Writing The Wrongs: News Updates

No Harm, No “Fowl” – if History Holds True

Idaho landowners and leaseholders may find themselves – and their property and lease rights, severely restricted in the coming year.  The reason?  The Greater Sage grouse.  Or perhaps better stated, those who wish to see it become listed as an endangered species.

Though Fish and Wildlife currently has until 2015 to decide if the bird will be listed as endangered, Western Watershed Project, a private environmental group, has sued Fish and Wildlife, disputing the timeline stating that “the Sage grouse can’t afford to wait to 2015.”

Meanwhile, in late December, the BLM released two instructional memorandums temporarily governing sage grouse habitat in 10 Western states. One memo covers mining, oil and gas leasing, grazing and other common activities on public land.  The other memo stated BLM employees must consider all applicable conservation measures in large-scale resource management planning for BLM lands that include sage grouse habitat.  The BLM memorandums will remain in effect until individual land-use plans can be updated for each of 68 habitat areas.

Scoping meetings were held throughout the state and much of the west this week by BLM.  27 in all, these meetings are being held to assist the BLM in deciding the fate of 47 million acres of not only public but also private land in 10 western states.  The decision at question?  Whether the lands should be withdrawn from mineral exploration, grazing, and other multiple uses to protect sage-grouse breeding grounds and habitat.

This move comes at the potential expense to individuals, businesses, and industries that rely on the same land without giving them opportunity to make responsible decisions on its stewardship and use.

Doug Cooper, president of his family's 7 L Livestock Company ranch north of Casper where sage grouse habitat conflicts with potential wind development. (Emilene Ostlind/WyoFile)

If strategies similar to those already implemented in Wyoming are considered, strategies lauded by environmental groups as “setting the bar”, then landowners can expect to suffer significant rights losses.   Just ask private landowner, rancher and Wyoming resident Doug Cooper.  Cooper, whose land has been in his family since his grandmother homesteaded it in the 1890s, had developed and stewarded his family’s property responsibly, and as a result, had significant portions of his acreage that remained ideal Sage grouse habitat while still allowing him to run several hundred head of cattle. He had also begun negotiations with Clipper Windpower to begin harvesting wind on his ranch, a move that was expected to bring his family $2.4million over 30 years.  Today, because of the effectiveness of Cooper’s personal stewardship, much of his ranch has been coded as “core area”, meaning he is banned from developing it to access his wind rights.  Clipper Windpower has left the table, choosing instead to contract with bordering state-owned lands that were drawn outside the core area boundaries, though they represented the same type of habitat that Mr. Cooper had on his ranch.

“The Wyoming constitution says you can’t lose property right without due process of law,” he (Cooper) says. “It’s shocking to me that we would lose our wind rights.”


Make Way For Grouse – Wyoming vs. Doug Cooper
Sage Grouse Memo Displeases both Sides
(Capital Press)
Millions of Acres In The Balance
– (MineWeb)


Lakeview, Ore.: Jan. 17, BLM Lakeview District Office 1301 S. G St.

Alturas, Calif.: Jan. 18, Sacred Heart Catholic Church, 507 E. Fourth St.

Susanville, Calif.: Jan. 19, Jensen Hall, Lassen County Fairgrounds

Ontario, Ore.: Jan. 23, Four Rivers Cultural Center, 676 SW Fifth Ave.

Baker City, Ore.: Jan. 24, Baker County Library, 2400 Resort St.

Burns, Ore.: Jan. 25, Harney County Senior Center, 17 S. Alder Ave.

Twin Falls, Idaho: Jan. 25, Canyon Springs Red Lion Inn, 1357 Blue Lakes Blvd.

Prineville, Ore.: Jan. 26, Stafford Inn, 1773 NE Third St.

Pocatello, Idaho: Jan. 26, The Clarion, 1399 Pocatello Bench Road




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Private Property or Pure Insanity?

AP Photos

The famous song “This Land is My Land”, originally written in the mid 1940’s included a verse that said,

There was a big high wall there that tried to stop me;
Sign was painted, it said private property;
But on the back side it didn’t say nothing;
This land was made for you and me.

Based on a case that recently made it onto the 2011-2012 docket at the United States Supreme Court, one could wonder if the verse has become the new manifesto of the EPA.

Mike and Chantell Sackett, Idaho small business owners, bought a property in a fully platted subdivision in 2005 that included city water and sewer hookups.  It was the last remaining lot with homes on all three sides, county roads on two, and a view of Preist Lake only 500 feet away.  Imagine their surprise, when after beginning to add gravel to their cleared lot prior to pouring their foundation, they were given a verbal order to halt construction from 3 officials from the EPA, claiming that they were in violation of a wetland area, and subject to fines of $37,500 per day if they failed to effectively CREATE a wetland by removing fill and planting wetland trees and grasses where none had previously existed!

Read More from the Pacific Legal Foundation
another great article by Peter Bella at the Washington Times

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Public Interest or Private Greed?

