posted by
Property Rights Foundation of America®

January 29, 2002
Mehrten's Rancho
Clements, CA 95227

Mr. & Mrs. Jack Sparrowk
Sparrowk Livestock
Clements, CA 95227
Regarding the Murphy Creek project

Dear Bev and Jack,

Thank you for taking the time on January 8 to respond to my letter of the 6th and for enclosing a copy of your Grant Application for the Murphy Creek project. It was informative to learn that it does not require conservation easements from the participants. Nevertheless, the ultimate result, of a government funded project such as this and the dangers it has for all property in the creek's watershed are still the same. Furthermore, the Grant Application itself makes it abundantly clear that this project invites destruction of our property rights. It is really worse than I thought.

Attitudes and Evidence
You were somewhat chastising in your comments regarding the examples of stewardship and management of lands under government control that I attached to my January 6 letter. The evidence I offered to justify my less than positive feelings about the promises and alleged benefits of such socialistic operations were selected at random and as I came across them. There are more every time I look in the news. I am passing some more on, because you need to know.

The City of Lodi, like so many local governments, has the "free money" Federal aid hook embedded in its rump. Thus, it is required to waste hundreds of thousands of dollars in order to pave a bike path (see enclosed article from The Record of January 9). But who cares—it's only the national and local taxpayers' money. As I pointed out, the Supreme Court said sixty years ago, "It is hardly lack of due process for the government to regulate that which it subsidizes." (Wickard vs. Filburn). The hook is not barb-less. Federal aid is not a "catch and release" program. And, we should keep in mind that conservation easements are just one of many barbed hooks available in the government bait store.

Indeed, it was surprising to learn that because you have property in Oregon near the Klamath River, and that you have neighbors and acquaintances there that were terribly affected by the government shutoff of their water to satisfy suits brought by enviro groups under the Endangered Species Act, you therefore believe there is no danger from entanglement in government funded land use environmental programs. Isn't there a recent advertising commercial about "denial ain't a river in Egypt?"

I don't doubt that you have had good results working with government personnel on projects. I have never met a fisherman I didn't like. I too have had good experiences working in government and for agencies. I have had the privilege of meeting and becoming friends with some wonderful and competent people. Governors, mayors, senators, biologists, congressmen, park superintendents, engineers, the head of State Parks, animal pathologists, surveyors, sheriffs, police chiefs, District Directors of the Bureau of Reclamation, military commanders, Forest Service Superintendents, water district managers and generals are some folks that come to mind.

Understanding the Attack on Klamath Farmers
No doubt the Bureau of Reclamation people in charge of the dam on the Klamath are nice people. Yet they took actions that destroyed the livelihoods of fourteen hundred (1,400) families in the Klamath watershed. That the assault was forced by "citizen" enviro groups including the Arizona-based Center for Biological Diversity, the Oregon Natural Resource Committee, and the Earthjustice Legal Defense Fund (formerly Sierra Club Legal Defense Fund), who sued under the Endangered Species Act contending that the Bureau must use all water for sucker fish and salmon preservation. (1) There wasn't enough water for both farmers and the fish, and (2) the sucker fish and salmon are on the endangered species list. That second part is about as ridiculous as putting the Foster Farms chicken on the "endangered" list.

Federal Fish Rules Hook Other Fauna is an article in the October 1-8, 2001 Insight on the News that deserves a careful read. It tells how the Endangered Species Act was used by enviros who may have had "good intentions" or "a higher purpose" to endanger the well-being of other species besides human beings in the Klamath Basin watershed. Perhaps in these folk's minds, hurting endangered species was worth the price to get at the primary target, namely humans. You might dismiss this as paranoia. An observation made years ago by Henry Kissinger comes to mind: "Even a paranoid can have real enemies."

Over the last twenty years elements in the U.S. Army Corps of Engineers have gone to extreme lengths to establish and justify themselves as the national mud-puddle police. A hillside swale less than three miles from here, which would not run an inch deep after a week of heavy rain, was said to be a "navigable water of the United States" by the Corps cops. Therefore it was not usable by the property owner for agriculture. Fortunately these bureaucratic land-grabbing police efforts by corps enviros using the "navigable waters" rationale were curtailed by the U.S. Supreme Court in the case of Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers on January 9, 2001.

