The ESA is ... Turning energy into solid waste
(Note: This is an outstanding article written by a clear-eyed patriot lady
from the Pacific Northwest who stands up with her rural neighbors wherever
the need arises. America is blessed to be the home of "Pathfinder!")
By Katherine Van Tuyl, Interim Secretary
Pacific Region, People for the USA
Bureaucracy is a process for converting energy into solid waste. So goes a
bumper snicker I spied recently, which concisely summarizes the needless
waste of the Klamath Basin, its people, communities and economy in 2001.
The Klamath Basin in southwestern Oregon is a vast, mostly flat, mostly arid
area of fertile soil and marshes surrounding the Klamath River, which carries
water from the Cascade Range to the Pacific. The Klamath Project, overseen by
the Bureau of Reclamation, includes about 233,625 acres of land in Oregon and
Its facilities include three major storage reservoirs, including Upper
Klamath Lake, 7 dams, the Lost River diversion channel, five major pumping
plants and 40 smaller pumping stations, and more than 1,400 miles of canals
and drains. Construction was authorized under the Reclamation Act in 1905,
with costs of construction to be repaid through the sale of water rights to
homesteaders on the project lands.
In 1905, California and Oregon ceded lake and marshland to the federal
government specifically for conversion to agricultural use under the Newlands
Reclamation Act. Principal crops include potatoes, alfalfa, cereal grains,
onions, and hay. The annual precipitation averages about 14 inches, and the
growing season is about 120 days. In a typical year, the tri-county Klamath
Basin produces $100 million in hay, grains, and vegetables. This, in turn,
produces an additional $250 million in economic activity in the various
agriculturally-dependent communities throughout the region. Livestock herds,
many now liquidated, were worth another $100 million in replacement costs.
Never mind; Congress will send relief.
On April 4, 2001, a federal judge ruled that the BOR's dam operations in the
Klamath Basin violated the Endangered Species Act, which protects Coho
salmon. The judge's ruling and a USFWS Biological Opinion released on April 6
that called for increased lake levels to protect shortnosed and Lost River
suckerfish, prompted the Bureau to cut off irrigation water to 90% of the
irrigated farmland in the Basin.
There was no warning, and no discussion. Never mind the fact that many Basin
farmers hold grant deeds giving them land and water "in perpetuity," signed
by U.S. Presidents; awarded by a grateful nation to veterans of World War I
and World War II. Never mind the U.S. Constitution expressly states " ... nor
shall any person ... be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without
There are so many things wrong with the Klamath Basin crisis, it's hard to
know where to start. Traditionally, irrigation starts April 1. Last year's
sudden cutoff found many fields already planted, awaiting water, then left to
die and blow away. By May, much of the Basin's valuable topsoil had blown
away, creating dustbowl conditions which spawned an eight-vehicle pileup and
many other problems. Fortunately no one was killed. Sheep died in the fields
for lack of water and pasture. Farm workers hit the road to find work,
leaving their wives, children and homes behind.
The Bucket Brigade brought 20,000 people together, according to police
estimates; the largest protest rally in Oregon's history, in a peaceful
demonstration of moral outrage and civil disobedience. Appeals to local,
state and national governments, and repeated reopening of the headgates by
frustrated citizens brought media attention and federal law enforcement, but
no relief, and no justice. A delegation of farmers and ranchers took their
case to Washington, but were told over and over, by elected Representatives
and Senators, and high-level Interior Department officials, that their grant
deeds were worthless. Inquiries about the rule of law and constitutional
prohibitions against such government actions were answered with, "It's not
that simple." The White House had already sent word there was nothing they
could do. Never mind; it's for the greater good. Trust us!
The Endangered Species Act was intended to save species from the depredations
of humans and restore them to viable populations. Instead, it has cost
America billions of dollars in direct costs and lost opportunities for
economic growth. It violates property rights, has "saved" not one species,
and to top it all off, the ESA expired on September 30, 1992; yet Congress
continues to fund it.
Another fact -- the irrigation projects of the Basin support rich, productive
farmland and the Tulelake Wildlife Refuge, which together have created
habitat for, and healthy populations of over 430 species of wildlife. The
court-mandated water shutoff ignored the needs of this wildlife, including
some threatened and endangered species, such as the American Bald Eagle.
Never mind that the USGS/NAS "Nonindigenous Aquatic Species" for Coho
provides a map showing Klamath inland Coho as "introduced," as early as the
1920s. It also references the UC (University of California at) Davis
Information Center for the Environment (ICE) fish distribution site, which
shows a map for native Coho which completely excludes the Klamath Basin.
Never mind that "Population Genetics of Klamath Basin Suckers," written by
Gregory J. Tranah and Bernie May clearly states " ... individuals of several
of the populations (of four taxa of suckerfish) cannot absolutely be
identified ... ," and " ...genetic and morphological evidence suggests that
recent or historical introgressive hybridization may have taken place ...
