‘Twas the week before Christmas and all through Bonner County, a lot of creatures were stirring… because, well, both the Bonner County Commissioners and the Property Rights Council were both still holding meetings. Indeed, this week, the Bonner County Commissioners have an attack on caribou habitat scheduled, and the Property Rights Council will be discussing how to eliminate drinking water protections for county water supplies.
Monday night, the Bonner County property rights council promises a “Commencement of hearings on proposed watershed control ordinance.” In the meeting agenda (pdf), the chairman describes the ordinance as “a proposal to lay the foundation for new county wide compulsory controls on private lands for the benefit of public water system source water quality.”
Then, in a procedure typical of the PRC so far, the Council proposes to have a “discussion/decision” of how exactly the hearing will be conducted, after the “commencement of the hearings.” According to the proposed hearing process, the PRC “shall take testimony” on a specific sequence of subject matter topics, also noting that “The PRC places the burden of proof for new public controls on the proponents of public control. The Proponents must show public controls are necessary and must show that private alternatives are not likely to provide the necessary protections.” It is not entirely clear, however, why proponents would bother to participate in such a charade.
Meanwhile, on the caribou battlefront, the Bonner County Commissioners will attempt Tuesday to monkeywrench the U.S. Fish and Wildlife Service designation of critical habitat for the endangered Selkirk woodland caribou. With an overwhelming portion of the critical habitat on government-owned upper-elevation backcountry lands, and with none of the habitat on developed private lands, the Commissioners’ fit of pique appears to be mostly a knee-jerk reaction to anything federal government related. The Commissioners are evidently demanding that the federal government “coordinate” with the county on the habitat designation where it might conflict with local land use priorities. Of course, the County’s own comprehensive plan acknowledges the caribou habitat, and most of the critical habitat land is already federally-owned, so it isn’t entirely clear where the local land use conflict is.
Whatever it is in the Bonner County government’s egg nog, we’ll pass.
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Here’s the thing to remember. We live in the United States of America. We are a nation of laws. We have a Constitution that gives Congress the authority to pass laws under enumerated powers. One of those powers is provided by the Constitution’s commerce clause. Congress passed the Clean Water Act. The Supreme Court has affirmed that, within commerce clause limits, the Clean Water Act is constitutional.
Under the Clean Water Act, within these jurisdictional limits, you cannot fill a wetland without a permit. If you do so, you are subject to enforcement. If you do so intentionally, you are subject to criminal enforcement.
These are facts. They are not arguable.
Agreed, there is significant uncertainty as to the jurisdictional limits. The Supreme Court has issued an almost impossibly complex test for jurisdiction that the lower federal courts are still figuring out. Still, if you have wetlands on your property, the prudent thing would be to make a phone call to the EPA or Corps of Engineers BEFORE firing up the bulldozer. Filling them first and asking questions later is at your own risk.
Ignorance is not an excuse. And it really shouldn’t be a rallying cry either.
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Holidays are not slowing the rightward march of the Bonner County Property Rights Council. Monday night, the controversial Property Rights Council is sponsoring a “public seminar” on “The Theoretical Basis for a Property Rights Council.” The featured speaker is Sandpoint-based James L. Payne. Mr. Payne is a frequent contributor to the polluter-friendly and Koch-connected Independent Institute and the Foundation for Economic Education. It is unclear how this seminar got officially scheduled — the PRC meeting scheduled for last week was cancelled and prior meetings made no mention of the seminar.
Mr. Payne’s anti-government views are not exactly mainstream. For example, he is critical of government spending, sure. But he’s even opposed to FEMA and government-supported disaster aid. (“The private sector can and does address all of these issues.”) He is sharply critical of environmental regulations, sure. But he’s opposed to regulations designed to prevent major environmental “catastrophes” like the gulf oil spill. Instead, Payne concludes, “In the final analysis, overcoming environmental abuse is not likely to be achieved by governmental dictation. Instead, it is a process of social learning that includes everyone: friends and neighbors, reporters, pamphleteers, teachers, researchers—and companies too, as they discover how pollution hurts their image and their bottom line.” Yeah. That’ll work.
Meanwhile, check out yet another article exposing the Bonner County Property Rights Council. This one from Boise Weekly.
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In the portion of its website labeled “Media Reports Including Errors and Omissions,” the Bonner County Property Rights Council cites a flattering statement from the “National Association of Rural Land Owners.”