The Latest Salmon News Is Relevant
My January 6 letter covered the Federal Court ruling made in September by Judge Michael Horgan that effectively delisted salmon by requiring that they all be counted—not just the ones that weren't fin-clipped. In mid December the Federal Court of Appeals in San Francisco overturned this lower court ruling, so the salmon is still "endangered." No reasons were given in this decision that contained only two-sentences! Yet it banned logging along the salmon's "critical habitat." In other words, the watershed is effectively controlled by allegedly "endangered" fish! Details about this unjustified decision are in December 31, 2001 Western Livestock Journal story Salmon delisting overturned.

Like most folks, you may not have heard about the testimony of biologists involved in the Klamath River debacle. It was given before the Natural Research Council committee convened in Sacramento. This committee is one of four that are part of the prestigious National Academy of Sciences. The inquiry hearing was held at the request of the Secretary of Interior. Here is how it was reported in Agri News on November 14, 2001:

Steve Lewis, Klamath Falls Fish and Wildlife office project leader, spoke among a panel which focused on the biological opinion of Lost River and shortnose sucker fish. He reminded the committee that the Fish and Wildlife Service must work according to what is required of them by the Endangered Species Act.

"The Endangered Species Act points its primary responsibility for conservation on the agency and it says it very clearly," Lewis said. "Congress expressly provided that the resulting biological opinion be based on the best science available. Science in many cases ranges from peer review to personal communication. It includes whatever is available. In our biological opinion we cited over 250 references."

Lewis added that the service recognizes the need for additional information, however they simply used the best information available and are "required to give priority to the needs of the species."

Donald Reck, a fisheries biologist for NMFS (National Marine Fisheries Service), spoke of coho salmon population estimates and the difficulty that comes with attempting to catch and therefore count adult coho during their spawning migration. During his presentation he was questioned by one committee member.

"That (overhead of data projected on the screen) says to me, you don't know how many salmon there are, you don't know what would constitute a viable population, you don't know the relationship between salmon populations and the flow in the Klamath River, which then says to me you have no idea what is going on with how to make any decisions on flow in the river based on what's going on with the salmon. Have I misunderstood or have you left something out?," the committee member said.

Reck replied by pointing out the amount of effort that the NMFS science center spent developing a status review of coho salmon populations.

'It was peer reviewed and they came up with a determination that basically said 'the fish are threatened' and I am taking that at its value," Reck said. "Do we know exactly how many coho return to the Klamath River every year? No. Do we know how many coho salmon return to each tributary? No. Am I comfortable with the amount of information we have on all of this? Absolutely not. But that is sometimes where we live as we implement the Endangered Species Act."

The ESA as presently constructed is undoubtedly a dangerous law. It enables and requires cavalier actions based on insufficient information and ignorance. It destroyed the economic lives of 1,400 families in the Klamath River Basin watershed. It allows enviros who may have "a higher purpose" to go into courts and sue agencies and force government personnel with the best of intentions, who we pay with our taxes, to perpetrate such debacles.

It brings to mind this profound definition of government: "Government is not reason, it is not eloquence, it is force; like fire it is a dangerous servant and a fearful master." These are the words of George Washington. Today Washington would urge us to hurry and put the fire back in the stove, that is in the confines of the Constitution, before more of our freedoms are burned up.

Bio Fraud
Your taxes are funding some efforts by people who may not have the best of intentions. The enclosed Western Livestock Journal piece dated December 31 tells about State and Federal personnel planting the hair of the "endangered" Canadian Lynx. This was a scheme by enviros with "a higher purpose" to plant evidence of its presence which could then be used as a reason to close vast areas of land to human activity. Also see the Insight on the News stories on this Lynx-hair fraud and the Federal Shark Stock Assessment. Now we know why there has been a sharp increase in shark attacks on people along our coasts.

