Posted on 01/03/2003 10:20:05 AM PST by farmfriend
Ruling: Private logging must comply with ESA
PORTLAND (AP) -- A Portland judge recently ruled that Oregon's state forester must hold private landowners to tighter logging regulations.
U.S. District Judge Anna J. Brown ruled that the state must ensure that the private logging projects it approves adhere to the federal Endangered Species Act.
The ruling was in response to a February lawsuit five conservation groups brought against State Forester James Brown, who reviews all logging in Oregon to see that it complies with the state Forest Practices Act. The five groups said Brown routinely violated the U.S. Endangered Species Act by approving clear-cut logging in northwest Oregon that leads to landslides and erosion harmful to protected coho salmon.
The decision raises the environmental bar for private-lands logging, now the mainstay of logging in the Northwest and often more closely overseen by the state than the federal government.
Trying to head off a broader ruling on whether such logging is harming salmon, the state, joined by timber industry groups and forested Tillamook County, asked Brown to dismiss the case. They said the lawsuit was misplaced because it's not the state's job to enforce federal law.
But the judge rejected the state's arguments, saying the state forester is liable if he authorizes actions that harm endangered species.
The judge did not rule on whether state-permitted actions are in fact harming species, and state officials strongly deny that they are. But by refusing to dismiss the case, the judge clears the way so she can decide that question.
"The idea that they don't have to show they are complying with the Endangered Species Act has been a pretty prominent piece of their defense, and now the judge has taken that away," said attorney Patti Goldman of Earthjustice, which represents the conservation groups including the Pacific Rivers Council, Audubon Society of Portland and Native Fish Society.
If the judge does determine the state is allowing harm to protected species, the conservation groups want her to order the state forester not to allow logging on steep slopes, along streams and in other sensitive sites. Such a ban could affect thousands of acres of private timberlands in northwest Oregon and echo through other parts of the state with species issues, prompting what landowners may see as onerous new mandates.
"It could create a whole new atmosphere for forest stewardship in Oregon, and not necessarily a good one," said John Poppino, president of the Oregon Small Woodlands Association, which intervened in the lawsuit on behalf of the state.
Assistant State Forester Charlie Stone played down last week's ruling because it did not address the underlying issue of whether state-approved logging harms coho salmon.
"It was a ruling simply that she did not find the state arguments powerful enough to dismiss the case out of hand," he said.
We live in, possibly, the most litigous society there has ever been. I think this is because we seem to be living in one of the most regulated societies there has ever been. No one is actually left with personal descretion nowadays, it's all been usurped by regulation.
There is a behavioral concept of controll/ counter-controll. Every controll imposed on a person or group results in a counter measure toward the controlling authority. The system is set up so that the legal system is the primary continuum for that expression. I believe that what we see as superffluous litigation is frequently just the expression of that counter controll response. I think that it is frequently misguided expression in whom it is aimed at (like a bad day at work resulting in kicking the dog an yelling at the kids instead of kicking the boss, or freepers attacking lawyers instead of the law and the lawmakers). Sometimes it isn't completely misdirected. Like malpractice suits against doctors. The medical system is totlaly controlled by the medical industry. No one can have access to any part of the system except through a physician (heck, I can't even buy a simple anesthetic for when I need to sew up a knife wound or something. Physicians have outlawed that.). This total controll of the health care system places a persons health care not under his own controll, but under the controll of the physician controlled regulatory agencies. A lot of suits are, in reality, people saying "so you want to controll me? And then you let me down? well I'll show you." when the assumed superiority of the system fails thorugh an individuals doctors errors. It's really the sytem that is more at fault than the doctor, but the doctor is the only one available to attack.
I think that the rise in litigation is directly related to the amount of controll (number of laws) placed on the population at large. It wasn't this way 50 years ago (except in subhuman places like NYC). But we weren't very regulated 50 years ago.
