June 1999 by Robert Sanregret
Summary1. More Hearings Requested on Multi-Billion Dollar Federal Land Acquisition Programs. Broad requests and demands have been made for further Congressional hearings on the federal land acquisition bills and on the Clinton/Gore "Lands Legacy Initiative."
2. Tidal Basin Beaver Designated for Endangered Species Protection. A request has been made "...to provide immediate emergency protection for the Tidal Basin Beaver," and for its unique Critical Habitat in the District of Columbia.
3. BLM Plans Issuance of "3809 Regulations" Despite Substantial Opposition. Congressional moratorium proposals languish; and the BLM plans to issue Final 3809 Rules October 1, despite public opposition.
4. Hidden Law—RS-2477 Public Roads and Rights-of-Way. Any public road or right-of-way that existed at any time from 1866 to 1976 exists today, unless that road has been closed by Congress.
An array of Congressional land acquisition and trust fund billsrepresent a major change in the traditional position and policies of the Federal government relative to private property. Land use controls have long been treated and interpreted as being functions of the States, with certain limited Constitutional exceptions, and the Federal government has never engaged in such an aggressive program of buying up private property to add to the Federal Domain.
When you write or discuss the proposed federal land acquisition trust fund programs with your members of Congress, it is best to identify the specific bill or program with which you are concerned. The "Lands Legacy Initiative" is the Clinton/Gore program of Federal land acquisition, and the Administration is aggressively seeking Congressional support through one or more of proposed and currently pending Congressional Bills, including the following: H.R. 701 by Rep. Don Young (R-Alaska); S-25 by Senators Mary Landrieu (D-LA) and Frank Murkowski (R-Alaska); H.R. 798 by Rep. George Miller (D-CA); S.446 by Senator Barbara Boxer (D-CA); and S.532 by Senator Feinstein (D-CA).
It is no coincidence that the primary supporters of the federal land acquisition bills are from the oil-producing states (Alaska, Louisiana and California) that will be granted hundreds of millions of dollars as off-budget entitlements under these bills with which those states will then fund their own state agencies. There are many deals and compromises proposed and in the works by the proponents seeking support for these pending land acquisition bills. These bills do not lend themselves to compromise; an important caveat is just because a group or a member of Congress suggests or implements a change in a bill provision, does not mean that they must then support that bill.
Any communications to bill sponsors and to your own members of Congress should also be sent to the members of the committees—if you don't know the names of the Committee members, just call the Committee offices and they will be happy to provide the names of the 50 members of the House Resources Committee, Don Young, Chairman (202)225-2761; and the names of the 20 members of the Senate Committee on Energy and Natural Resources, Frank Murkowski, Chairman (202)224-4971. Also, when you contact members of Congress or the Committees, ask them to send you copies of the pending bills in which you are interested.
2. Tidal Basin Beaver Designated for Endangered Species Protection. The U.S. National Park Service (NPS) just recently removed an entire family of Tidal Basin Beaver from their natural habitat in the Tidal Basin in Washington, D.C., after these beaver allegedly damaged some cherry trees. This was accomplished by the NPS without the required consultation of the U.S. Fish and Wildlife Service (FWS), and without any opportunity for public comment.
Representative Helen Chenoweth (R-ID) has proposed that this unique Tidal Basin Beaver be given special protection by FWS; and she has requested immediate designation of the living area of this distinct beaver population as "Critical Habitat" under the Endangered Species Act (ESA).
Rep. Chenoweth further observed that the NPS appears to have wrongfully, without authority, displaced all of the Tidal Basin Beaver from their natural habitat. She has asked the FWS to prepare for the introduction of an experimental population of this species in its natural habitat citing that it is likely, and highly probable, that this distinct beaver population has developed unique characteristics in its many untold years of living in the brackish water of the Tidal Basin.
A response and finding in the matters of the species protection and Critical Habitat have been requested by July 14. Chenoweth has also asked that the Tidal Basin Beaver be evaluated and given the same consideration and treatment as the Gray Wolf and Grizzly in Idaho and in surrounding states where the FWS contends that it is bound by law to reintroduce the wolf and the grizzly into their natural habitats. Although these beavers may have damaged some Japanese Cherry Blossom trees, the damage is much less than the destruction, livestock death and economic cost caused by the Gray Wolves reintroduced in the Western States. Any animal species found inside the Washington Beltway should have no less protection than those in the West. And further, as to this beaver population, Chenoweth commented:
"These beaver are indigenous to this area. This is their natural habitat. These beaver are also an important part of the ecology in the District of Columbia and its unique environment ... [whereas] the cherry trees surrounding the Tidal Basin are not even native to the District of Columbia, as these trees were imported from Japan."
