posted by
Property Rights Foundation of America®

Mehrten's Rancho
Clements, CA 95227

January 6, 2002

Mr. & Mrs. Jack Sparrowk
Sparrowk Livestock
Clements, CA 95227

Regarding the Murphy Creek proposal

Dear Jack and Bev,

After receiving your letter and reading the November 18 story in The Record about obtaining a $385,000 grant from Cal Fed for remodeling Murphy Creek I decided to collect and pass on to you some thoughts I've had on the danger of permanent, irreversible damage this proposal could do to us all.

I apologize for the lengthiness, but as you may already know, this is a big subject. When you first contacted me regarding the Murphy Creek idea, you described it as an effort to keep things in the area the way they are. I replied that I too liked things the way they are and enjoyed the privacy, open space and the ranch way of life. That of course is why I am willing to bear the cost of maintaining and operating over a thousand acres even though the financial dividends are not significant.

Public and Private Conservation Easements
As you may recall, I was interested by the idea of "conservation easements" as a means for assisting preservation of properties by relieving the owners of some of the financial burdens. However you should recall that I was opposed to entering into such an agreement for an easement with any government agency because of the whimsical nature of regulations.

I was only interested in the possibility of an agreement with private institutions. However, I have subsequently learned that these only place the property owners at a slightly different location down the road leading to the abolition of their private property rights. Conservation Easements with private land trusts are so intertwined with government regulations and controls so as to be little different from easements sold to public agencies.

I refer you to three attached articles from Agri-News (1) The long-term implications of CEs are ugly which tells how such easements must be in perpetuity to obtain tax benefits, it also gives examples of the language found in such easement agreements and points out, "As environmental codes become more severe, so do the regulations influencing lands that are encumbered by CEs."; (2) A loss to my net worth... which further explores the legal implications of CEs and relates some experience with them in El Dorado County; (3) Conservation easements... A wolf in sheep's clothing, is a summary of an address by the President of the Property Rights Foundation of America wherein she concludes "...considering that the lands may become a burden because of the conservation easements, the future of ownership of these lands is uncertain and they may end up entirely owned by government."

It may be that government already controls and owns way too much property, and some of the reasons for that thought are discussed below.

Government Aid Equals Government Control
I hasten to point out again that government financial aid always brings government controls. Interestingly, with CEs so does a tax reduction even though it may be a private agreement. The logic and relevant legal dictum for controls marching hand-in-hand with aid was most articulately stated by the U.S. Supreme Court in 1942. In the case of Wickard v. Filburn which dealt with regulations from the Agricultural Adjustment Administration, Justice-Jackson said for the court, "It is hardly lack of due process for the Government to regulate that which it subsidizes." Isn't that how it should be? Or, would we want our government handing out our tax dollars to all kinds of boondoggles with no conditions and controls on the expenditure of those dollars? Whatever your answers to these questions, the bottom line is there cannot be government funding without government controls or regulations.

Who Pulls The Strings
There are strings attached — even ropes, cables, and chains. The other ends of those tie-downs are held by distant and changing rulemaking bureaucrats, politicians and their experts. Naturally, these folks are more interested in their own immediate welfare than in that of Murphy-Creek people from whom they may be several thousand miles distant, and from whom they do not receive their directives, paychecks, orders and pensions. They have no personal interest in our lives, needs, work, and obligations. This means a loss of freedom to those local people who are so tied.

When you announced that this project was to be funded by something called Cal Fed, I learned this entity is a conglomerate of 18 (eighteen) or more State and Federal agencies — all of which have their staffs of experts, regulators, inspectors, overseers and managers. There is not even a pretense of this being in the private sector. Thus, I have to tell you I would not want to turn over a major portion of our property rights to such an entity, no matter how many of our tax dollars they propose to generously give us. Most of our ancestors came to this country to get away from that kind of controlled environment. Is it wise to again lock ourselves back in that kind of cage?

It was food for thought, about two months ago, when I heard Paul Harvey pass on the significant news that Russian President Vladimir Putin officially signed legislation that people in that country now had the right to own land. Researching "for the rest of the story" as Paul would say, I found that these rights do not apply to large agricultural lands which are increasingly being rented by private operators from the collective farms still existing from the Soviet system. Private farmers work about 8 percent of Russia's farmland. Ten years after the end of Communism, privately owned backyard plots of villagers produce over 70 percent of vegetables and potatoes and over 40 percent of eggs and meat.