(Miller and Smith 1981; Harris 1991; Harris and Markle 1993.)"
Never mind record runs of Coho salmon, which spawn in tributaries, not
rivers. Never mind USFWS's own records which associate high suckerfish kills
with high lake levels. Never mind the lack of conclusive counts of
As a constitutional device, eminent domain involves Congressional
consideration of the proposed condemnation, validation of conditions of
necessity, notice to the property owner, determination of just compensation,
and authorization of an appropriation bill, (in other words, "due process")
all before the subject property is relinquished. Dr. Roger Pilon, Director of
the Center for Constitutional Studies at the Cato Institute, points out the
power of eminent domain does not provide carte blanche for government to do
as it pleases. "There is no private right of eminent domain, nor could there
be a public right either, for, again, individuals cannot give to the state,
rights they do not first have, to give. What justification the power of
eminent domain enjoys, then, must be taken from considerations of necessity,
which are compelling only in exceptional cases and never from considerations
Roger Marzulla, a Washington, D.C., attorney who specializes in water rights
and Endangered Species Act law, told Klamath Basin farmers that the loss of
irrigation water and property values amounted to a "taking" of personal
property under the Fifth Amendment of the U.S. Constitution. In a related
action (Tulare Lake Basin Water Storage District v. United States), the
United States Court of Federal Claims (April 2001) agreed with Marzulla,
saying the federal government was "certainly free to preserve the fish; it
must simply pay for the water it takes to do so." But, never mind.
In the Klamath Basin, some have said the government chose to practice inverse
condemnation. In breach of contract with many irrigators, and outright theft
from others, lack of water rendered the associated farmlands without real
value. In such a case the property is constructively condemned, and just
compensation is still due the property owner, notwithstanding the lack of
formal eminent domain proceedings.
In actuality, the government appears to have chosen adverse possession in an
attempt to acquire title to property that BOR rules and regulations state
belong to the irrigators. According to Black's Law Dictionary, Sixth Edition,
"In order to establish title in this manner, there must be proof of
nonpermissive use which is actual, open, notorious, exclusive and adverse."
I'd say that just about sums up the government's behavior last summer; but,
Marzulla told irrigators "the Klamath Basin looks like Tulare case No. 2." In
October of 2001, he filed a Fifth Amendment takings of the farmers' water
rights by agencies of the federal government. The suit states, "As a direct
and proximate result of the acts of defendant [the United States Government],
plaintiffs and the landowners they represent have been damaged in an amount ?
estimated to be in the range of $1 billion." If the court again agrees with
Marzulla, how many Klamath Basins can the American taxpayers afford? Never
Roger Marzulla served as an assistant attorney general under former President
Ronald Reagan and was Interior Secretary Gale Norton's boss while working for
the Mountain States Legal Foundation. They remain close, personal friends.
But addressing a rally in Klamath Falls, Marzulla said public resource
management agencies are not interested in preserving species, but controlling
land and water resources "as a means of controlling how you people live your
Last year Secretary of the Interior Gale Norton requested the National
Academy of Sciences to review the biological opinions issued by the U.S. Fish
and Wildlife Service and the National Marine Fisheries Service about last
year's operations of the U.S. Bureau of Reclamation's Klamath Project. In a
report issued earlier this month, the NAS determined there was "no sound
scientific basis" for the government's decision to withhold water from the
Klamath Basin irrigators.
The Competitive Enterprise Institute conducted a poll on the Endangered
Species Act in August of 1995. It found strong support for ESA reform; much
stronger than anything yet proposed by Congress. 11% supported the ESA as is,
which regulates private land use without compensating landowners for their
losses. 37% supported compensation for "any loss" incurred by landowners as a
result of the ESA's regulation of private property. 35% supported the
adoption of a non-regulatory, incentive-based approach to species
"That 72 percent of those polled believe private landowners should not be
made to suffer any uncompensated losses under the ESA is significant," said
Ike Sugg, CEI's fellow in land and wildlife policy. "That 35 percent of them
believe that even compensated takings are inferior to not regulating private
property at all, is astounding." "The current Endangered Species Act is a
disaster for both people and wildlife," he said. "This poll shows Congress
lags far behind the public's support for real reform."
Conservation efforts must be based on the best possible science. Listings
must be made subject to current, factual information, with all data
peer-reviewed, and open to public inspection. Currently the ESA imposes
burdens and penalties on landowners when identified species or critical
habitat is discovered on their property. Failing to recognize
constitutionally protected private property rights, the ESA gives landowners
no incentive to harbor endangered species. It places the burden on the backs
of individuals, rather than society as a whole. The ESA must be reformed and
voluntary measures to protect species encouraged. It must consider the social
and economic impacts that listings create. It must not endanger human lives.
Only then will the faith of the public in decisions by its government be
It is time to mind; lest we become the home of the flea, and the land of the
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