Political differences aren't the reason. Both sides always seem to think the other is the evil lawyer side. the democrats bash republican lawyers and judges over the florida hanging chad affair and the Republican bash democrat lawyers and judges over Lautenberg and such. Likewise liberals complain about the legal abuse and power of the NRA and conservatives complain about the legal abuse and power of the ACLU. You could take both sides rethoric and substitute names and it would be impossible to say which was which. Everyone blames the lawyers and the courts, but no one wants to take the time to understand what the law is or how it works. Prior to the internet, I used to spend a great deal o f time at the courthouse law library. I rarely saw anyone there, and when I did it was always an attorney or legal professional. Never a private citizen, the ones who are really in charge of it all. Almost never see uninvolved parties in a courtroom observing procedures either. How many lawyer bashers here, or on the other side, do you suppose have ever even bothered to read a case or suscribe to a legal research service? Most seem to want to place blame and make radical changes based on their own ignorance of the system. they just have this mythological idea of evil lawyers and judges running roughshod over their rights (makes no difference which side it is). It isn't lawyers and judges that are the problem, it's you and me. Ask almost anyone you find complaining about lawyers and judges to name their local state district judges and exactly what their complaints are against them. Ask them the procedures for retaining or removing them. You will usually not get an answer. If you get an answer it will often be innacurate or completely erroneous.
I wish your reply were not so stimulating to me as this my favorite ranting subject and you've got to stop pushing my buttons
Oh, come now. You know I wouldn't do that! :)
I ask as you seem to object to emotion!
I don't really object to emotion. There are many good things to say about emotion. Someone is bound to think of one eventually.
So ... Emotion. Well, ... I have nothing against emotion, I've actually known many emotional people. In fact, ... some of my best ... friends ... have been ... emotional.
Actually, I'm more of a pragmatist than an objectivist. Objectivism frequently does fall within the framework of pragmatism. So does emotion on ocassion. What works is all I am really concerned with. Or the consequences of what works.
It doesn't sunset, and it derives its authority by treaty. There is one MAJOR change that can be made that would make a great deal of difference.
From Natural Process, pp377-80:
[Snip] Proponents for such multilateral treaties claim that they supercede the Constitution, per Article VI, Clause 2:The Endangered Species Act (ESA), Title 16, Chapter 31, Subchapter II Section 1533 of the U.S. Code, assigns responsibility for enacting rules and regulations to the Secretary of the Interior (or the Secretary of Commerce). The text reads,
"Whenever any species is listed as a threatened species pursuant to subsection (d) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species."
The delegated powers in this law are so broad that the rule-makers and regulators have the effective power to make law. They define illegal behavior, redefine the burden of proof, set penalties, provide enforcement personnel, and administer punishments, effectively combining all three (supposedly) separate and co-equal branches of government into one. The U.S. Constitution prohibits assignment of legislative authority by the Congress to the Executive Branch under both the Enumerated Powers Principle and the Separation of Powers Principle. Consolidation of legislative power into administrative government is clearly unconstitutional in practice, even if there are tenuous threads of authority that lend them supposed legitimacy. How do they get away with it?
The Endangered Species Act supposedly derives its authority to take private property from multilateral treaties, principally the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, that entered into force on May 1, 1942, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) that entered into force on November 1, 1983 and the Convention on the Conservation of Migratory Species of Wild Animals (CMS) 1 November 1983.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
This claim of treaty authorization ignores the facts that treaties are authorized UNDER the Constitution. Therefore, any treaty that violated it would be void, because:
1. The Constitution and the Declaration of Independence acknowledge property rights as unalienable and stated that the purpose of government is to secure those rights.
2. The officers who negotiate and ratify treaties take an oath to abide by the Constitution. They do not have the legal authority to negotiate, ratify, or enforce an illegal document.
Supreme Court decisions have prohibited treaties that violate Constitutional provisions because government lacks the authority to conclude an agreement that violates Constitutional rights.