Regarding the changes in Russia, reporter Fen Montaigne in the November National Geographic, observes "...youth is everything. In few countries is the generation gap as wide or are people under 35 playing such an important role in transforming society. Unencumbered by communist thinking and work habits, unaccustomed to the Soviet Union's cradle-to-grave security, young Russians more readily accept the challenges and uncertainty of a market economy." Apparently old socialist attitudes still keep Russia from trusting private people to own and control land use and large-scale food production.

A remnant of an eighty-year-long vested interest in an error called "central planning" that produced scarcity, corruption, mass murder, deprivation and massive environmental degradation is maintained by those who graduated from communist schooling. People "older than 50" still rely on government to help them. "We rely on ourselves..." says Boris Nemtsov, a liberal party leader and member of the lower house of the Duma (parliament), who further observes, "what I'm waiting for is the time when these old people will be replaced by us. When we do that, I think Russia will be a better place."

How ironic! Russians are trying to move away from socialist controls, while here in the "land of the free and home of the brave" we are being encouraged to move farther into the realm of these kinds of power-centralizing controls and away from private ownership. Eighty years hence, will our progeny be struggling to dig themselves out of a similar collectivist mess?

The Elements of Ownership
Quite often folks are victims of what might be called the "law of unintended consequences." In conversations about "property rights" I find many folks have little or no understanding of the importance and substance of those words. In law, the elements of ownership which compose the fee-simple right to private property in real estate are the exclusive right to title, to possession, to control, to use, to enjoy, to improve, to preserve, to bequeath and to dispose. Between private parties, these elements or the owner's proprietary interests can be voluntarily diminished for a period of time or transferred by mutual agreements such as leases, easements and sales.

In property transactions between the government and private parties the playing field is not level. Governments can change the rules by future regulations, legislation and there is always the threat of eminent-domain condemnations. Regarding condemnation and legislation, it is noteworthy that prominent enviro organizations have been pushing Congress to enact something called CARA (Conservation And Reinvestment Act). Critics have accurately dubbed it the Condemnation And Relocation Act.

Is More Government Land Good For Our Environment?
With CARA, over a billion dollars per year would be available to government agents and appraisers to condemn private property. Grant money would be funneled to law firms so they can sue you into bankruptcy. $60 million dollars per year would be available to train an army of investigators who will trespass on your land to locate and police "endangered species." All lands with "endangered species" would be targets for government land acquisitions. From New Mexico to Idaho I read of animal rights activists who are clamoring for money to reintroduce wolves that kill livestock and push cattle ranchers and farmers off their land and bring the decline of rural communities. These are just some of the "good things" that passage of CARA would do. Recently we read in the news about the Forest Service's proposal called the Sierra Nevada Ecosystem Plan or Framework. It appears to be another scheme to push people out of public forests. It would ban the harvest of western-slope conifers larger than 30 inches. In concert with this I propose that every home-building spotted owl be issued a tape measure.

The Preservation of Freedom, Prosperity, Stewardship and Success?
Undoubtedly if the governments had more tax money in their enviro budgets we could have more taking of private property by government, and less money available to protect Social Security and Medicare. Isn't it enough that over 50 percent of the 13 western states is owned by the Federal Government — in California over 45 percent?

The destruction that has already been inflicted by fanatic preservationists is a clear indicator of more to come, if land is more governmentalized. Here are some examples: Remember why the lumber mill closed in Amador County at Martel a couple of years ago. Boise Cascade mills no longer exist in Idaho with the shutdown of their last two in February. They once had five. Recall the rolling blackouts last summer, the result of enviro-nimby opposition to constructing power generating plants in California. Now our State's revenue surplus is gone for purchasing expensive imported electricity.

Education, transportation, taxpayers, police and fire protection services will pay for this loss. Remember the 1400 farms and their communities dried up and destroyed in the Klamath River basin last summer. The preservation fanatics just scored another one with the closing of the Scotia Lumber Mill in Humboldt County. It seems that every redwood tree older than George Washington must be preserved even if it means destroying the right to life, liberty and property and the great freedoms Washington and the cofounders of this country secured for us.

The Habitats That Weren't Found
What has been dubbed as "junk science" has been used to bring these and too many other episodes of economic destruction to people across this country. Old-growth forests can't be cut because they are alleged to be the habitat of "endangered" spotted owls. About three years ago one was observed relaxing on a lawn in Citrus Heights and recently another was observed near the old American River Bridge — both in suburban Sacramento. Perhaps they were living in old-growth power poles. Actually, the food chain is very limited in old-growth forests, so the spotted owl apparently doesn't eat at home, or perhaps, rather than do a lot of commuting, he may not live where the experts say he does and that is why he is so scarce in his habitat. It's like trying to find blueberries in a blackberry patch.

