agency, when such is not the case … is a misdemeanor.”

Lt. Harris did not seem familiar with PC 146b.

Assemblyman Nielsen asked Director Manji whether there was some mechanism through which the landowner’s objections could be examined by the CDFG.


Mr. Manji replied that “the Department would explain why it is doing this, but would not alter the Program.”

Manji went on to say,  “Its the fourth quarter and we are at the goal line and the time for negotiation is past.”


“We have a plan, right or wrong.”

I pointed out that this program had never received APA review.

Assemblyman Nielsen expressed dismay that CDFG did not  attempt to receive APA review.

Assemblyman Nielsen further stated that, “the Program would
possibly constitute an underground regulation.”

Another one of our Shasta Valley ranchers, asked Mr. Manji, if “Fish and Game was going to pay for the water they were planning on taking.”

Mr. Manji replied, “I don’t know.”

Director Manji, was reminded that there was no money in the Water Trust to pay for confiscated water.

I reminded Director Manji of the California Constitution and its
prohibition from taking private property without its value being first ascertained by jury and the sum paid.  Manji replied, “ Where we are going is to protect the fish.”

DFG says that the rules have changed.

Mr. Manji went on to say,  “when you have a listed species, the rules change.”

I sincerely doubt the framers of the Constitution would agree with Manji.

David Reade said, “ Fish and Game should return to the time when cooperation with landowners was the norm. You were cooperating (with landowners) well into the listing.”

Mr. Manji replied, “Holding off on enforcement is cooperating.”

Additional items discussed, included,  site visits by armed teams of game wardens to coerce Water Right Owners into signing the contract.  There were no telephone contacts prior to the visits.

There were no warrants.

There was no probable cause for these visits.  The Officers did not inform the Water Owners of their option to gain permits outside of the “Program.”

The Officers simply threatened or implied prosecution if the Water Right Owner failed to sign up for the “Water Shed Wide Permit Program.”

This is Extortion.

The participation in this Extortion by a sworn peace officer
constitutes a Color of Authority Violation.

Mr. Manji has stated that the CDFG will “take” what water “they feel the fish need,” without regard for the Constitution of the United States or the Constitution of California.

I said  this is Extortion.

This is a violation of CEQA.

This is willful negligence by a state official with financial harm to the Water Right Owners of Siskiyou County.  This is nothing less than State sponsored confiscation of real property in the form of pre and post1914 Appropriative, and Adjudicated Water Rights.

One of the Shasta Ranchers said, “You are taking water, for gain, from one person and giving it to another.”

My Conclusions:

The Department of Fish and Game has constructed a project.

This project will continue regardless of, and in spite of, serious legal and moral violations.

The department  has no regard for the law and no regard for
the Constitutional rights to property.

Mr. Neil Manji, as well as CDFG enforcement branch, intend to continue to prosecute this project. CDFG intends to continue in spite of the Liability it brings upon the Department, the State, the  taxpayers or to themselves.

Mr. Manji says, “ The fish don’t have time to wait for the Constitution.”

Director Manji, after the expenditure of almost 100  million in taxpayers dollars, cannot define, one, single, positive impact upon the Coho Salmon.


NOAA Fisheries, has spent 140 million dollars in the Klamath Watershed, and cannot point out one, single, positive impact to the Coho.

The CDFG has invented a “Project,” in order to save a species, which they are clearly, not saving.  Are the citizens of this state, expected to pour billions of dollars down the dry hole of environmentalism?

When and how can this insanity be stopped?

Are the citizens of Siskiyou County expected to look the other way while the CDFG burns the Constitution, ignores the law, and terrorizes our families?

I am appalled, but not surprised, by this behavior.

It is  propagated by an environment where bureaucrats are left to impose fees and projects, upon the taxpayers with out regard to the law.   The outside interference by Environmental groups adds to the problem.

I was  not encouraged by what I heard at this meeting, nor was I
surprised by the attitudes of the California Department of Fish and Game.

We must remember that the citizens of this country are not the playthings of the government.

We do not surrender our sovereignty to agencies which are supposed to serve us.

We need not submit to every social and environmental experiment which is imposed upon us.

We live under the rule of law.

When the rule of law no longer applies to the government, then, at that very moment, the covenant between government and the people,  has been broken. We are free to resort to self help. We will take the course of action which preserves our Liberty and our Property.

Assemblyman Nielsen, I wish to personally thank you and your staff for your integrity and your willingness to help us to right this wrong.  The Founders counted on men of high moral character, to protect our country from attack by well meaning despots.

In you, sir, Liberty has a friend.

Please, keep up the good work and know that, we the people, will stand with you, for Liberty and the Constitution, no matter where that road leads.

Thank You,

Mark Baird
Vice President, Scott Valley Protect Our Water
Vice President Siskiyou County Water Users Association

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The truth about California Brett Arends’ ROI – MarketWatch

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California is a basket case. The Greece of America. Decades of crazy liberalism and runaway spending have crippled the economy. Wealth creators are fleeing in droves. The people left are spending themselves into rack and ruin. They can’t balance their budget, once again, so they are asking the rest of us for a bailout. And they even voted for Jerry Brown, a Democrat! It’s time we said enough is enough.

Read More:http://www.marketwatch.com/story/the-truth-about-california-2010-11-22?pagenumber=1

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Chris Dodd’s last act: ‘Control the people’

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The Democrats are doing everything they can before they lose power in the next election. They’re working on a plethora of environmental bills we’ve been fighting for years, things that we thought were dead

Read More:http://www.wnd.com/?pageId=200637

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Snowy day in Scott Valley on Nov. 27, 2010

Photos

Elk were out in Clint Custer’s field on our way home from he grocery store in Etna, today.  Well it was the one bull elk with a big herd of cows.

Pretty quiet on Etna’s Main Street all one-block of the business district.

Clint’s field facing north-east. It stopped snowing for a while.

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Greenhut: California an addict yet to hit bottom

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Californians are known for crafting new realities, but the financial markets are immune to Disney-like fantasies. Eventually, the fiscal self-destruction has to stop – and adults have to step in with an intervention to divert our state from its dangerous path

Read More:http://www.ocregister.com/opinion/state-277726-california-san.html

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Court considers key question in Klamath water case – WaterWorld

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The case is being closely watched by coastal communities, salmon fishermen, their families and others who depend on a healthy Klamath River for their livelihoods.

Read More:http://www.waterworld.com/index/display/article-display/articles/waterworld/environmental0/watersheds/2010/11/Court-considers-key-Klamath-questions.html

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Michelle Malkin » Giving Thanks for American Ingenuity

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Liberty, not “government vision,” yields innovation.

Read More:http://michellemalkin.com/2010/11/24/giving-thanks-for-american-ingenuity/

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