The Constitution specifies treaties concluded among sovereign nations. It is not possible to conclude a treaty with an unspecified composition of governments capable of post facto reservations or changes in scope and application. Post facto changes are effectively changes in the terms of the treaty after ratification. Suits in Federal Court to extend the scope and application of the ESA citing the an extended interpretation of a treaty are in violation of the 11th Amendment that prohibits extending any suit by or for a foreign power, to any of the United States.
The connection between the ESA and its authority in CITES has even less in common with its practical administration or the purpose of the treaty, as ratified by the Senate. The current thread of "logic" is that economic uses of land that alter habitat are equivalent to trading in endangered species. This assertion may be technically attributable to economic theory, however, to believe that this was intended by those who ratified CITES is dubious.
The ESA specifically prohibits any "take" of endangered species as follows in USC 1532:
(19) The term "'take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
CITES was sold as a means to protect endangered species by outlawing trade in animal commodities such as ivory. (The theory underlying CITES has been completely discredited in practice. The black market nearly destroyed these animals in Africa. As it turns out, the best way to assure protection in perpetuity is private management, because the owners of the animals have reason to protect them to maintain future cash flow.)
There is no authority to take the use of land in this definition because there is no definition of "take" in the CITES at all. The UN has such a definition in the Convention on the Conservation of Migratory Species of Wild Animals (CMS) Article 1, Chapter 1 that reads:
i) "Taking" means taking, hunting, fishing capturing, harassing, deliberate killing, or attempting to engage in any such conduct;
Note that the CMS definition (including recursive elements) does not include the term "harm." We did this to ourselves, folks. This is a provision of the ESA that could be reformed by Congress as is the scope of powers illegally assigned to the "Secretary" (the rest may require the Supreme Court). There is no basis in treaty law that allows an attribution of "harm" as a basis for taking private property, let alone the potential for harm. If the customary application of the ESA is to control the use of private property in the interest of the enforcing agency instead of species protection, then the ESA is clearly unconstitutional in practice and destructive to its purported intent. There I go again.
1. Save considerable keystrokes in the future by eliminating the redundant second "l" in the word control.
2. In your search for "truth," study the contrasts in various philosophies as philosophy is defined as the "search for truth."
I really like objectivism without the objection to all mysticism, especially religion. That may seem like a contradiction to some, but I'm seeing the greatest society in history that grew great while engaging in a mystical mix of scientific objectivism and religious mysticism, backslide mysteriously into a malevolent mysticism of pagan beliefs reminiscent of the dark ages.
This worship of the creation, rather than the creator, along with a government of laws regressing toward a government of paganistic men and women who write laws putting protections of all other species ahead of mankind and womankind, leads to the election of lawmakers that write laws that reward environmental lowyers with legal fees at taxpayer expense, simply for filing legal allegations with no basis in science, whatsoever!!!
Even if you are a pragmatist, which is my least favorite "ism" as it is only based on the principle of expediency, you might be pursuaded to become as emotional as I get about the above, since it doesn't work for the good of anyone, except lowyers. If it doesn't work, pragmatists don't like it, right?
Well, I for one, am neither oblivious or ignorant of the legal process and the process for removing anyone from positions of responsibility. Like you, I've spent time in the law library and even got involved to the point of total immersion in the local political process. I've been invited to sit on the bench with an elected judge while he adjudicated and visited long in his chambers afterward about his solomonesque decisions. I admired his patience and knowledge and especially his frustration with the laws written by other lowyers elected to high/low office, depending one your level of contempt for lowyer/politicians.
I agree that the forces of evil can invade either camp in an on-going feud and that's what you accurately described. My feud is with mystical liberals in positions of power who pragmatically believe the constitution is a "living breathing document," subject to each cause of the activists that spring up from our leftist dominated institutions of higher/lower learning.(now indoctrination)
Have you ever read "The Making of America," by Skousen?
Yes, if you or anyone else could write one that would pass muster with both the people and our LIBERAL ACTIVIST COURTS!!!