This relatively unassuming pink house would be just that, if it weren’t the relatively unassuming pink house that belonged to a woman name Susette Kelo, and if this relatively unassuming house didn’t used to be located in the middle of a specific tract of land in New London, Connecticut.  But it is – and because it is, this house is now famous.

This house, in fact, has a distinct history recorded in the transcripts of the United States Supreme Court… where it lost the land on which it originally sat.  The story unfolds like this.

  • New London officials identify a community known as Fort Trumbell and create the New London Development Corporation (now defunct) to acquire a 9 acre portion of the land for economic development.  Their goal – to find a developer to transform the area into an urban village development, attracting shoppers and tourists.
  • New London lures Pfizer to build a new headquarters and office complex immediately adjacent on 26 acres
  • With an agreement that it would pay just one-fifth of its property taxes for the first 10 years, Pfizer spends $294 million on a 750,000-square-foot complex that opened in 2001.
  • New London, unable to complete the acquisition of the nine acres, takes it by eminant domain, claiming public interest in job creation and economic development.
  • The case is pushed all the way to the US Supreme Court, where a 5-4 decision for New London is passed.
  • Sandra Day O’Connor, in the dissenting opinion, states, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”
  • She further argued that the decision eliminates “any distinction between private and public use of property — and thereby effectively delete[s] the words ‘for public use’ from the Takings Clause of the Fifth Amendment.”

So the home owners continued to pursue the defense of their ownership rights, and the city officials finally agreed to pay a settlement to each, and the little pink house got moved to a lot downtown.  Of course, along the way, city officials mentioned that the owners actually owed the city tens of thousands of dollars in back rent for their occupancy since the takings process had begun, but that was thrown out.

In the end, the developer that was to create the new village failed to get his financing, and today, there is a barren lot where a little pink house used to stand.

Pfizer has pulled out after only 8 years, taking 1,400 jobs with them and relocating to a complex they own in nearby Grotten, CT in what they call a “cost saving measure.”  They leave behind what is now New London’s largest vacant building, located next to a 9 acre swath of land that, while undeveloped, has cost the taxpayers $78 million dollars to clear.

At least Pfizer will be familiar with one of their new neighbors in Grotten.  It is also the home of one Susette Kelo.  She used to live in a little, unassuming pink house.

While many states created additional state level protections following the 2005 Kelo Decision by the US Supreme Court, this decision is still prominant in blurring the lines between “public use” and “private interest”.  While Connecticut may seem thousands of miles away, it is decisions like this that concern us as rights holders and property owners in Idaho.

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Dust Free Dirt Wanted

Courtesy of AgInfo.com:

The EPA is out with a new five-year strategic plan that calls for a cleaner, greener, more sustainable environment. But agriculture sees it as a call for an ever-increasing regulatory burden. Farm Bureau Regulatory Specialist Rick Krause says the EPA is looking at reducing farm and ranch dust and banning the widely used pesticide atrazine.

Krause says, “Atrazine is a very widely used chemical and studies have thus far shown that atrazine is safe and effective. And for whatever very small returns that EPA would gain by banning atrazine would be causing problems for farmers and ranchers across the country.”

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Food For Thought…

A couple quotes to whet your appetite…

Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.   That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.    – Pres. James Madison

Regarding the roots of conflict:

Some scholars have in fact stated that all human conflicts are actually conflicts over property: who should own what, when and how. Indeed, the history of mankind is a staggering chronicle of the recurring wars and enslavement by one group over another as they fight to impose their notion of the proper commons:ownership system over others.  –David J. Theroux

and finally…

As federal, state, and local regulations have increased in number and scope, property owners have frequently found themselves unable to use their property and unable to recover their losses. Today, we have an immense problem across the nation of uncompensated regulatory takings of private property. – Roger Pilon, PhD – Sr. Fellow, CATO Institute, in a testimony to the United States Senate, 1995 (ten years prior to the Kelo decision)

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We Will Not Be “Taken”

Federal and state governments seem to be making a practice of abusing the Constitution’s protections for property owners, circumventing their rights through regulatory takings.  By restricting the use of a property owner through regulatory restriction, thus diminishing his or her ability to freely exercise their rights to use, the government effectively “seizes” the land without compensating the landowner for the diminished rights.

For a more comprehensive look at this issue, we recommend this document published by the Cato Institute, which can be downloaded in its entirety here.  An excerpt from the full document is included below.

With regard to regulatory takings, however, the crucial thing to notice is that, absent contractual arrangements to the contrary, the right to acquire and hold property entails the right to use and dispose of it as well. As Madison said, people have ‘‘a property’’ in their rights. If the right to property did not entail the right of use, it would be an empty promise. People acquire property, after all, only because doing so enables them to use it, which is what gives it its value.

Indeed, the fundamental  complaint about uncompensated regulatory takings is that, by thus eliminating the uses from property, government makes the title itself meaningless, which is why it is worthless. Who would buy ‘‘property’’ that cannot be used?

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