Businessman

​Politically Active and Aware

Gregory C. Duerden

PublicLands,Air,Water  -       

[There is significant background and material as part of this issue paper, so please read to the end.  It might be educational on a couple of levels.]


     We, as a nation, have had a lot of propaganda fed to us, by the government and by environmentalists as well as the liberal establishment, about several MISCONCEPTIONS.  One is Public Land, another is the government control of "CLEAN Air and Water."  Another is that the Federal Government can do more for us in these matters, "out of the goodness of their hearts" .  .  .  but the truth is something quite different.


     But, first a bit of background.  Governmental power is suppose to be used for good things and only one bad thing (war - but even that is suppose to be only a defensive war), right?  Afterall, government derives it powers from the consent of the people, or is suppose to be that way.  If governments do things which are not good, the people can rise up and tell them "Stop that!"   But it has been a long time since anyone told the government to stop ANYTHING.


    More often, States have told the Federal Government to STOP this or that.  But, who is more powerful, the States or the Federal Government?   Who formed the Federal Government? ...  the States did!  The people formed the States and the States formed the Central Government  (1787 in the Constitutional Convention, in Philadelphia - the delegates were from the various States  . . .  remember? Prior to that we had the Article of Confederation).


    The Federal Government IS a creation of the US Constitution.  This document gives the Federal Government certain "enumerated powers" - inotherwords, the things they can do are limited AND LISTED . . . and nothing else, because all powers NOT enumerated are left to the States and the People.  So, where in the Constitution is the power given to the Federal Government to have Parks, Monuments, Historical Sites?  How about controlling the Environment's Air or Water?   It ISN'T there!!  


    By what authority did the Government jump into these areas?  They passed a law!    AND NO ONE TOLD THEM THEY COULDN'T - afterall, Congress passed it and they are elected officials of the people!  Right?  Well,  not quite!   Depending on your interpretation of the Constitution.


     We will delve into the loose and the strict interpretations but by the strict viewpoint, those laws could be deemed 'Unconstitutional' and neither the Supreme Court nor the President contested them (they specifically have the constitutional mandate to do that, it is part of the check and balance system)!


   With that said, let's look at each concept (land, air, water) in more detail.

 


     PUBLIC LANDS


    Where did the federal government get the idea that they owned all the land?  Actually it goes back to the time of the Articles of Confederation, shock!  Back then the Dept. of the Treasury was selling land and surveying sections of land for sale West of the Appalachians, east of the Mississippi.    The authorizing legislation was passed by the Convention of the Confederation (1785) and was called, appropriately,  Land Ordinance of 1785. This lead to the Northwest Ordinance of 1787 and laid the foundation of the Homestead Act of 1787.


     Land was sold so that the government would have money to survive. In order to sell the land, surveys needed to be conducted which lead to the Land Ordinance of 1785.  Revolutionary soldiers were given 'Land Bounties' for their service, and it took until the early 1800s to fulfill that promise, just in time to survey the lands of Ohio, the Northwest Reserve, and more on further west, including the Louisiana Purchase, etc.


     The predecessor to today's Bureau of Land Management (or BLM) was called the General Land Office (or GLO), created in 1812. [BLM which doesn't just stand for "Black Lives Matter," but the OTHER 'BLM,' was created in 1946 in a merger of the GLO and the 'US Grazing Service,' established in 1934, when both became part of the new Dept. of the Interior, which came into existence in 1946.]  In 1946 they were responsible for administering 264 million acres of "Public Lands" in federal ownership - today BLM administers 247.3 million acres, or about 23 million acres less today than in 1946.


     In the 19th Century the GLO had lots of fun 'administering' the Homesteading in the Western United States, with Land Rush's in Oklahoma and the Midwest, which moved all the way to California, Oregon, Washington. 


     But the Government doesn't just have the BLM supervising "the ('their') 'Public' land."  There is also the Forest Service, Park Service (which handles the Parks and Monuments and a few historic sites), Indian Lands, Defense Lands, Bureau of Reclamation Lands, Fish and Wildlife Lands, etc.


    Actually, the Constitution doesn't mention the land issue for the Federal Government, except for the 10 square miles which make up the District of Columbia - which is the only land the Government is Constitutionally authorized to own.