“Bonner County, ID is serious about protecting Property Rights. Every County and City in America can learn from this new, innovative approach to protecting property rights. They are just getting started but they have the right idea!”
High praise indeed. But who is this impressive National Association? The organization is not listed as a charity with the IRS and is evidently too small to be required to register as a charity with the State of Washington. Indeed, it appears to be simply one of several websites for the right-wing ranting of a single individual in western Washington.
Meanwhile, not listed in the PRC’s media clippings is a superb article from Trish Gannon at the River Journal. For anyone interested in the Bonner County Property Rights Council, we suggest starting with the River Journal article before taking the recommendation of an ideologue from Issaquah.
UPDATE 11/26/11: The “Media Reports” portion of the PRC website is no longer available from the PRC’s homepage, but the link above still works.
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A great deal of our conservation work in North Idaho depends on attending long boring meetings. We know that people have actual lives, and that going to long boring meetings is not something that most people enjoy. Unfortunately, though, that’s often where work gets done, deals get made, and progress can happen. That’s why we go.
On the other hand, there are a lot of meetings where nothing gets done, nothing happens, and progress is not even part of the mindset. The Bonner County Property Rights Council meeting on November 7th was one of those meetings.
Mercifully short by some local standards, the meeting was still a bit more than an hour of valuable time lost to pointless local bureaucracy. The Bonner County Property Rights Council is a controversial and ideological advisory group established by the County Commissioners to review property rights issues in the County.
On the Council’s substantive agenda were “reports” to be presented regarding their review of County’s watershed protection ordinance and regarding a property owner with a wetlands issue. As it turns out, the Council’s report for both agenda items was that there was no report at all.
Instead, the Council spent most of its meeting time addressing deficiencies in its bylaws as directed by a recent letter from the Idaho Attorney General. Responding to the AG’s criticism, the Council agreed to place provisions in its bylaws to abide by Idaho law when it comes to public records and open meetings – laws that apply to the Council regardless what their bylaws might say. Also responding to the AG letter, the Council removed a problematic provision in their bylaws that required an oath to be faithful to “free market” and “property rights” principles in order to participate. Instead, participants must now “commit” to such principles. Whatever that means.
And finally, the Council magnanimously agreed to allow “all points of view” to be heard in public comment at Council meetings. But limited to three minutes per person. Because, heaven forbid, the Council wastes people’s time.
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The USFWS wetland inventory map. An arrow shows the bulldozed Sackett property.
It took all of 5 minutes to create the above map, using the US Fish and Wildlife Service wetlands mapper. Had the Sackett’s taken the time to to look into it before bulldozing their property and filling it with gravel, or had they made a call to the US Army Corps of Engineers for an advance wetland determination, they could have avoided the legal mess that they find themselves in.
Indeed, it is so easy that since 2008, Bonner County has required this minimal wetlands reconnaissance prior to granting Building Location Permits.
This map is not the final word, because before EPA actions can be enforced by a court, experts will need to discuss, for example, whether the map is accurate, whether the soils are wetland soils, and whether the plants are wetland plants. Foremost, the EPA will need to prove that there is federal jurisdiction, by proving there is “a significant nexus” to “navigable water.”
Ultimately, the Sacketts could very well be right about the non-existence of wetlands on their property. Still, a modicum of due diligence should be a prerequisite for a Supreme Court case of Constitutional due process. It takes very little effort to avoid EPA enforcement actions.
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I felt bad for the boy scout dutifully selling popcorn at the Spokane Albertsons Saturday. It’s a tough job. He was sitting there with his father and what looked like his younger sister raising money for the scouts to go to camp. They were probably there for hours. Although, I’m sure the scout’s troop would put the hard-earned fundraising dollars to good use, I’m less sure about local scout leadership.
An offer by Discovery Land to swap the Boy Scout’s venerable Camp Easton on the eastern shore of Lake Coeur d’Alene for a property on the west shore at Windy Bay isn’t going so well. On the one hand, there’s a lawsuit claiming that disposal of the Camp Easton property would violate the original deeds donating the property to the Boy Scouts. On the other hand there’s a lawsuit against Discovery for failing to close the deal on the property it had intended to swap.
