dumping into and pollution of the nation's "navigable waters," rivers, harbors, canals, etc. In a 1975 decision (Natural Resources Defense Council V. Callaway), a Washington, D.C. district judge ruled that federal jurisdiction applied beyond navigable waters to any wetlands that might remotely feed into such rivers and harbors. But even that did not cover "isolated wetlands" with no connection to "navigable waters"-like the puddles in your backyard after a heavy rain. Nevertheless, since 1975, jurisdiction has been expanded entirely by fiat and court interpretation to cover that definition in the EPA manual-water 18 inches down. The fig leaf for this judicial and executive imperialism is Article 1, Section 8, paragraph 3, of the Constitution, which gives Congress the right Forbes September 2, 1991 "to regulate commerce... among the several states." To assert this power on isolated and local wetlands, the EPA and the Army Corps of Engineers engaged in such creative flights of fancy as declaring ducks and geese "interstate waterfowl." This led to what some call the "glancing goose test," which determines that an area is a wetland if an interstate goose pauses to consider it. In a brutal display of naked power, the EPA and the Department of the Army plunged ahead in December in their "Wetlands Enforcement Initiative," designed to bring 24 highvisibility defendants like Paul Tudor Jones to justice. The Dec. 12, 1990 memorandum asked all regional administrators to produce a "cluster" of new cases to be announced in an April "first 'wave' of publicity... to provide an early deterrent to potential violations which might otherwise occur during the 1991 spring and summer construction season." But on Apr. 19 a high-visibility case blew up in the government's face. James Allen and Mary Ann Moseley, Missouri farmers, had built a perimeter levee to keep their Mississippi Basin farm from flooding. The government declared the area to be wetlands of the United States, sued the Moseleys for violations of the Clean Water Act and sought fines of $25,000 a day for as long as the violation was in effect. But the Moseleys are members of the American Agriculture Movement, a progressive farm organization that has joined the mainstream farm groups in opposing the extension of the definition of "wetlands" and supporting the Private Property Rights Act. AAM's Fayetteville, Ark. lawyer, John Arens, has a record of beating the government in court-and he did it again. When Arens was not allowed to bring in his own "expert witnesses," he minced up the government "ex perts" by demonstrating the capricious nature of the so-called wetlands law. He asked one EPA expert if it were not true that, were he to play baseball on a diamond built on hydric soils and went into the batter's box and scuffed his cleats, and then knocked the resulting dirt off them, back onto the field, he would be in technical viola tion of the Clean Water Act? "When he (the so-called expert] was forced to answer yes, I looked at the jury and I knew we were on our way!" Arens said. "But what really convinced the jury the government had no case was when it discovered that the government prosecutors had no law!" "While the jury was deliberating, they kept sending out to the judge for copies of the 'wetlands law.' When the judge sent them federal regulations, they sent back and asked for the law. When the judge sent them the Clean Water Act, and said this was all the law he had to give them, they [the jury] decided the government had no case because it had no jurisdiction." More setbacks awaited the powergrabbing bureaucrats. In January 1989 then Assistant U.S. Attorney General Stephen Markman had a memorandum prepared on a big wetlands case the Justice Department was prosecuting. The memorandum demonstrated, with dozens of citations, the flimsiness of the government's wetlands policies, concluding: "The Corps and the EPA appear to have circumvented the Constitution's requirements... and the federal district and circuit courts have not corrected them." The courts have apparently been paying attention. And so the battle has been joined. On the one hand are the wildlife-atany-price people. On the other, people who think that environmental policy ought not override property rights. The environmental extremists have made their intentions clear. In 1975 poet Gary Snyder won the Pulitzer Prize for his radical call for an "ultimate democracy [in which] plants and animals are also people." He wrote that they should "be given a place and a voice in the political discussions of the humans.... What we must find a way to do... is incorporate the other people... into the councils of government." A few years later, in 1980, a leading ecologist, Joseph Petulla, said, "The Marine Mammal Protection Act [and] the Endangered Species Act [embody] the legal idea that a listed nonhuman resident of the U.S. is guaranteed, in a special sense, life and liberty." 