(Further on we will look at recent Public Lands proposed legislation and the flaws and strengths of each.  We will also comment on our belief  that the too strict definition of "wilderness" is also the definition of  "elite-only" lands and NOT Public Lands. But first, we will look at the background of the Clean Air and Clean Water history.)



Clean Air


The legal authority for federal programs regarding air pollution control is based on the 1990 Clean Air Act Amendments (1990 CAAA). These are the latest in a series of amendments made to the Clean Air Act (CAA). This legislation modified and extended federal legal authority provided by the earlier Clean Air Acts of 1963 and 1970.


The 1990 CCA & CCAA are United States federal laws designed to control air pollution on a national level. They are some of the United States' first and most influential modern environmental laws, and one of the most comprehensive air quality laws in the world.


The Air Pollution Control Act of 1955 was the first federal legislation involving air pollution. This Act provided funds for federal research in air pollution. The Clean Air Act of 1963 was the first federal legislation regarding air pollution control. It established a federal program within the U.S. Public Health Service and authorized research into techniques for monitoring and controlling air pollution. In 1967, the Air Quality Act was enacted in order to expand federal government activities. In accordance with this law, enforcement proceedings were initiated in areas subject to interstate air pollution transport. As part of these proceedings, the federal government for the first time conducted extensive ambient monitoring studies and stationary source inspections.

The Air Quality Act of 1967 also authorized expanded studies of air pollutant emission inventories, ambient monitoring techniques, and control techniques. Then ​the enactment of the 1970 CAA resulted in a major shift in the federal government's role in air pollution control. This legislation authorized the development of comprehensive federal and state regulations to limit emissions from both stationary (industrial) sources and mobile sources.


CLEAN WATER


     During the 1880s and 1890s Congress directed the US Army Corp of Engineers (USACE) to prevent dumping and filling in the nation's harbors, and the program was vigorously enforced.  Congress first addressed water pollution issues in the Rivers and Harbor Act of 1899, giving the Corps (USACE) the authority to regulate most kinds of obstructions to navigation, including hazards resulting from effluents.  Portions of this law remain in effect, including the so-called Refuse Act (Section 13).  In 1910 "should either be made compulsory or at least encouraged everywhere in the United States.   


    Notable legislative predecessors include: 

                  Public Health Service Act of 1912 expanded the mission of the Public Health Service to study                                                                problems of sanitation, sewage and pollution

                  Oil Pollution Act of 1924 prohibited the intentional discharge of fuel oil into tidal waters

           

​     The Federal Water Pollution Control Act (FWPCA or just the Clean Water Act or CWA) was first enacted in 1948, but took its modern form when it was completely rewritten in 1972.  Major changes have been introduced, via amendatory legislation in 1977 and 1987.  


    The Clean Water Act does not directly address groundwater contaminaiton, as this is covered in the Safe Drinking Water Act, Resource Conservation and Recovery Act, and the Superfund Act.


    Contamination of drinking water occurs not only in the source waters but also within the distribution system.  Sources include naturally occurring chemicals and minerals (arsenic, radon, uranium), local land use practices (fertilizers, pesticides, concentrated feeding operations), manufacturing processes, and sewer overflows or wastewater releases.


     Health implications of water contamination include gastro-intestinal illness, reproductive problems, and neurological disorders.  Infants, young children, pregnant women, the elderly and people with compromised immune system (due to AIDS, chemotherapy, or transplant medications) may be suseptible to illness from some contaminants.  


     Some waters are protected, under the CWA are waters with a 'significant nexus' to 'navigable waters,'  however, the phrase 'significant nexus' remain open to judicial interpretation and considerable controversy.  The  '72 law frequently uses the term 'navigable waters,'  but also defines the term as 'waters of the United States, including the territorial seas.' Some regulations interpreting the law have included water features such as intermittent streams, playa lakes, prarie potholes, sloughs and wetlands as 'water of the United States.' In the 2006 case Rapanos v United States, a majority of the Supreme Court held that the term 'waters of the United States":

                                            "... includes only those relatively permanent, standing or

                                             continuously flowing bodies of water 'forming geographic

                                             features' that are described in ordinary parlance as "streams[,]

                                             ... oceans, rivers, [and] lakes."