Orchards and vineyards cannot be planted if the land is habitat for "endangered" ferry shrimp. Their Listing as "endangered" was based partly on a study of habitat area where they don't live. Naturally the findings were scarce. Nobody knows how many billions of ferry shrimp there are and nobody knows how many billions there were, yet they are now "endangered." Ironically, an "endangered" designation may be self-fulfilling for a species that becomes listed. This is because property owners who are host to them are motivated to desire their extermination because of the controls and loss of value they bring to their property. With such wisdom about the effects of incentive, you would think the experts could contrive to put detrimental pests like termites, red spider, black widows, house flies, barn flies, codling moths, medflies, glassey-winged sharpshooter flies, earwigs, cockroaches and perhaps anthrax on the endangered list.

Species Not Counted
Water was taken away from ranchers and farmers for the salmon because the salmon are supposedly "endangered." Yet the hatcheries are raising multiple millions of them. The local hatchery at Camanche Dam, across the Mokelumne River from the mouth of Murphy Creek grows about 3.5 million each year. The enviro-experts, however, contend that hatchery salmon are not real salmon and therefore can't be counted in the species population. They are genetically identical however, and you can only tell them apart from the wild salmon hatch because a fin is clipped at hatcheries before they are turned out. Isn't that like saying our cattle aren't real cattle because we have earmarked them?

Three years ago in Oregon, Fish and Wildlife personnel were videotaped clubbing salmon to death because they were hatchery produced. In a September Federal Court decision in Oregon Judge Michael Horton explained to the endangered species promoters in the National Marine Fisheries Service that a salmon is a salmon is a salmon, and to not count some part of the species population is a clear violation of the words of the Endangered Species Act. How would you like to be a dried-up farmer along the Klamath River, whose taxes had been taken to support salmon hatcheries, only to learn that all of the salmon your taxes and water saved aren't counted as real salmon? If unemployment, bankruptcy, poverty and pushing people on to government relief are good for the environment then the experts are taking people down the road to success.

Very recently the U.S. Fish and Wildlife Service and Bureau of land Management were rebuked in Federal District Court in Arizona for using junk science to deprive ranchers of their grazing allotments. On December 17 a three-judge panel of the Ninth Circuit Court of Appeals, in Arizona Cattle Growers' Association, Jeff Menges vs. FWS, BLM, ruled that these agencies must use concrete information and not bureaucratic speculation about endangered species when deciding policy. The ruling upheld the lower court which had ruled FWS and BLM had "failed to provide sufficient reason to believe that listed species exist in allotments in question. FWS acted in an arbitrary and capricious manner by issuing Incidental Take Statements imposing terms and conditions on land use permits, where there either was no evidence that the endangered species existed on the land or no evidence that a take would occur if the permit were issued." (The word "take" as used here refers to the taking of endangered species.) Imagine, trusted government employees using fiction to promote their own anti-cattle, anti-people crusade.

Who Wins
It has been said that, "Everybody wins when we improve the environment." Here is another environmental "bromide" (pun intended) that you may have read about in the business section of the December 6th Record. This is the several-year staged banning of methyl bromide which has been used for many years as a fumigant to "sanitize" or clean up the environment before planting crops like strawberries and to kill structure-damaging insects in buildings. Alternatives are not as effective. More of other pesticides will have to be used later in the season if farmers are allowed anything to protect crops. Even the bugs "win" with this environmental improvement.

We are obligated in the U.S. to ban methyl bromide because a few years ago some experts signed a treaty for us. We are told that methyl bromide is damaging to the ozone layer. Methyl bromide is about three and one half times heavier than air. The ozone layer is in the stratosphere from 9 to 18 miles above the earth. The refrigerant freon was banned a few years ago for the same reason. It too is several times heavier than air. So, when freon or methyl bromide are turned loose they go down hill and into the nearest squirrel or gopher hole. Isn't it amazing how those critters get it up there to the ozone?

There is more breaking news on the ozone front. "Children born to pregnant women exposed to ozone and carbon monoxide face higher rates of heart defects, a new study has found." This is according to a Record AP story on December 31 about research done at University of California in Los Angeles. It has long been known, of course, that higher ozone levels in smogland are caused by summer heat inversions which don't allow it to circulate upward.