109 Of course, the Constitution says nothing about the rights of trees, snakes, owls and fish. Which may be why, back in 1973, Reilly's task force essentially called for the repeal of the takings clause of the Fifth Amendment: "Many [judicial] precedents are anachronistic now that land is coming to be regarded as a basic natural resource to be protected and conserved.... It is time that the U.S. Supreme Court re-examine its precedents that seem to require a balancing of public benefit against land value loss... and declare that, when the protection of natural, cultural or aesthetic resources or the assurance of orderly development are involved, a mere loss in land value is no justification for invalidating the regulation of land use [italics added]." "A mere loss in land value..." In that "mere" resides a philosophy that questions the values of private property and individual freedom. But after years of having things pretty much their own way, people who think like Reilly are getting a real fight. Idaho Republican Steve Symms, who leads the fight in the Senate for 112 the protection of property rights, says: "We should adopt a policy of no net loss of private property." Since the federal government already owns some 40% of U.S. land, Symms argues that it ought to be willing to swap some of its 730 million acres in order to obtain privately owned land that is environmentally sensitive. If, say, the National Park Service wants 50,000 acres to provide more protection for Shenandoah National Park, it can ask the Forest Service or Bureau of Land Management to sell to private citizens a like amount to finance the acquisition. Such a policy of no net gain in federal lands was introduced this summer in the House in legislation drafted by Representative Bill Brewster, Democrat from Oklahoma. Do we really want the federal government owning even more of the country, whether through outright purchase or through limitations on land use? Free-market environmentalists like R.J. Smith of the Cato Institute argue that more govern ment ownership and control would actually harm the environment. He says: "Ecological devastation... invariably accompanies too much government ownership of land. You don't have to look just to Eastern Europe for confirmation. You need only examine the condition of most of the Bureau of Land Management inventory of properties, or remember what the Park Service allowed to happen at Yellowstone." But the zealots won't give up. On Oct. 1 the EPA's regional office in Chicago awarded a grant of $50,000 over three years to the Sierra Club's local "Swamp Squad," Squad," which amounts to an unofficial policing of the environment. These vigilantes spy on developers and other land and property owners to report potential wetland violations. The EPA press release quoted Dale Bryson, the regional director of its water division: "This grant will allow them to continue their valuable work in a more vigorous way." The Senate has served notice that it thinks some of this "valuable work" has already gone too far. By all the evidence, many of the American peo ple would agree. Forbes September 2, 1991 JUNE 29, 1995. 1 Hon. ORRIN HATCH, Attn: Kathleen Re: Comments on the Omnibus Property Rights Act Thank you for the opportunity to comment on this proposed legislation. I have been extensively involved in assisting irrigation districts on Bureau of Reclamation projects for the past 15 years having worked with 26 irrigation agencies in Utah, Washington, Idaho, Nevada, California, New Mexico, Wyoming, Montana, Nebraska, Kansas and Texas. In this work, I have researched the original Reclamation Act of 1902 and subsequent supplementary acts along with Congressional reports and applicable court decisions with regard to the land, property and contractual rights of the water users. My findings are that the United States contracted to sell water rights to the water users on Reclamation projects. Sections 5 and 8 of the Reclamation Act of 1902 refer to the "sale" of water and state that water rights are "acquired" by the water users. All subsequent acts such as the Acts of August 9, 1912, August 26, 1912; August 5, 1914; January 25; 1917, May 15, 1922; May 25, 1926; August 9, 1939; July 2, 1956; June 21, 1963; and Reclamation Reform Act of 1982 either specifically recognize or otherwise preserve the principle of sale of water to the water users. In addition, Supreme Court decisions such as Ickes v. Fox et. al. (1936) and Nebraska v. Wyoming (1944) state that the United States is not the owner of the water, but that the water is owned by the water users. Specific language for Nebraska v. Wyoming (1945) reads (italic type for emphasis only): *** The appropriations [of water] under state law were made to the individual landowners pursuant to the procedure which Congress provided in the Reclamation Act. The rights so acquired are as definite and complete as if they were obtained by direct cession from the federal government. Thus even if we assume that the United States owned the unappropriated rights, they were acquired by the landowners in the precise manner contemplated by Congress My review of the proposed Omnibus Property Rights