      The CWA created a new requirement for technology-based standards for point source discharges.  EPA develops these standards for categories of dischargers, based on the performance of pollution control technologies without regard to the conditions of a particular receiving water body.  The intent of Congress was to create a 'level playing field' by establishing a basic national discharge standard for all facilities within a category, using a "Best Available Technology."


      Also the 1972 act authorized continued use of the water quality-based approach, but in coordination with the technology-based standards.  After application of technology-based standards to a permit, if water quality is still impaired for the particular water body, then the permit agency (state or EPA) may add water quality-based limitations to that permit.  Water quality standards consist of four basic elements: 1) Designated uses; 2) Water quality criteria; 3)Antidegradation policy and 4) General policies.


     Agricultural stormwater discharges and irrigation return flows were specifically exempted from permit requirements.  Congress, however, provided support for research, technical and financial assistance programs at the U.S. Department of Agriculture to improve runoff management practices on farms.


     Stormwater runoff from industrial sources, municipal storm drains, and other sources were not specifically addressed in the '72 law.  EPA declined to include urban runoff and industrial stormwater discharges in the National Pollution Discharge Elimination System (NPDES) program and consequently was sued by an environmental grooup.  In 1977 the D.C. Circuit Court of Appeals ruled that stormwater discharges must be covered by the permit program.


     In the Water Quality Act of 1987 ('87 WQA) Congress responded to the stormwater problem by defining industrial stormwater dischargers and municipal selparate storm water systems (often called "MS4") as point sources, and requiring them to obtain NPDES permits, by specific deadlines.  The permit exemption for agricultural discharges continued, but Congress created programs and grants, including a demonstration grant program at EPA to expand the research and development.


    Congress passed another bit of legislation in 2014, called the Water Infrastructure Finance and Innovaiton Act of 2014 (WIFIA) to provide an expanded credit program for water and wastewater infrastructure projets, with broader eligibility criteria than the previously-authorized revolving fund under CWA Title VI.  Pursuant to WIFIA, EPA established its Water Infarastructure and Resilience Finance Center in 2015 to help local governments and municipal utilities. design innovative financing mechanisms, including public-private partnerships. Congress, as they are want to do, amended the WIFIA program in 2015 and 2016.


      Both Clean Air and Clean Water are administered by the Environmental Protection Agency (EPA), so let's look at that agency.       

     In Dec. 1970 The Environmental Protection Agency (or EPA) was started operation after brought into existance by President Richard Nixon's Executive Order.  It was started to "protect human health and the environment by writing and enforcing regulations based on laws passed by Congress." The administrator of the EPA, Scott Pruitt, is given cabinet rank, although the EPA is not a Cabinet department but it is a huge agency ($8.13 Billion annual budget) with more than 15,000 employees.  It is headquartered in Washington, D.C., with regional offices for each of the ten (10) regions and 27 laboratories.


     The EPA conducts environmental assessments, research, education and enforcement of the laws and regulations; and is responsible for maintaining and enforcing national standards under a variety of environmental laws, in consultation with state, tribal and local governments.  It delegates some permitting, monitoring and enforcement responsibilities to US States and federally recognized tribes.  The agency also works with industries and all levels of government in a wide variety of voluntary pollution prevention programs as well as energy conservation efforts.


    Two of the 18 programs which the EPA administers are Air Quality and Water Quality [Drinking Water, Water Sense, National Pollutant Discharge Elimination System - that last was ironically appropriate when in 2015 EPA contractors breached a holding pond and 'accidentally' released more than three million gallons of pollutants (lead and arsenic from a Colorado mine, the Gold King Mine) spilling them into Cement Creek and the Animas River, before going into the San Juan River - which runs from Colorado into Southeastern Utah - and ending up in the Colorado River  near the north end of Lake Powell]. 


     More than half of EPA's employees are engineers, scientists and environmental protection specialists; other employees include legal, public affairs, financial and information technologists.  In 2017 President Trump proposed a 31% cut to the EPA's budget (from the 2016 budget of $8.13 Billion to the 2017 proposed budget of $5.7 Billion) and to eliminate a quarter of the agency jobs.


     One of the problems with the EPA's Water and Air programs is the Constitutional questionWhere in the Constitution is the authorization or authority for such an agency on the Federal Level?  None of the enumerated powers mention "Environmental Protection."  


