L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 129, July 9, 2001
SHAME, SHAME, SHAME!
Barring the People from the Land
by Vin Suprynowicz firstname.lastname@example.org
Special to TLE
Who could be against "protection"? Parents are expected to "protect" their children. Everyone wants to "protect" a litter of helpless puppies.
But the word can have other meanings. If the head of the household has died and the property tax payments aren't being made, the authorities may eventually decide to "protect the asset" on which they have filed their liens. Such a gentle way to describe the process of evicting the tearful widow and her kids, setting their belongings on the public sidewalk, changing the locks and securing the place with yellow police tape till auction day.
It's this latter use of the word "protect" we must keep in mind as we read that U.S. District Judge Tena Campbell ruled June 25 in favor of the Southern Utah Wilderness Alliance and the Sierra Club in their suit against three counties in southern Utah, in a case concerning county roads through the so-called Grand Staircase-Escalante National Monument.
In the waning days of the late Clinton administration, the president decided to override the objections of local states and counties -- paying off his supporters on the extreme fringes of the environmental "protection" movement (as well as any supporters who might have controlled, say, Indonesian coal deposits, hardly anxious to compete with high-quality coal newly scheduled to be mined in southern Utah) by waving his magic executive pen and declaring a great swatch of southern Utah off limits for productive use ... possibly including coal mining.
(You remember coal. We burn it to make electricity, and Utah's is particularly hard and clean-burning. Try telling the residents of California now suffering rotating power blackouts they're being "protected" from the over-hasty development of Utah's coal reserves.)
At any rate, the three counties in question decided to make use of an 1866 federal law which provides them "the right of way for the construction of highways across public lands not reserved for public uses."
Congress repealed that law in 1976, but existing rights of way were "grandfathered in" and thus still protected. So the Utah counties went in and re-graded the roads they intended to keep open through the new "monument," around which the green extremists now planned to wrap the legal equivalent of yellow police tape -- "protecting" vast acreages against any trespass or productive use by the people of the United States.
In their lawsuit, the environmental groups contended the roads in question were not protected under the law because they were not actually "built"; did not access particular destinations, and in some cases were on land already "reserved for a public use" ... coal development, oddly enough. The counties responded that the roads were important transportation links and had been in use since the 19th century.
A federal court ruled in 1998 that the counties' maintenance of rights of way would not constitute trespass onto federal lands, but then stayed its decision pending a ruling by the Bureau of Land Management on whether the rights of way were valid (an odd measure of deference for an independent branch of government to show mere appointed regulators.)
Not surprisingly, the green-infiltrated BLM concluded in 1999 that with one exception, the right-of-way were not valid.
Judge Campbell's ruling now upholds the BLM's determination that the counties did not have rights of way on 16 of 17 routes -- a precedent which could affect control of tens of thousands of routes and trails on public lands.
Thus are effectively barred the hunters, the shooters, the hikers, the fishermen, the rock collectors, the off-roaders -- thus is the human-hating agenda of the Green Extreme made flesh.
"No more will the counties be able to undermine the protection of national parks, Bureau of Land Management lands and wildlife refuges with the blunt edge of the bulldozer," crows Heidi McIntosh, an attorney and "conservation director" for the Southern Utah Wilderness Alliance ... using that interesting word "protection," again.
Significantly, Judge Campbell said the goal of Congress in repealing the 1866 law, "that federal lands be governed in accordance with national interest, would be undermined if the interest of the various states, rather than the interest of the federal government, governed the validity."
In fact, the only way the federal government is authorized by the Constitution to control any lands within the several states is to "purchase by the Consent of the Legislature of the State in which the Same shall be, (places) for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings."
Has the Utah state Legislature consented to sell the federal government this "Grand Staircase-Escalante National Monument"? Does the federal government need all this land for "Forts" and "dock-Yards"? Has the federal government, in fact, ever attempted to buy this land from the state? How much did it offer? Cash or check?
Judge Campbell here vacates, violates, and eviscerates the 10th Amendment (an integral part of the Constitution which she has sworn an oath to protect and defend) -- the amendment which informs us that in fact it is the powers and prerogatives of the states -- not the sharply limited interests of the central government -- which must take precedence, since "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to state states respectively, or to the people."
Of course, Judge Campbell is not the first federal functionary cynical enough to look at the return address on her paychecks and promptly turn this vital "default setting" of the constitution upside down.
But she's still wrong.