Ag Alert, the newspaper of the California Farm Bureau, December 26, tells us that the California Department of Pesticide Regulations says "...methyl bromide is one of the most widely used pesticides in the world due to its outstanding efficacy and lack of effective alternatives. It is used on more than 100 different crops to control nematodes, weeds, pathogens and other pests. Some U.S. trading partners, such as Japan, specifically require methyl bromide fumigation of commodities as a condition of export." Perhaps increased use of methyl bromide in the Los Angeles basin could help mitigate excessive ozone.

Preserving the Air, Forests and Life
Another recent story in The Record was about our air. Its quality is still being degraded and is below the ever-more-stringent standards set by the Federal experts. The problem they say is the extra-small particulates created by engine emissions and burning fireplaces. The next morning I went outside, looked eighty miles to the east and saw the Crystal Range glistening sharply in the morning sun. Seventy miles to the west Mt. Diablo and the southern Coast Range was clearly visible. Not an unusual 150-mile view. Within my Sierra to Coast Range view are tens of thousands of burning fireplaces, plus many more tens of thousands of automobiles.

If their emissions are so life-threatening, what about the particulates generated by the gigantic forest fires on government forest lands that were fueled by fanatic no-cut, no-use preservation policies? If your fireplace is a killer wouldn't we have seen thousands dying from the forest fires? Yet the most tragic deaths attributable to the forest fires were when four young firefighters in Washington State were burned to death because water wasn't available in time to suppress the fire. Their rescuers couldn't get timely permission from environmental agencies to dip from a nearby lake because of "endangered" fish that live there. I am attaching a transcript of a speech I recently found, by one Robert Nelson, Ph.D., about the history of government forest management, forest fires and stewardship (see The Dangers Of Government Forest Management).

Environments Better Suited for Terrorism
While thinking about forests and people being burned up and destroyed, the terrorist attack on the World Trade Center comes to mind. Especially when seeing the video of Bin Laden sneering with joy that the destruction was much greater than he had hoped for. A little known part of the story involves the environmentalists' fanatic campaign to ban asbestos. Ralph de Toledano tells it in Insight On The News for December 3, 2001:

When the Empire State building, the Chrysler Building and other New York skyscrapers were being built, the steel columns that supported them were insulated with concrete, making them safe from a meltdown disaster. This was an expensive process, so the builders of the World Trade Center Towers sought an equally effective new one. Such a process was developed — a sprayed thermal insulation of asbestos and mineral wool that could resist tremendous heat for a minimum of four hours before the girders might topple.

The twin towers were so designed, the plan being that they could withstand even the most catastrophic fire long enough to evacuate those in the higher floors by helicopter. The towers also were designed to withstand the impact of a fuel-loaded Boeing 707. But while the towers were being built, the enviros launched one of their hysterical campaigns against the use of asbestos, and the poltroons of the New York City Council voted to ban it — in no matter what form.

The direct result was that from the 64th floor up, the girders of the twin towers were deprived of the necessary fireproofing. At the time, Herbert Levine, an expert in the insulation of steel building columns, warned: "If fire breaks out above the 64th floor, the building will fall down."

And that's precisely what happened. Those on the floors struck by the fuel-heavy 757s died immediately. Many below the fire made their way out. But most on higher floors were doomed. Properly insulated, the twin towers would have remained standing for four hours — enough time for rescue by smoke-equipped firefighters in helicopters. But the first tower collapsed after 1 hour and 40 minutes, the second after 56 minutes. Those watching could see the steel columns glowing a fiery orange before they gave way, taking with them the lower floors, which could not bear the falling weight.

More than 3,000 people died because the enviros dislike processed asbestos, which never has been proved to have killed anyone.

The destructive consequences of environmental fanaticism are legion according to De Toledano (see The Enviros: Some Notes for the Record from the December 24 Insight On The News). Often the law of unintended consequences prevails. It may well bring unintended consequences to us on Murphy Creek.

Unintended Consequences at Murphy Creek
It simply doesn't make sense to want to keep our property in a certain manner and then in pursuit of that objective grant control of it to another party leaving ourselves only residual rights. Not only do we suffer from loss of use within the easement but also such loss can foreseeably be sustained outside of it.