                                                                   Loose vs Strict Interpretations

                                                         of the U.S. Constitution


      Part of the issue is the two different interpretations of the Constitution which has been going on since the 1790s - e.g., in 1791 Alexander Hamilton was in favor of a loose interpretation while Thomas Jefferson was in favor of a stricter interpretation.  In letters to President Washington, each expressed their views:

                                                                                                                                                                                                                                                                                                                "I consider the foundation of the Constitution as laid on this ground:

                                                                                          that 'all powers not delegated to the United States, by the Constitution,

                                                                                          nor prohibited by it to the States, are reserved to the States or to the

                                                                                          people . . . '  To take a single step beyond the boundaries this specially

                                                                                          drawn around the powers of Congress is to take possession of a bound-

                                                                                          less field of power, no longer susceptible of any definition."                   

                                                                                                                    -  Thomas Jefferson's letter to Geo. Washington in 1791


"[Hamilton accepts] the republican maxim, that all government is a                                                                                                delegation of power [by the people] .  .  .  [but admits that, in his view of]                                                                                      implied powers [those not mentioned in the Constitution] are to be                                                                                                            considered as delegated equally with the express ones [those specifically                                                                                                  granted in the Constitution].  

     ". . .  it is objected, that none but necessary and proper means are to

employed [the language of the catchall clause at the end of Article 1,

Section 8, of the Constitution]; and the Secretary fo State [Jefferson]

maintains, that no means are to be considered as necessary but those

which the grant of power would be nugatory [non-existent or unusable]. ... 

   " It is essential to the being of the national government, that so erroneous

a conception of the meaning of the word necessary should be exploded."

              -  Alexander Hamilton's letter to George Washington, 23 Feb 1791 

-  [Hamilton as usually is more verbose than Jefferson; but Hamilton's argu-

ments won over Pres. Washington on this question proposing a national bank

with Washington signing the legislation.  And Hamilton's 'looser' interpret-

ation has become the basis for the 'implied powers' school of Constitutional

thought.]


   -------------------------------       GUESS WHERE  I  FALL  in My Interpretation preference  ----------------------------------------------





    NOW, we will look at specific issues covering these areas:  LAND, Air, Water  .   .  .  


LANDS-

                                                        RECENT PUBLIC LANDS PROPOSED LEGISLATION

                                                                   FOUR (4)  COMPLICATING FACTORS:

                        Bishop/Chaffetz Public Land Iniative  (PLI) ,

                                                                 BEAR'S EARS & Esacalante Grand Staircase,

                                                                                                           Greater Canyonlands,   and

                                                                                                                                                    Utah's Public Lands Lawsuit


[and the Jurassic National Monument Land Bill, sponsored by Congressman John Curtis - announced May 9, 2018]


          Public Land policy in Utah got complicated in 2017, to say the least. Bishop and Chaffetz released their Public Lands Initiative (PLI) with the clear attempt to short circuit the possible Presidential designation of the San Juan County's BEARS EARS region as a national monument through the Executive Order Process – and Trump's re-sizing of an Obama error in getting it too large and unweildly, AND having a lawsuit over the Utah attempt to get all of Utah's Public Lands back under state control.

Each of these FOUR (4) issues hold various strong points and their own faulty and almost fatal flaws. Let's look at each one, individually:

       The entire PLI is obviously a political end-run to try to short-circuit the Presidential intention of designation of the Bears Ears region as a National Monument – it didn't gain enough traction in Congress to stop Obama and didn't gain enough support to stop Trump's down-sizing either. The problem, locally, is the 1996 Exec. Order of Pres. Bill Clinton – all three under supposed authority of the Antiquities Act. All three were “out of the blue,” with No warning at all to anyone IN the State of Utah. Be it the Grand Staircase-Escalante National Monument, which “still stings,” some 20+ years later, for many residents, citizens and elected officials (both county and state level). Yanking, again, on that already “raw nerve' would not win any Fed 'good feelings' - and might get them the proverbial (or literal!) 'punch in the jaw' along with anyone associated or connected to them!

       The strongest point for Chaffetz have gathered and consulted, along with the “fast-tracking of this legislation” in Congress – but it didn't happen in time to sideline the designation nor the re-sizing a year later.