The sad thing is the initiative process of "Direct Democracy" has so intimidated elected officials that it has turned them all into spineless jellyfish. In our state, it's become an industry of absurdity and legislation by easily swayed public mood, cancelled by elitist LIBERAL ACTIVIST COURTS!!!
Clean Water Authority Restoration Act of 2002 - Amends the Federal Water Pollution Control Act to replace the term "navigable waters," throughout the Act, with the term "waters of the United States," defined to mean all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution.
Clean Water Authority Restoration Act of 2002 - Amends the Federal Water Pollution Control Act to replace the term "navigable waters," throughout the Act, with the term "waters of the United States," defined to mean all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution.
COSPONSORS(28), ALPHABETICAL
Rep Baldwin, Tammy - 9/18/2002
Rep Blumenauer, Earl - 10/24/2002
Rep Bonior, David E. - 9/18/2002
Rep Borski, Robert A. - 7/24/2002
Rep Brown, Sherrod - 9/18/2002
Rep Davis, Susan A. - 10/10/2002
Rep DeFazio, Peter A. - 7/24/2002
Rep Dingell, John D. - 7/24/2002
Rep Engel, Eliot L. - 10/10/2002
Rep Eshoo, Anna G. - 10/10/2002
Rep Frank, Barney - 11/12/2002
Rep Hoeffel, Joseph M. - 9/18/2002
Rep Honda, Michael M. - 11/19/2002
Rep Jones, Stephanie Tubbs - 10/10/2002
Rep Kildee, Dale E. - 9/18/2002
Rep Kucinich, Dennis J. - 9/18/2002
Rep Lowey, Nita M. - 10/10/2002
Rep Markey, Edward J. - 10/24/2002
Rep McCollum, Betty - 9/18/2002
Rep Miller, George - 11/12/2002
Rep Norton, Eleanor Holmes - 9/18/2002
Rep Pascrell, Bill, Jr. - 9/18/2002
Rep Rangel, Charles B. - 9/18/2002
Rep Rivers, Lynn N. - 9/18/2002
Rep Sanders, Bernard - 9/18/2002
Rep Schakowsky, Janice D. - 10/24/2002
Rep Visclosky, Peter J. - 11/12/2002
Rep Waxman, Henry A. - 10/10/2002
S.2780
Sponsor: Sen Feingold, Russell D
COSPONSOR(S):
***NONE***
Don'tcha mean the usual perpa-traitors?
Where it will go is to the media to smear the Repellican majority and the President, if possible, for not being enviro sennnnnnnnsitive.
I have to disagree with that. As I previously posted, the act itself doesn't sunset, but the funding already did sunset at the end of fiscal 1992. Every year since then, there has been a bill in congress to "Reauthorize and Amend the Endangered Species Act of 1973", but to the best of my knowledge, none of them has passed.
Recall that in 1996 (I think it was), Congress passed a moratorium on listing new species until the Act was reauthorized. Clinton overrode that provision by certifying an "emergency" of some kind.
If you read the original 1973 Act, Section 15 (Authorization of Appropriations), no money is authorized after 1992.
Congress may have specifically funded the Dept.s of Interior, Commerce, and Agriculture after 1992 in violation of the original Act.
I have to disagree with that.
I wouldn't call that a material disagreement. I was merely reporting that as a statute it is still on the books and has no sunset provisions.
Have you ever heard of the original 14th Amendment that was in the Bill of Rights? Do a search on "TONAH."
The whole thing he posted? I think you're both 100% correctomundo!!!
So many treaties and laws! What say we just ignore some and militantly enforce the ones the suit our agenda. Why not? Everybody else isa doin it! Don't get upset, just go along to git along... right? Where are you're priorities, maaaaaaan? Are you afraid of the "web of inclusion" and collusion, concensus and colaboration? Doesn't it just seem right to protect everything for future generations? Where's you "vision for the next thousand years?"(/full blown, dripping sarcasm)
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