W.R. McAfee Sr. (c) copyright 2011 All Rights Reserved


On April 7, 2001, the U.S. Bureau of Reclamation ignored state and federal law in the name of the ESA and stopped water to more than 200,000 acres and some 1,400 canal-irrigated family farms near Klamath Falls, Ore., plunging the community toward bankruptcy and devastating families.

Why? Because the bureau said two species of bottom-feeding suckerfish and a Coho salmon, in a reservoir the farmers depended upon, might be “affected” if water was released during the current drought.

The ESA had already been used to cut off water to a group of California farmers, causing their crops to dry up.

In Colorado, the forest service threatened another agricultural operation with a by-pass flow that would have resulted in an 80-percent loss of the dry-year water supply from a key reservoir, with a direct economic loss of between $5 and $17 million.

They also attempted to impose a “by-pass flow” that would have taken some 50 percent of the dry-year water supply provided from a Colorado municipal water storage facility.

In Idaho, a federal permittee was told he would have to bypass water to protect aquatic species or obtain an alternate source of water at a cost of $120,000.

In Arizona, where state law requires water rights be held by the person making the beneficial use of the water, the regional forester had demanded that water rights owned by grazing permittees be transferred to the feds – rights long established under state law for livestock purposes.

Federal agencies nationwide are using the ESA to try to override established water rights, state laws and the McCarran Act.

Under the Water Rights Act of 1952 (McCarran Amendment) it’s illegal for anyone – federal agency or citizen, without exception – to force water bypasses or withhold water along natural flowing streams, rivers and their tributaries.

It also waives the sovereign right of the United States to be sued – by anyone – if the United States appears to own or be in the process of acquiring rights to any such water.

The Supreme Court has upheld the McCarran Act several times. Bennett W. Raley’s testimony before Congress laid a clear picture of the importance of the McCarran Act:

“…because federal agencies are unwilling to accept the water rights priorities that are established in the McCarran Act adjudications, they are currently engaged in a concerted attempt to use the Endangered Species Act and other federal laws to control the use of water.

“For example, Forest Service asserts that it has the authority to impose bypass flow conditions on the operation of water facilities, which are different from or inconsistent with its federal reserved water rights. Likewise, the United States Fish and Wildlife Service has attempted to use Sections 7 and 9 of the Endangered Species Act to reallocate water from those who own water rights to federal environmental purposes.

“Simply put, if federal agencies can use the ESA and other federal environmental or land management statutes to control existing and future water uses, then relative priorities established in the McCarran adjudications are meaningless. Water users must either stand and fight these attempts to destroy the value of the McCarran adjudications, or accept that they will have little or no meaning.”

None of this mattered to the feds when they stopped water to Klamath Falls’ farms and ranches. This action reduced a thriving multi-million dollar agricultural economy and community to dust for a couple of fish and theESA, putting approximately 4,000 families into local food bank lines.

Land values for farmland, depending upon the water, dropped from $800 to $50 an acre. It became ripe pickings for any envirogroup to come in, buy up the land at fire sale prices, close out the farmers and let it return to the desert it was in 1906 before farmers began reclaiming it with water rights guaranteed to them by both the state and the feds.

If the Bureau of Reclamation, or any other federal agency, feels land belonging to 1,400 farm families is worth sacrificing for the ESA, the public good and three fish, then government should condemn the farmland and pay its owners fair market value for their acreage like the Constitution specifies, or pay them fair market value for the use of their land and the income they’ve lost.

Taking it in the name of suckerfish is wrong.

Word of this latest ESA charade is spreading via the Internet and agricultural organizations.

Smug politicians and their handlers who thought America’s key votes resided in the nation’s cities, where opinion is easily swayed by 30-second sound bites should pay attention. Those who ignored landowners’ pleas for relief during the ‘90s while bureaucrats hauled private property owners before sympathetic federal judges for insane infractions of theESAare starting to hear the footsteps.

The 2,434 counties – 73 percent of America’s counties representing 143 million people and 2,427,000 square miles of American heartland – that voted solid bloc in the last election are watching Klamath Fallsand the politicians engaged. These are thinking people all with long memories who don’t easily forgive bureaucrats that shut off water to families for fish, a Gibbs vs. Babbitt, or a “law” like the ESA.

And even though the ESA and landowner relief wasn’t a factor in the presidential campaign, it may be on the radar – as they like to say inside the beltway.

If landowners are forced by government to give up the use of portions of their property because of ESA regulations, then under the Fifth Amendment they should be compensated market value for the use of their land.

Without property rights protection or compensation for use of private land, disincentives are created for both the property owner and the regulator. The property owner has a disincentive to maintain and create wildlife habitat. The regulator, who’s not required to compensate the landowner, can adversely affect the value of a property owner’s land at will because it’s not costing the regulator anything to engage the landowner withESAmandates.

Theorists, who’ve never made a land payment, turned a shovel, worked a pen of calves or prayed for enough rain to make fall feed or a crop, created this regulatory swamp for landowners without consideration for their constitutional rights.

When the ESA put 1,000 acres of Ben Cone’s North Carolina timber off limits to him – at an estimated loss of $1.8 million – so “endangered” red-cockaded woodpeckers could eat insects in his older trees, he responded by cutting his remaining timber as young growth.

He did this to prevent the feds from confiscating the rest of his trees to feed woodpeckers when the trees got older.