If State and Federal mandates for cleaner water, be it drinking water, storm water or waste water, and for clean air become increasingly more stringent, lands bordering conservation easements will soon find their agricultural uses, be those vineyards, orchards, or horse and cattle pastures under greater scrutiny and limitation than other properties. You may have read the stories that were often in the Western Livestock Journal for the last two years about Total Maximum Daily Loads (TMDL), that is where EPA staffers seek draconian controls on materials in natural runoff.

I mention vineyards first because of the tilling, herbicides, fungicides and pesticides that go along with keeping a healthy and productive vineyard. There will be objections and perhaps suits brought by third parties against your vineyard husbandry because of spray drift and or runoff into Murphy Creek which your vineyard borders. Ironically, you may be accused of "poisoning" the creek you are endeavoring to save.

Building A Wilderness
A buffer may be needed to protect the animals such as mountain lions, wolves and grizzly bears that would want to move into the area. As we know, the lions are already here. As they increase, deer, which are their favorite meal, will decrease. Their next favorite meal is horses, then calves and they also love household pets. You might laugh at the suggestion of wolves and grizzly bears on Murphy Creek, but then be sure to read the enclosed article about The Wildlands Project being promoted by Sierra Club board member and convicted eco-terrorist Dave Foreman. It endeavors to re-wild over 50 percent of America to its pre-Columbian state. It would have a web of connecting wilderness corridors across the continent. Murphy Creek and the Mokelumne River could become part of that web.

If we want to bring this kind of danger from large predators and regulatory harassment on to ourselves by involving our property in a Cal Fed agreement it is of course something we can freely do, but not freely undo because of the perpetuity requirement. It is a one-way decision. That is like it was for the Germans when they elected Hitler Chancellor. However, in our case we can be forewarned.

Liability for Taking Value
As participants in the Murphy Creek project, we must realize that our actions could also be construed as the proximate cause of economic damage and reduced values for neighboring properties that do not belong to us. Therefore subjecting us to slander of title action and liability for such losses sustained by our neighbors. Last summer a significant U.S. Supreme Court decision, Palazzolo vs. Rhode Island, 121 S.Ct. 2448, ruled that a property owner should be compensated for diminished property values resulting from regulatory actions. It logically follows that if government cannot take from people's property rights and values without paying, then neither can we injure the ownership and economic values of other people's property without incurring personal liability. In our case, we would be identified by our own statements as the initiators of agreements and actions with third parties (i.e. Cal Fed) that are the cause of the taking of value. We, individually, are now at the point of choice.

I do not believe it is right to impose constraints on my neighbors, or for them to impose constraints on me. Also I do not believe the expenditure of tax dollars to restore a salmon spawning run that never existed is a proper or needed government function. It's troubling that we would take taxes from those of lesser means (say a young mother or widow who works all day cleaning houses to support her family) to pretty-up our creek. Although we are not rich, there are some folks who would call this rich man's welfare.

Better Alternatives
The $285,000 of Cal Fed funds could better benefit everyone by developing surplus flood-water storage and handling systems which store and/or deliver water to natural seeps to recharge the declining aquifer in the Central Valley. Continued decline of this aquifer's water table will eventually lead to its subsidence. That is an unrepairable degrading of its water storage capacity, and has happened in other places. This would be an environmental disaster of great magnitude and one to which the current environmental-chic fad of "no dams" in the name of "free-flowing rivers" will be the major cause. Is this enviro-driven storm-drain mentality of immediately running all the fresh water out to the salty ocean the best way to handle fresh water?

If you want to get rid of your three or four blackberry patches, spray'em with herbicide before it too is banned. Spray your star thistle too. If you desire to have more trees along the creek, plant them. If you want to remove the dams that were built by a previous owner, dig them out. If you need help doing these things I volunteer to help and I bet some of our neighbors would also. Why ask the taxpayers to pay for it, especially when doing so jeopardizes our privacy, and the future freedom, independence, and property values of ourselves, our heirs and our grandchildren?

Private property rights have already been so marginalized by the plethora of laws and regulations, and the increasingly massive holdings of government, that to add to this travesty is not in the best interest of future generations. Continuing these erosions of rights will destroy more than six-hundred years of hard-fought-for freedoms, which started with the Magna Carta in 1215 and were further developed in English common law and our U.S. Constitution. They are why we as Americans have been blessed. We are free to control our own destinies.

Thank you for taking time to read and consider all of this.


Joe Mehrten

six enclosures

copies to:
Congressmen Richard Pombo
Congressman John Doolittle
State Legislators and other interested parties


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