       Designation of a new National Monument, as already mentioned, was NOT welcomed by a significant number of the citizens and very few of the elected officials in Utah. Some traditional Tribes (traditional Navajos, Hopi and a few So. Utes) favor the designation as purported 'protection' of their 'sacred lands.' They complained, after the down-sizing, that the land would not be as 'protected' yet that was 100% wrong. At no time did the land leave the Federal Land designation. It was still as protected before as after the designation AND down-sizing. So the down-sizing only changed the designation of National Monument for a few less acres, the rest stayed in BLM responsibility.

       The concept of an alleged 'buffer zone' around the entirety of Canyonlands, coming out as the “Greater Canyonlands,” was to eliminate the possibility of ANY form of development from Hwy. 191 (about 10 to 20 miles east of Canyonlands) and significant lands north, south and west of it as well. A total of several million acres of a “No Development Zone.” So much for 'private property rights!!'

       Utah is pursuing an attempt at 'asking' the Federal Government to cede the Federal Lands back to the State of Utah. They have gone as far as planning and filing a lawsuit. One glaring item they have yet to address is the Utah State Constitution, which states:


                                       “The people inhabiting this State do affirm and declare that they
                                         forever disclaim all right and title to the unappropriated lands
                                         laying within the boundaries hereof, and to all lands lying with
                                         in said limits owned or held by any Indian or Indian tribes, and
                                         that until the title hereto shall have been extinguished by the
                                         United States, the same shall be and remain subject to the dispos-
                                         ition of the United States.”

                                                               (Article III, Second paragraph, Utah State Constitution)

         Granted, that could and should be amended by a vote of the people, BUT . . . until that is done and actually accomplished, there remains a MAJOR Constitutional hurdle to ANY FURTHER PLANS, whatever!

      Therefore, we would propose to place the amendment before the people of Utah at the earlliest convience to 'get it done' and over. Apparently, WE trust the people more than the 'RED COATS' who think because they are elected they are in power, forgetting WHO it was who voted them IN and that those self-same voters can “VOTE THEM OUT!!”


[HINT: we also need a 'recall by petition' option, which we don't have in the Utah Constitution, by the way!       It IS in the U.S. Constitution but not mentioned (pro/con) in the Utah State Constitution. BUT the reality of this option won't be easy to get passed and through the Legislature – those voting for it, AND those who are afraid of it, will both realize this could be used to kick them out of office, and that is the current crop's greatest fear!!  FYI]


          AFTER the Constitutional question is settled, THEN we can address the question via simple solution of Nullification of BLM, Forest Service policies/regulations/directives etc. within the State of Utah - which is a single piece of legislation (quick and easy if you have the backbone to stand up to the Feds! Which our
RED COAT administration and legislature neither have a backbone nor the 'cahones' to even attempt! [see out Federal Nullification Issue Paper] - Nullification is a purely Constitutional solution to Federal Overreach rather than the expense, time and excessive effort of a lawsuit [which you will likely LOSE anyway]. Sometimes you can't get permission OR forgiveness so you just have to stand up for what is RIGHT and CORRECT and also stand up to the BULLIES!)


                                                                                                ---------------------------------------


May 2018 UPDATE:   Public Lands are NOT Wilderness! - Sorry John!!
The public lands bill, being co-sponsored by Congressman John Curtis, “makes permanent and expands wilderness study areas … in the San Rafael Swell” of Emery County. The bill moves 436,643 acres of wilderness “study areas” into permanent wilderness status and adds 141,343 more acres to a total of 577,986 acres. 

By BLM definition, written by BLM-in-house environmentalist, to be wilderness you can only see one other human being in a 24-hour period - or one other person per day.  You hike in and leave nothing behind, so you have to be physically fit and of an age to walk in and out with everything you need on your back! Then you have to have enough 'disposable income' to afford the equipment, time-off AND the travel expenses!  That kind of "elite-ism" is only one flaw of this bill!! THE GENERAL PUBLIC IS LOCKED OUT OF THESE PUBLIC LANDS by a) physical limitations, b) economic limitations, and c) motivated to want to get out into the 'wilderness.' Therefore, “Public Lands are NOT Wilderness! Wilderness is (by our definition) 'Elite-Only' Lands NOT PUBLIC Lands.”