Act triggered a review of just recently proposed rules published in the Federal Register Vol. 60, No. 63, April 3, 1995, Department of the Interior, Bureau of Reclamation, 43 CFR Parts 426 and 427, entitled "Acreage Limitation and Water Conservation Rules and Regulations". The agency's analysis of takings (page 16940) is entirely inadequate, erroneous, and misleading with regard to the rights of water users. The published analysis states (italic type for emphasis only): * Because districts and individual water users hold only contractual rights to services provided by Reclamation and the proposed rule would have only a de minimus impact on the value of any Constitutionally protected property right if such right exists, it has been determined that this proposed rule does not present a significant taking. This statement indicates that the contractual rights of the water users are only in relation to services provided by Reclamation. The analysis fails to recognize the property rights of water users on over 40 million acre-feet of water in the West and summarily "takes" this water as federal property through the rules and regulations process. The value of this water is staggering (on the order of several trillion dollars) and the implications of the above statement are astounding. They are in direct conflict with existing law and contracts. This example shows that the Omnibus Property Rights Act is badly needed. Federal officials must be made to recognize and protect the property and contract rights of the people. I have also reviewed the comment letters of Steven L. Hernandez and Ronald K. Christensen transmitted to your office and fully concur with and recommend their comments. I appreciate and support your efforts in the passage of this bill. Sincerely, HARVEY L. HUTCHINSON, P.E., R.C.E. Senator ORRIN G. HATCH, STEVEN L. HERNANDEZ, ATTORNEY AT LAW, Las Cruces, NM, June 28, 1995. Thank you for the opportunity to comment on this legislation. Our office represents numerous irrigation districts formed under Reclamation Law in New Mexico, Idaho, California, Nebraska, Washington, Montana and Nevada. We are also involved in several stream adjudications involving the United States Bureau of Reclamation (Bureau) and their claims to water rights. Not the least of many of my clients problems has been the effect of the Endangered Species Act on the operation of these irrigation projects and their delivery of water to constituents. My comments come from the point of view of an irrigation district formed under Reclamation Law and how this legislation would affect them. Keep in mind that in many states, the water right for the project is held in the name of the United States and the United States has been reluctant to agree that they are not the owners of the water rights. In fact, after the Madera case in California, the Bureau has taken the aggressive position that water users only have a contingent contract right to receive water and that the Bureau can reallocate project water for other uses such as fish and wildlife and wetlands without compensation as part of water delivery contract renegotiations. In other instances, the Bureau is claiming that it will take an act of congress to convey a water right to a district that has repaid all of its construction costs to the United States because there must be specific legislation to convey any property owned by the United States. Since many of the reclamation projects throughout the west have not had the project water right adjudicated, the Bureau is free to claim that their actions involving project water do not amount to taking, therefore, this legislation must be flexible enough to cover the many situations that these irrigation districts face throughout the west. As part of an effort to find water for the ESA and wetlands, the Bureau has also proposed project water conservation regulations to take water away from existing uses by dangling "discretionary funds" in the face of many districts that had relied on miscellaneous revenues for operation and maintenance purposes. Similarly, the United States has insisted on storage rights in projects in Idaho in order to meet flow requirements for Salmon. With this background, I offer the following suggestions. SECTION 203 If "private property" is intended to include "the right to use and receive water", wouldn't it be clearer if the language were "the right to appropriate, use, and receive water under federal or state law, or based upon contract." It bothers me that the definition of private property is so broad. For example, aren't users of project water under Warren Act contracts "private property" owners under the definition even though under their contracts and the law, there is clearly no property or ownership? SECTION 204 AND SECTION 502 In the part of these sections that states that "private property has been physically taken for public use", isn't this universe condemnation under the Fifth Amendment's takings clause already? Why is it here in this bill if "taking" under this new bill does not include