Maybe this answers your question about who and why someone would be planting salmon eggs in Murphy Creek. How about someone who is "working for a higher purpose" planting kit foxes, red-legged frogs or any other critter declared to be "endangered"? The President of the New Mexico Cattle Growers Association recently said, ...studying the actions of federal agencies and documents, like the draft recovery plan for the Southwestern Willow Flycatcher, causes one to wonder. That plan addresses not only occupied habitat, but 'suitable but unoccupied habitat' and 'potential habitat,' as well." The January 21 Western Livestock Journal story NM cattle producers call for more ESA investigations tells why people there are contacting state and federal officials for an investigation of the Endangered Species Act.

Bio Creep, Eco Creep and Mission Creep
Let's return to the Mokelumne River and Murphy Creek. There is some news about "endangered" salmon. Six environmental and fishing groups are threatening to sue government agencies over "endangered" salmon in the Delta. See the story Activist might sue government over Delta fish The Record, January 12, 2002. If those salmon get going in Murphy Creek isn't it logical and probable that property owners in the Murphy Creek watershed could be targets of suits by such groups to stop a barn from being built, or an orchard from being planted, cattle from being grazed, a driveway from being paved, hay from being planted, a house from being built, your vineyard from being worked, or whatever?

Look at The Plan
Keeping recent history in mind while studying the language in your Grant Application to CAL FED, it is obvious that the Murphy Creek Restoration proposal is inadvertently or deliberately designed to diminish and destroy everybody's property rights in the watershed drainage:

First: The fundamental premise for the Grant "is to re-establish in-stream salmonid spawning and rearing habitat..." (see grant app. page 3 of 10) I have said it before. I have been here for over 60 years and Murphy Creek never was a salmon-spawning and rearing stream. Not since the Pleistocene Epoch.

Second: It plans to "restore approximately 24,200 linear feet of salmonid habitat..." that is a "riparian corridor" 4.58 miles in length. (see grant app. page 3 of 10)

Third: It invites and specifies the propagation of "target species such as chinook salmon, steelhead trout, tiger salamander, spade foot toad and Swainson's hawk,...beyond the area..." (see grant app. page 4 of 10). Nearly all of these species are on the "endangered" list.

Fourth: It notes that the watershed of "The creek drains over 3,100 acres of farmed and grazed lands to the north of Camanche Dam." It points out that the project is part of the "larger water shed." It also says "Human activities within the watershed and along the stream corridor, such as road construction, farming, grazing and vegetation removal add fine sediments and elevate the nutrient load of anadromous streams. This may impact the organisms within the stream by reducing available oxygen, elevating water temperatures or irritate breathing structures of these organisms, rendering historic spawning and rearing habitats useless or greatly reduced in carrying capacities." (see grant app. page 6 of 10)

Clearly, this is a blueprint for bio-creep, eco-creep and mission-creep to take control of all property in the Murphy Creek watershed. Or put another way, a blueprint to relentlessly destroy the property rights of every acre of land that drains into Murphy Creek. If history is a guide, this result will be demanded by eco lawsuits and enforced by bureaucratic regulators. Maybe not immediately, maybe not in twenty years, but ultimately, this plan points a gun loaded with endangered-species-act bullets at the heart of every property title holder's rights of ownership in the Murphy Creek watershed.

The resulting loss of collateral on existing loans that property owners may have could be financially devastating. These seem like rather extreme measures to pursue what you describe as "...an effort that seeks to clean up an algae filled, overgrown creek and preserve open space in an area that has the potential in future generations to be covered by ranchettes or subdivisions." The Williamson Act and eighty-acre minimum lot size zoning has already solved your concern about postage-stamp ranchettes and subdivisions.

Assuming Responsibility
I see that Bev's name and your employee Tom Azevedo and two biologists that work for East Bay MUD Joe Merz and Kent Reeves are shown as the chief designers of this endeavor. Can we count on East Bay Municipal Utility District and Jack and Bev to hold all property owners in the watershed harmless from the damages to our property rights that will be inflicted by this project?