Then he filed suit against the federal agency that had cut him off from the use of his property and collected. Fortunately, he had the resources to do it.

In this case, everyone lost. Cone lost the use of 1,000 acres of his property. The woodpeckers lost because once the trees the feds put off limits to Cone are gone, there will no more habitat generated on his property. And the taxpayer lost because dollars spend by federal regulators involved with this madness ended up harming the very bird they were spent to protect.

Michael Bean of the Environmental Defense Fun, whose statement to a U.S. Fish and Wildlife Service employee training session was included in recent Congressional testimony, commented:

“…the strategies that have been used to date to conserve this (red-cockaded woodpecker) species…on private land have probably contributed to the loss of the ecosystem upon which the bird depends.”

Larry McKinney, with the Texas Parksand Wildlife Department, referring to The Great Texas Cedar Chop when ranchers took the same measures with cedar that Cone took with his timber, put it in fewer words.

 “I am convinced that more habitat for the black-capped vireo and especially the golden-cheeked warbler has been lost in those areas ofTexassince the listing of those birds than would have been lost without the Endangered Species Act at all,” he said.

The Competitive Enterprise Institute said it still another way. “The risk of being regulated out of business has driven some landowners to shoot, shovel and shut up when endangered species are found on their land. Many others simply destroy the animal’s habitat so as to avoid the ESA’s onerous land use regulations.”

With eager bureaucrats and environmentalists telling ranchers, farmers and property owners with endangered species on their land what they can and cannot do – all armed with mandates that can cause serious economic hardship for these same landowners – property owners are going to take whatever defensive measures they need to survive.

In short, federal land use controls do not save endangered species, and the ESA, by failing to provide landowners incentives to support the act, is causing the opposite of what was intended.

If government is sincere about preserving wildlife, they need to stop punishing the people who took care of it the last half century and stop fining and threatening to jail ranchers and farmers for protecting their livestock.

Landowners most of all care about wildlife. They will support government efforts to protect wildlife and will work with government officials and their programs if the feds will just utilize common sense when working with property owners.

Good examples already exist. Predator-resistant wood duck boxes built by duck hunters and placed in swamps brought the wood duck population back to near 3 million –enough to support an annual harvest of some 800,000.

When hunters became aware the number of wild turkeys was declining, they helped restore them to their original range. Today, wild turkeys are found in virtually every state in the nation.

When Gulf Coast fisherman saw red fish being decimated by netters, they formed the Gulf Coast Conservation Association and stopped it.

And there are more rare African antelope on Texas ranches than there are in Africa.

For years, local property owners and state and local wildlife conservation officials have had successful working relationships, many of which are still in place. But when the feds unleashed the ESA, trust between landowners and the FWS disappeared.

Now, well-heeled environmental organizations are filing record numbers of lawsuits to “force government agencies to push more and more environmental regulations onto private landowners.           

Headed by directors that draw six-figure salaries, the major envirogroups pour their organization’s money into emotionally charged and mostly inaccurate “stop the slaughter before it’s too late” telemarketing and direct mail fund-raising schemes. Most of the money goes back into more fund-raising activities and congressional efforts.

These envirogroups file “citizen” lawsuits against government agencies, but not for the benefit of landowners. Instead, they identify an area they want to force people out of – or stop all human activity from occurring in. This includes getting ranchers whose cattle have grazed federal land for decades off federal land or denying the use of forest roads to families who’ve lived for generations on private land inside fed forests.

Once the area is identified, they file a lawsuit against the federal agency responsible for the area.

The federal agency is then “forced” to enforce ESA “law” to stop an activity (grazing) or cut off the water (Klamath Falls) to protect whatever endangered species or habitat is cited in the lawsuit. The rancher, farmer or landowner is either being enjoined by both groups in court – the outcome of which almost always favors the feds and enviros – or forced to settle out of court with similar results, not having the funds to contest the suit.

Envirogroups then are authorized by the ESA to use tax dollars to pay their lawyers and “expert” witness fees when they’re “successful,” or when they “win” in court – a largess privilege also extended to any “citizen” who wants to sue a private property owner whom they believe is in violation of theESA.

Landowners opposing either group – or both – have to dig into their own pockets and use their own money to fight back. This is wrong.

There are many who believe the ESA should be repealed and Congress should start over with a law that would protect endangered species and private property owners alike.

To get this done, private property owners are going to have to join forces with agricultural organizations as well as outside organizations with common interests.

With nothing in place to stop it, and with landowners caught completely off guard, the government’s “legalized,” moneyed foray into controlling privately owned property with environmental regulations blitzkrieged the agricultural community during the ‘90s.

And when national media refused to inform the nation what was happening to independent ranchers, farmers and landowners under the ESA, agricultural organizations and the Internet became their only outlet.

The question is: Why was this perpetrated on the American landowner in the name of wildlife?

Government already owns more than half of America. The feds alone own more than 835 million acres of land – right at a third of all America– and they don’t pay a nickel in taxes.  State, local and quasi-governmental units own another 20 percent ofAmerica.

The Grace Commission, which completed a massive documentation of government waste, fraud and ineptness a few years ago, recommended the federal government sell off much of its land.

Given what was perpetrated on property owners this past decade, that doesn’t appear likely. And whatever the reasons behind the ESA, it’s not helping animals, their habitat or the people who take care of both.

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For in-depth information about the Klamath Falls tragedy, see www.klamathbasincrisis.org.