The bill's other FAILURE is that it does not even try to solve the right-of-way (RS2477) fight but passively allows the litigation to continue over access. Can a bill be passive-aggressive??

A few good things in the bill: it expands Goblin Valley State Park by 10,000 acres, leaving the new addition as federal land; trades out 100,000 acres of school trust lands in the area for lands, allegedly, “to provide more benefit to the Utah School and Institutional Trust Lands Administration's permanent trust fund for school beneficiaries;" and it establishes the 2,453 acres Jurassic National Monument.

SUWA and the environmental lobby want 900,000 more acres of wilderness – as their 'elite-ist' agenda has already started promoting with TV spots. BUT, we agree with part of what they say, “This is NOT a good bill!!” 

In addition, the author of the bill is a Congresswoman and Congressman from Hawaii, with the brand new UTAH Congressman the 'Johnnie-Come-Lately' signing on as a co-sponsor. What makes her think she knows more about the San Rafael Swell than those who live in Emery County?? THAT is the real problem with Congress mucking up the land issues of this nation. Someone thousands of miles away, even IF they have ever even visited or seen the area they are 'legislating,' can stick their foot into the issue; why let a 'stranger' decide?? What about those who know the land, the issues, the lay of the land? IS THAT LOGICAL? That is definitely NOT PUBLIC LANDS, that is land policy by “fiat” not public policy. 




WATER  - 


   We in the west know about droughts.  Utah has had to endure several doughts, 7, 8, 10 year doughts.  AND we know we will face MORE ahead of us, if we do NOT realize WE CONTROL out fate in this regard.  We sit at the headwaters of several river systems.  We know what good water is and what it takes to keep water pure.

    On Droughts:  we don't have an issue anywhere like CAPETOWN, SO. Africa, does.  They are limited to only 13-gallons of water per person per day.  The Average American uses 100 gallons a day.  We think we are in trouble ( e.g., CA) but WOW!

     

       Shouldn't WE do more for others??  Like So. Afrioca?  Not Foreign Aid, but just helping our brothers and sisters, our fellowman and fellow-women!!



    We also know there are issues of pollution, dumping and areas which have been impacted by old mining methods (i.e., American Fork Canyon) and storage of radioactive materials (Moab's 'capped' uranium dump at the river bank of the Colorado, leaking/leaching radiation and contamination into the downstream water ALL THE WAY TO THE GULF OF MEXICO!!  What's wrong with that picture? A HELL-OF-A-LOT!!).  There is a bunch for the state's to do, but why is the FED-Gov's EPA sticking their noses into it??

 

      While the EPA  literally caused pollution in Gold King Mine incident the real issue isn't IF the EPA's Water Quality systems are good or not, but why isn't it being done by the individual states??  The Constitution says NOTHING about Water Quality, Air Quality or the Federal Government supervising it  .  .  . refer to the 10th Amendment (despite the well meaning legislation)!!   


    Cutting back on the EPA budget - if not cutting it out entirely - will help cut the Federal spending and the out of control spending - thereby lowering Federal taxes, right??  It should!!


    

    

     


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 If any of the above makes sense to you, if you see the need to have Constitutionally correct solutions to issues like Public Lands, which should be common sense, and NOT Federal OVER-reach but it takes both backbone and 'cahones' to undertake which our current crop don't seem to have . . .(the Feds need to realize there is NO Constitutional Authority for the Park Service/Forest Service/BLM OR the Federal ownership of land outside of D.C. (by a strict interpretation); yet, even if there was,they have abused the priviledge and everyone of the State's with Parks, Monuments, Forests, Homesteads, any or all - the Feds should be obligated to return the 'Federal Lands' back to each and every state to manage and protect and deal with , A.S.A.P , where the States can do it better, cheaper, and with more knowledge of the unique features and needs than ANY Federal Office ever thought of being; AND we would urge you to go to the polls and VOTE THE “RED COATS” OUT!! Then, AS A Solution:      Vote on Nov.6, 2018 for Greg Duerden on the Independent American Party (IAP) ticket for Utah's Third Congressional seat.





                                                                         Thank you for all your support



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