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The Road to The Bridge Sniper : Mile Marker 1

Michael Morris – In Focus

_thinking_forbiddenOK it happened. A lawyer contacted me today to tell me that I was “patently incorrect” regarding water law in posts prior to this one. So I ask for some details of my error. Rather than an answer to this basic question I get a question in return. I renewed my request for some details about the accusation that began this conversation. Then the “as a water law Practioner” “Mr. Morris are you a lawyer?” Now why would a guy go to the trouble of writing me that I’m wrong then refuse to give at least some explanation of his contention? Why indeed. Let’s first take tonight to take a simplified look at the claims and contentions that have led to the continual tragic fails for those that try this voodoo.

Much of what you will get from the faction I will call FuriosusLaw(TM) is based on a novel interpretation of the following that is as compelling and viable as any other Midway game of skill and chance..

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. – ARTICLE IV, SECTION 3

Their claim is that this clause prohibits ownership of land by the federal government popularized by a former NJ state court judge. Here are some excerpts from some suggested further reading.

The U.S. Constitution addresses the relationship of the federal government to lands. Article IV, § 3, Clause 2 — the Property Clause — gives Congress authority over federal property generally, and the Supreme Court has described Congress’s power to legislate under this Clause as “without limitation.” The equal footing doctrine (based on language within Article IV, § 3, Clause 1), and found in state
enabling acts, provides new states with equality to the original states in terms of constitutional rights, but has not been used successfully to force the divestment of federal lands. The policy question of whether to acquire more, or to dispose of any
or all, federal lands is left to Congress to decide – Congressional Research Service – Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal, and Retention (2007).

The primary constitutional authority for the management and control of this vast real-estate empire is the Property Clause. The exact scope of this clause has long been a matter of debate. Broadly speaking, three different theories have been advanced.

The narrowest conception, which can be called the proprietary theory, maintains that the Property Clause simply allows Congress to act as an ordinary owner of land. It can set policy regarding whether such lands will be sold or retained and, if they are retained, who may enter these lands and for what purposes. Under this conception, the clause confers no political sovereignty over federal landholdings. Unless one of the enumerated powers of Article I applies, such as the power to raise armies or establish a post office, political sovereignty over federal lands remains with the several states in which the land is located. – Heritage Foundation Essay – Thomas W. Merrill

So your choices at this time are to either accept that yes the feds can own property and act reasonably exposing the unreasonable by your reasonableness, seek a political change, start a revolution/cessation or start a little donation operation – oops.

This brings us to the almost talismanic UNITED STATES v. NEW MEXICO, 438 U.S. 696 (1978)  that magically somehow prohibits the feds from appropriating water for the use of wildlife and so forth. This Interpretationz(TM) is based on a little sleight of hand on the term “reserve” that expands the meaning to “ever use” or something similar. However the US Supreme Court in this case explained that term differently:

This careful examination is required both because the reservation is implied, rather than expressed, and because of the history of congressional intent in the field of federal-state [438 U.S. 696, 702] jurisdiction with respect to allocation of water. Where Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to the state law. 5 See California v. United States, ante, at 653-670, 678-679. Where water is necessary to fulfill the very purposes for which a federal reservation was created, it is reasonable to conclude, even in the face of Congress’ express deference to state water law in other areas, that the United States intended to reserve the necessary water. Where water is only valuable for a secondary use of the reservation, however, there arises the contrary inference that Congress intended, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator.

Congress indeed has appropriated funds for the acquisition under state law of water to be used on federal reservations. Thus, in the National Park Service Act of Aug. 7, 1946, 60 Stat. 885, as amended, 16 U.S.C. 17j-2 (1976 ed.), Congress authorized appropriations for the “[i]nvestigation and establishment of water rights in accordance with local custom, laws, and decisions of courts, including the acquisition of water rights or of lands or interests in lands or rights-of-way for use and protection of water rights necessary or beneficial in the [438 U.S. 696, 703] administration and public use of the national parks and monuments.” (Emphasis added.) 6 The agencies responsible for administering the federal reservations have also recognized Congress’ intent to acquire under state law any water not essential to the specific purposes of the reservation.

“Reserved” does not equal owned. It is a special designation meaning that the amount of water needed to do the purpose of the establishment of whatever was just taken – implied. The limitation is on the fiat taking of water incident to land reserved for some purpose. By its own dicta in the case the court is listing off specific circumstances where various agencies are specifically restricted to acquired water rights under state law. That means those rights for sale on the local realty site, a donation, or extortion. In that way the agency can supply water to other uses. There is a caveat and I will get to that in the 3/4 True section.

The upshot of the ruling in US v NM is that the feds can’t reserve water except for the purposes for which, in this case, the forest was created. It does not say the feds cannot use water to achieve some of the other uses piggybacked on the forests over the years, but rather that the feds cannot reserve water for those other uses. Then their question turns to those purposes:

No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use   and necessities of citizens of the United States;

That is what water can be reserved to accomplish.

In 1960, Congress passed the Multiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U.S.C. 528 et seq. (1976 ed.), which provides:

“It is the policy of Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in the [Organic Administration Act of 1897.]”

Water cannot be reserved for that, but there is nothing whatsoever to prevent acquiring rights to accomplish those goals.

Why none of this matters in the case of an EndangeredSpecies(TM) or, the turbo mode CriticalHabitat(TM) the taking can be a steamroller in the hands of the bungler, extremist or frustrated sociopath. That is an entirely different story as is the amazing corrupt science which, in an amazing coincidence, is a longstanding specialty of this site!

Here is the rant.

The main impediment to a peaceful solution is the quality of the forest management. Well that and the snake oil wagons – another day. Certain personnel are dedicated committed people that understand the forest on a “part of it” level that actually includes humans that don’t spend their idle time watching Southpark. Then there are these arrogant underachievers for whom a day’s work seems to be incomplete without some “I’m the FEDERAL GOVERNMENT” grasping for that pin-on authority dubiously wielded in the name the peasants financing his power trip unencumbered by consideration beyond his own perception of right and wrong and how to interact with citizens. If Darryl Issa wants to investigate a scandal with legs I’ll be happy to fill some seats with witnesses to daily arbitrary pettiness on the part of these near dictatorial jackasses that are mismanaging the forests and making a career of self gratification. This a huge danger and it is a huge waste of money to place idiots in positions of authority, no matter how small,  based on attrition or lack of qualified interest in this posting. What self respecting human being wants to spend his day with some possessed extremist of any variety? OK, I’m done ranting. Those of you working in resource management that are not out of control leeches sucking the life’s blood out of the region know I’m not talking about you.

All those for a peaceful resolution District wide say Aye!

Those opposed, learn a trade fast.