condemnation? In the part of these sections that states "and any other circumstances * * there is a fundamental difference between the words "and" versus "or". Under statutory construction using "or" means that you get compensation for any of the categories named. Using "and" means that all the categories listed must be applicable before the property owners get compensation. I am unclear as to what "its action substantially advances the state's purpose" means. Is this a defense which may be raised by the United States against the property owner? Should this be "government's purpose"? If so, a definition of "government" would be helpful, because it would clarify that any claim brought against the "government" would be only against the United States, federal agencies and instrumentalities etc. Instead of the state irrigation district that also deals with project water. 1 SECTION 404 In that part of this section where "An agency shall not issue rules that require uncompensated takings", isn't this the intent of the entire bill? in other words, isn't the purpose of the bill to protect against indirect/regulatory takings? The word "require" sounds like there has to be express language in the rule to this effect. Wouldn't a better choice of words be "that result in uncompensation takings"? SECTION 508 The "statute of limitations" says the owner has 90 days to file a claim “after final agency action". This language is troublesome because we do not know what is "final agency action." Where does the property owner file his claim? With the offending agency? Is this a notice of claim provision to the agency or a statute of limitations? Section 406 says you have six years to file a lawsuit. This section appears to be an administrative procedure section to file with the agency first, before you can file a lawsuit (exhaustion of administrative remedies). It's not really clear that this is the intent. In addition, isn't the binding arbitration section in conflict with Section 301? I know that this is a very quick review of the legislation, but I hope it helps and please do not hesitate to contact me if you have any questions. JUNE 28, 1995. Hon. ORRIN HATCH, Re: Comments on the Ominibus Property Rights Act Thank you for the opportunity to comment on this proposed legislation. It is badly needed and I would like to commend Senator Hatch and all those who have and will contribute to the drafting and passage of this bill. The right to property is fundamental to our liberty and must be protected to ensure our continued freedom. Government intrusion on property rights is eroding our rights and our freedom. This bill will do much toward correcting this problem. I have several suggestions and concerns that I believe should be considered. So you will understand my concerns and my perspective, I work for a large international engineering consulting firm as a water engineer and have been working in the water resources field for many years. I have had much experience with Bureau of Reclamation projects throughout the West and am currently working on a doctoral dissertation dealing with the rights and interests of water users in these projects. I am finding, both in my work as a private consultant and in my research, that the rights of water users on Reclamation projects are in many cases, being disregarded and ignored by Reclamation officials. The property rights of the water users appears to be one of the least of the concerns of many of these officials. For example, when the manager of the Midvale Irrigation District complained of how new rules and regulations were diminishing the rights held by the water users for many years on the Riverton Project in Wyoming and that it was difficult to determine how to manage the project and respond to Reclamation's requirements, the Reclamation official responded that it was rather simple. All you need to remember is one word: "compliance". That is quite a response from a federal official in the land of the free! Obviously, there must be a greater incentive and requirement for federal officials to respect the property rights of private citizens. I will first make specific comments on the language of the various sections of the Act and then will offer a suggestion for addressing an additional very important property right concern with regard to the recent use of the public trust doctrine by the courts in both water and land law. SECTION 203 In defining property, I would suggest that wording "the right to use and receive water" be expanded to read "the right to appropriate, use and receive water under federal or state law, or based upon contract". I think this would be more definitive and inclusive of water rights on Reclamation projects. SECTION 403 I suggest that the taking impact analysis include a requirement for disclosure of potential disputes and claims by property right holders including disclosure of the opposing arguments raised by the property rights holders, an objective analysis of these arguments and the potential legal costs of the government in defending the |