ESA perpetuated

The western ravage continues

ESA perpetuated

‘Congressmen speak with forked tongues’

By Stephen L. Wilmeth

            I spent a rainy morning recently speaking into a wind deflected microphone held by an NPR reporter. He was determined to reveal the truth why drought provided proof that livestock grazing on arid lands was an environmental train wreck. Time and again he would cue a talking point with a subtle qualifier.

            “Uh … many people believe that grazing on arid lands is unsustainable … how has drought impacted your operation?”

            The fact that 10 inches of rain had fallen and the grass response in the pasture where we stood made it easy to defend my comments, my point was consistent. The conditions we observed were better than conditions of turf health that existed a decade ago. He repeatedly came back with the premise that the current drought signified permanence in resource depletion.

            “Look at the robust nature of the turf … I will enthusiastically embrace conditions right here today over those a decade ago,” I insisted.

            “But, you achieved this with Jornada (USDA Jornada Range Research) support, right?”

            “No … not at all.”

            “But, you had input from New Mexico extension advice, right?”

            “Save for two trusted friends who are now retired, no … not in the least.”

            As the rain continued to fall, the roads got more impassable, and the pasture accepted blessed moisture, that fellow appeared to be incredulous that a steward with the title of rancher could contribute any lasting environmental benefit to arid New Mexico. He was polite. He wasn’t condescending, but he was clearly imprinted with a belief system that an individual detached from any umbilical to environmental correctness can not to be trusted.

He stood there with an increasingly confused, predecisional mindset.

Perhaps a future ‘All Things Considered’ will reveal his real assessment, but that day he saw something, not from the past, but from conditions and management of 2013. There stood complexity of grass reaching its full genetic potential just like the accounts of 1880 or 1924.

It was a simple model of mortal stewardship, and … the grace of God.

            Washington is no different

            The war on the West is intensifying.

The laws used to wage the war and shape environmental talking points are the very laws being used to expand the reach of Washington. Examples are abundant, but every Westerner should pay special attention to the committee work for Interior, Environment and Related Agency Appropriations.

Start with their Forest Service discussions.

            As we watch the annual ‘Forest Service Comprehensive Management, a guide to deadly errors in pyrotechnics’, we should know the agency is about to get a big pat on the back for its revenue obliteration mission. The committee ignores its deplorable management and intends to fund wildfire fighting on the basis of adopting a ten year rolling average fire suppression expenditure strategy. In this approach, Congress won’t revisit any Forest Service buffoonery. Rather, the more the agency spends the more their budget will increase. That equates to a $559 million all-agency increase for 2014 wildfire expenditures to a whopping $4.08 billion. Within the Forest Service operating budget itself, tax payers will be expected to shell out an additional $149 million to bring it to just over $5.3 billion.

            It pays to be inept in government. In fact, it pays handsomely.

            Funneling monies between expense categories will also stop. Unlike a household budget that requires mandatory limitation of expenditures if other categories exceed expectation, the Forest Service will not be constrained by limiting spending elsewhere to pay for their conflagrations. Fire will no longer limit environmental priorities.

Congress will also award over $100 million to sop up more, ever diminishing private property in the West.

Evidence of that sovereign destruction is seen in amendments to the appropriation funding. California Congressman Calvert proposes accepting ranching allotment surrender donations for the purpose of environmental mitigation. Such lands will no longer be used for “multiple-use” as FLPMA promised, but will be stripped of the very presence of ranching by removing cattle, fences, roads, personnel, their families and their activities, and their ongoing preferential right to graze lands into the future. The outcome will assure wildlife habitat, landscape level wildlife domain and connectivity. Ranchers, of course, would be free to continue their multigenerational ranching heritage by relocating to private lands elsewhere.

Where those ranchers will go or who will be uprooted to secure such alternative private lands in the process isn’t stated. That issue is silent as is its inevitable destruction of Customs, Culture and the family units.

How can there be any reform if that kind of leadership is allowed in Washington?

To ESA

Congress is a highly compensated, volumetric bladder.

The more the West is diminished and segmented, the more it is abundantly clear the Endangered Species Act is a most destructive tool being used in the blitzkrieg. The actions of Congress in perpetuating and increasing the juggernaut have resulted in catcalls for ESA reform, but there remains no elected representative who has placed his or her political future on the line. No blood is being spilled except out in the hinterlands where Americans continue to attempt to hold their heritage together.

It is time to call these masquerading charlatans out.

The Endangered Species Act exists only on the basis of continued funding. The Act itself expired years ago. Its continuation is only prolonged by the subtle wave of the appropriations process. It exists in annual description from this committee, but it gets buried within the other arrayed narratives culminating in an annual consolidated appropriation law that must pass both houses of congress to fund the government. For 2014, Endangered Species has been allotted $179.7 million.