Contrary to your assertion in your January 8 letter, there is plenty of evidence to establish the nexus needed to make a proximate cause construction holding you all liable for property rights losses sustained by neighboring owners. The grant application alone does that, not to mention the letters, the newspaper articles, the meetings and dinners.

A surety against losses
Rather than put yourselves and EBMUD at such risk I suggest that you both agree to deposit in an interest-bearing escrow account an amount equal to $3000 per acre x 3100 acres - the acres you own, with instructions to indemnify property owners in the watershed for any losses of property rights and/or values that may be sustained at any time during perpetuity as a result of this project. The deposit amount should be periodically adjusted in accordance with the consumer price index (cpi).

Another possibility would be for you and EBMUD to buy an indemnity bond that would be made an appurtenance to each property and fungible with regard to each acreage unit. It should guarantee in perpetuity that each property in the watershed is to be made whole from future losses of their elements of ownership rights and or (cpi) calculated property values that may result from this project. Inasmuch as this project is being described as a substantial benefit and an improvement to the quality of life in the watershed, it might be easy to find a willing bonding agency to post such a surety for a low rate.

Such an approach would do much to protect all concerned in the future. Our heirs and assigns, who will be here long after us, should have the freedom to make their own choices. We have no right to take freedom from future generations. To the contrary, we have a sacred obligation to maintain and enhance those freedoms.

Dead-hand rule
Attempting to control future property owners is sometimes described as "ruling from the grave" or "dead-hand rule." Nathaniel Hawthorne said ominously, "...the icy hand of a deadman lays upon us." It is not the way of freedom. The story from the winter 2002 Range Magazine entitled Bulldozed into Bankruptcy is an illustration of these dangers be they from easements or other controls and management plans.

You may have sensed that I have become disgusted with the constant litany of hysterical environmental bovine compost that has been trotted out in the last couple of decades. If so, you're right! You got at least one point I've tried to make. Having watched and participated in environmental work, since my academic days in this field over forty years ago, I first became fearful that legitimate environmental concerns were becoming discredited as a result of all the compost. Later my concern became that the new environmental agenda was really the old socialist agenda. It is a danger to everyone.

Cleaning up the compost
Well finally, it appears someone else has shoveled through it all, rather thoroughly. I just read this fascinating book review by Herb Greer who lives in Salisbury England:

The great economist Joseph Schumpeter once wrote that the first thing a man will do for his ideals is to lie. Some of the most intense idealists in our time are the self-elected champions of the environment — and they have lived up to that apothegm in a spectacular manner.

Occasionally, however, one of them suffers an attack of honesty. Danish statistician Bjorn Lomborg was a greenie who stumbled across an article by American economist Julion Simon; it stated that the doomsday prophets were, simply, wrong. Lomborg gathered some of his best students and set out to prove that Simon was no more than a right-wing propagandist. They discovered that real data proved Simon correct.

The outcome of Lomborg's research, a book titled The Skeptical Environmentalist, is a devastating exposure of warped statistics, bad faith, arbitrary guesswork, outright mendacity and a rather sinister streak of political activism in the green movement. Methodically through 350 pages of closely packed data from the best authorities, Lomborg destroys every single point in the conventional litany of looming environmental disasters.

Our resources are more plentiful than they have ever been and likely to become more so; the atmosphere is cleaner that it has been for centuries; population growth is slowing down in the developed world (and is likely to slow in the undeveloped world as it becomes more prosperous); the oft-cited figure of 40,000 species killed off annually is ludicrously overstated (species have always become extinct, and the process has not accelerated to a dangerous degree)... It is crammed with statistical material and graphs, and...some of Lomborg's detail can be amusing.

I've ordered the 500-page book from Amazon.com for $19.60. A review like that indicates it's a worthwhile read for everyone. The Skeptical Environmentalist could be the most important book of this new century. Your consideration of my concerns is appreciated.

Sincerely,

Joe Mehrten

Copies to legislators and interested parties

 

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