With lawsuits proliferating, it isn’t clear why the scout council just simply reject the wildly unpopular idea at this point. Inland Northwest Council Executive Tim McCandless was recently quoted, “There is no intention to make any decision until the Boy Scout board has what they feel is full information on all aspects of the proposal,” What are they waiting for?
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If you only read what is coming out of congressional offices and only watched Fox News, you’d certainly think that local heroes Mike and Chantelle Sackett from Priest Lake are about to go to the Supreme Court and bring down the whole EPA. Finally, they say, the overreaching federal agency and their wetland tyranny will be shut down once and for all.
Instead, at most, it’ll clarify a difficult procedural point in the Clean Water Act. Indeed, the Sacketts could win their Supreme Court case and still end up with wetland enforcement on their property by EPA. It’s just a matter of how that enforcement gets done.
The Sacketts have challenged a structural legal problem in enforcement of the Clean Water Act. Fundamentally, the EPA says there are wetlands on the property, the Sacketts say there are no wetlands. The question at the Supreme Court is essentially how that dispute gets resolved. The Sacketts say they should get to affirmatively go to court to immediately decide it. The EPA, and the lower courts, say the actual language in the law does not allow such a court challenge. Instead the Clean Water Act suggests that Sacketts can get a permit or they can defend against an enforcement action in a court. It is a major case because a wide range of environmental and other federal statutes are structured similarly.
An imperfect but illustrative analogy is that a speeder is pulled over for going 70 mph in a 55 mph zone. The speeder points to a sign, directly in front of the cop, that says “Speed Limit 70.” The cop issues the ticket anyway. The traditional remedy is that you appeal the ticket in Court. The Sacketts, however, are essentially arguing that they should get to go to court to dispute the facts before the cop even issues the ticket.
The case does raise an interesting question of fairness and “due process” perhaps. The Sacketts argue that the EPA determining that there are wetlands on their property means they either need to get a permit, which can be expensive, or they can be appeal a wetland violation in court, which can also be expensive. However, in truth, due diligence by the landowner, along with competent and honest advice from lawyers and land development professionals, will almost always avoid these wetland problems. (Mike Sackett, an excavation contractor of all things, should know this.)
Instead, in this case, we have an ideologically driven lawsuit by the ideologically driven Pacific Legal Foundation which may or may not decide a fine point of Clean Water Act enforcement procedure. So, don’t believe the hype. To be completely clear, what is not in dispute in the Supreme Court case is: wetlands are regulated; EPA and the Corps of Engineers have regulatory jurisdiction and authority; if you fill wetlands you need a permit; and if you fill wetlands without a permit you are violating the law and you are subject to enforcement. When you get your day in court is the only issue to be determined.
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We were pleased to hear this morning from neighborhood residents near Athol that the Bonner County Planning Commission unanimously rejected a proposal to site a gravel mine just across the Kootenai County line. Residents, worried about noise, truck traffic, dust, property values, and the applicant’s history of environmental problems, convinced the Commissioners that it was a bad idea. (We were unable to attend the hearing, but our new friends in the neighborhood helped to submit our KEA testimony.)
The applicant may appeal the decision to the Bonner County Commissioners, so the fight is not over. Still, the joy in the phone calls, phone messages and emails we received from neighbors this morning was a great way to start off the day.
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The Bonner County Commissioners didn’t even blink when, yesterday, they approved the Sandpiper Shores subdivision on the north end of Priest Lake. The development crams 14 building lots on narrow uplands above a rare and valuable wetland habitat. Ignoring several hours of testimony about wildlife impacts, wetland impacts, and legal inconsistencies, the Bonner County Commissioners unanimously allowed the development to move forward.
The 72 acre site contains more than 50 acres of undevelopable wetlands and highly important habitat. The developer, however, was given approval for a development density as if the entire site was developable. By doing so, the proposed site plan effectively chokes off wildlife passage to and from the wetland habitat. It also makes it impossible for the development to comply with setback requirements and wildfire protection guidelines that would have otherwise been required.
None of which bothered the Bonner County Commissioners for more than a half-second. What little deliberation that did occur focused on whether a proposed boardwalk to nowhere would be limited to “non-motorized” vehicles or, their favored, vehicles “without internal combustion engines.” Our congratulations to the Commissioners for arranging those particular deck chairs so nicely.
We expect that the Commissioners’ thin decision-making will lead everyone to a Bonner County courtroom. It was a bad decision for Bonner County, and a bad day for Priest Lake.
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