By passing the consolidated spending Act, Congress is implicitly blessing the continuation of ESA. In truth it is a sacred cow. It exists behind that ‘wink, wink knowledge of a higher calling’ shared amongst the ranks of those people who have taken the oath to protect our Constitution.  Who are the western legislators who profess to be offended by ESA?

            Actually, it is easier to reveal who they aren’t.

The cry for reform comes on party lines. The voices are from Republicans and the triggermen must come from the House in matters of spending. Most array themselves within the ranks of reformers with their rhetoric, but few demonstrate intent. The guide to the western reformers can be gleaned from who didn’t vote for the Consolidated and Further Continuing Appropriations Act last March.

            Only five western congressmen from a potential field of 42 voted against the Act. There were no Republican votes against the funding from the states of Alaska, Utah, Oregon, Nevada, Colorado, Montana, and, my home state, New Mexico. The list of Congressmen standing against ESA on the basis of their vote against its continued funding consisted of Representatives McClintock (Ca), Hastings (Wa), Simpson (Id), Salmon (Az,), and Lummus (Wy).  

What should we do about this? Your assignment is to ponder that … for the 2014 elections.

Stephen L. Wilmeth is a rancher from southern New Mexico. “I must admit it pained me greatly to find not a single vote against the spending from Utahans … I had such faith.”

Wilmeth raises the issue of the ESA not being reauthorized.  He's correct, but its the section authorizing appropriations that has expired.  The CRS explains it this way:

 

There is a difference between the statutory authority to carry out an action and the authorization of appropriations within a statute. The ESA contains both statutory authority for certain activities and a provision authorizing appropriations. Section 15 (16 U.S.C. §1542) is the provision authorizing appropriations—through FY1992. As a result, the following questions are sometimes raised: (a) are the act’s various prohibitions and authorities still in effect; (b) what are the House and Senate rules concerning appropriating in the absence of a current authorization; and (c) what would be the effect of a failure to appropriate funds for the agencies (primarily for FWS and NMFS, but also Coast Guard, and Secretaries of Agriculture and Treasury) to carry out their responsibilities under the ESA?

Are ESA Prohibitions and Authorities Still In Effect?

Because the Section 15 (16 U.S.C. §1542) authorizing appropriations expired in FY1992, it is sometimes said that the ESA is not authorized. However, that does not mean that the agencies lack authority to conduct actions (Sections 4, 6-8, 10, and 11; 16 U.S.C. §§1533, 1535-1537,1539 and 1540), or that prohibitions within the act are no longer enforceable (Section 9; 16 U.S.C.§1538). Those statutory provisions continue to be law, even if no money were appropriated.10  The expiration of a provision authorizing appropriations does not end the statutory obligations created by that law. The U.S. Supreme Court has long held that “the mere failure of Congress to appropriate funds, without further words modifying or repealing, expressly or by clear implication, the substantive law, does not in and of itself defeat a Government obligation created by statute.”11

Moreover, Section 11(g) (16 U.S.C. §1540(g)) “allows any citizen to commence a civil suit on his own behalf” on various broad, specified provisions of the act. This option would still be available, regardless of agency funding. Consequently, persons carrying out acts prohibited by ESA might still face citizen suits, even if FWS or NMFS were temporarily unable to carry out their enforcement responsibilities due to lack of funds. The possibility of citizen suits could have the potential to dissuade many parties from carrying out such prohibited acts.

What Are House and Senate Rules for Appropriations?12

Both the House and Senate have long-standing internal rules that distinguish between authorizations and appropriations and provide for the separate consideration of legislation containing these types of provisions.13 This distinction, however, exists for the convenience of Congress and does not affect a measure’s statutory force when enacted into law. Either chamber can choose to observe or waive their rules during the course of the legislative process. Clause 2 of House Rule XXI prohibits consideration of measures or amendments that contain unauthorized appropriations. Further, clause 5 of House Rule XXII prohibits consideration of conference reports containing unauthorized appropriations. House rules additionally prohibit appropriations in legislation not reported by the Committee on Appropriations (Rule XXI, clause 4), amendments thereto (Rule XXI, clause 4) or conference reports (Rule XXII, clause 5). These rules are enforced via points of order on the floor. The House Rules Committee, however, may report a special rule that sets procedural parameters for the consideration of an appropriations measure. This can include the waiver of rules prohibiting unauthorized appropriations for any specified floor amendments, as well as the measure itself.14 Special rules can also waive points of order against provisions in a conference report on an appropriations measure. In order for these waivers to occur, the House must adopt a special rule prior to consideration of the measure or conference report.15 Senate rules also distinguish between authorizations and appropriations and prohibit unauthorized appropriations in both committee and floor amendments, except in specified circumstances (Rule XVI, paragraphs 2 and 4). This prohibition does not apply to conference reports. This rule is enforced via points of order during consideration, but its application may be waived by unanimous consent.

As you can see, both the House and the Senate must undertake a special rule to appropriate money for the ESA...and they do it every year, "without further words modifying or repealing, expressly or by clear implication, the substantive law."