Rep. Chenoweth made these points in a Petition to the Director of the U.S. Fish and Wildlife Service, and in a formal official statement in the Congressional Record on April 12. Chenoweth's comments bear out some valid points related to certain instances of Federal agencies' selective enforcement and nonenforcement of the ESA. You may recall the arrest of a farmer in California when he accidentally killed a kangaroo rat with his tractor—and the farmer was arrested and his tractor was permanently impounded. Regarding that incident, it is notable that beavers are also members of the Rodentia species, that includes rabbits, squirrels and rats.
3. BLM Plans Issuance of "3809 Regulations" Despite Substantial Opposition. The Bureau of Land Management (BLM) plans to issue Secretary Babbitt's Revised Final 3809 Surface Management Regulations (43 CFR, Subpart 3809) on October 1, which is the earliest possible time for issuance under the specific Congressional Moratorium imposed by Congress in the 1997 Appropriations Bill.
One of the primary reasons that Congress delayed Secretary Babbitt's issuance of the final regs is that the National Academy of Science (NAS) is doing a study on the subject that will be completed by July 31, and Congress wanted to provide a reasonable time for review and comment on the study by the public, by Congress, and by the Interior Secretary. The official position of the Bureau of Land Management (BLM) is that they will "...fully consider the NAS Study in the Final Revision of the 3809 Regulations." Secretary Babbitt is also aware of his personal obligation under the U.S. Mining Law to "...carry out this policy...to encourage private enterprise in the development of economically sound and stable domestic mining...and the orderly and economic development of domestic mineral resources..." (Title 30, U.S. Code§21a—passed by Congress in 1970.)
Congress clearly has the power to impose a further moratorium or restriction on the issuance of the 3809 regulations—and Congress has a duty to do so when it is aware that the proposed revision would change the law, or would go beyond the scope of the administrative power that Congress gave to that agency. As we have observed, Congress is reluctant to "impose itself' on the Executive Branch (in this case, the Department of the Interior) unless there is a clear abuse of the administrative regulatory function. The function of the Executive Branch (the administrative agencies) is to "administer" the laws passed by Congress, without changing them.
4. Hidden Law—RS-2477 Public Roads and Rights-of-Way. We have discussed RS-2477 roads and rights-of-way in this column on several occasions (See ICMJ, June 1998 and February 1999). We rarely, however, hear any mention of RS-2477 Roads, the "hidden law," from the Feds themselves. The reason for this silence is reportedly an unwritten "policy" of the Federal land agencies (primarily the BLM, NPS and the U.S. Forest Service) to never use the term "RS-2477 Road"—much less the term "RS-2477 Right-of-Way."
The law has not changed. Every public road and right-of-way on existing public land at any time from 1866 to 1976 is, today, still a public road unless it has been closed by Congress. When the 1866 law, granting a right-of-way for road construction, was repealed in 1976, this repeal did not affect any of the old or existing roads or rights-of-way.
What appears to be happening on the Public Lands today is that the old roads are often "allowed" by the feds and a dispute or litigation is avoided.
Your members of Congress are also interested in knowing your position on Secretary Babbitt's proposed revisions of the "3809 Regulations," and the effects it would have on mineral exploration and development in the United States. Many members of Congress and Committee members from the East or the Midwest are not familiar with the mineral industry and how the proposed revised "3809 regulations" will affect some.
The 1992 Rio Biodiversity Treaty, the 1997 Kyoto Protocol (The "Global Warming Treaty"), the "Man and the Biosphere" Program, and the International Criminal Court have not gone away. Most of these programs are being partially implemented by Executive Branch activity.
Members of Congress, particularly members of Committees, should be kept aware of the facts, our views, and the effects of the various proposed Congressional bills and Executive Actions. "Eternal Vigilence is the Price of Freedom."
Following are the addresses and telephone numbers of members of Congress (send copies of correspondence to their local offices, and to your State and local officials):
Senator (fill in the blank)
Washington, D.C. 20510
Representative (fill in the blank)
U.S. House of Representatives
Washington, D.C. 20515
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