Friday, January 8, 2010

HOW TO WIN THE WAR / Revised & Clairified

Breaking the laws
Lying to Congress & The Public and
Managing Our National Herds to Extinction

From this Constitutional Law paralegals' POV (click on title above to see my L.E.G.A.L. - Eze blog), this is the way I see things with the wild horse & burro v. BLM Wars;

We are never going to win this war if we all dont get on the same page and focus on ONE THING at a time, and a good place to begin to STOP THE MADNESS is set forth a legal challange of all the mass removals and/or declimations of our wild equines and the zeroing out of the herds and the taking away of their lands. In that regard, there are serious violations by the DOI/BLMs administration of the WH&B Program that have NEVER been raised in any court of law that I am aware of...and I believe I have reseached these issues sufficiently enough to know they are NOT frivlious and do have merit.

While there are a number of problems that need to be addressed regarding the overall mis-management of the WH&B Program, the main thing that we all need to be fighting for AT THIS TIME is to see to it that the herds maintain their statutory right to remain free and forever wild on their traditional rangelands, and yes, this means also in viable numbers but that is another issue altogether.

The WFH&BA of 1971 is a federal statutory law, the highest in the land. In it, it requires the BLM to let the horses (and burros) have PRINCIPAL USE of their historic lands. This is something we all know the BLM HAS NEVER recognized, and I dont think ever will, unless WE MAKE THEM. How can we make them do that? By challanging them vigorusly through the courts on their nullification of statutory law. That is a seperation-of-powers issue of Constitutional proportion, as only the legislature is empowered to make (or nullify) the laws. When some one else, govt agent or agency, illegally delegates the law-making powers of the legislature onto themselves, the courts take it very seriously as is an impermissable delegation of authority.

Another federal statutory law that the DOI and the BLM are ignoring is the "exemption clause" of the Federal Land Planning & Management Act. Sec. 302(a) says; in relevant part,

"where a tract of the BLM lands has been dedicated to specific uses according to other provisions of law, it shall be managed in accordance with such laws."

In effect, this means that ANY LANDS specifically designated for a certain purpose prior to FLPMA is EXEMPT from FLPMA requirements. Since the WFH&BA of 1971 was passed before the FLPMA Act (in 1974 I think) only stands to reason and makes sense that the traditional lands where wild horses used to roam in 1971 would be exempt from FLPMA requirements, since the provisions of the WFH&B Act of 1971 ALREADY specified that the lands were to be used PRINCIPALLY by wild, free-roaming equines.It really is that simple when you break it all down....It is the law after all, as is written in black and white. There are no "gray areas" that I can see here that would cloud up these arugments.

So, what are FLPMAs land use requirements that historic wild horse and burro lands are SUPPOSED TO BE exempt from? The answer is, astonishing as it may seem, "MANDATORY multi-use" and "sustained yield" (sustainability of profits) These are considerations that, BY LAW, DO NOT apply to WH&B lands.

Although the language of the WFHBA of 1971 suggests allowance for discretionary "other uses," of wild horse and burro lands, any "other use" IS SUPPOSED TO BE predicated on the understanding that the equines should have PRINCIPAL USE of their historic lands. In essence, the WFHBA of 1971 granted lifetime tenure to the wild ones to remain FOREVER free on their historic lands, NO MATTER WHAT other use of their lands is planned, as long as they have principal use.

While FLPMA does require that all land use management plans be formulated even for lands that were previously designated for a certain use,...any revisions to that prior designation would have to be in conformance with the applicable PRE-EXISTING statutory law, and NOT serve to act contrary to them. The bottom line, land use plans such as set out by statute in the WFHBA CANNOT cbe "trumped" or controverted by a later administrative revision of those plans IF they run contrary to that statute. Such is the case here with the BLMs application of the FLPMA laws regarding its (limited) authority to revise already exisiting land use plans or designations.

In this light, the BLMs managment, or rather, its REVISIONS to the pre-existing "management plans" set out in the WFHBA, thru land use planning and RAC recommendations allowing for the zeroing out of whole herds can be seen for what it really actually is, highly illegal and contrary to relevant existing statutes. The equines CANNOT be legally removed from their historic rangelands by any administrative revision, or under any circumstances at all (less than emergency) -as goes against the statutory provisions of the WFHBA which MANDATES that they be the principal users of the land. The only thing that could remove the statutory entitlement of the equines to remain upon their historic land is revision of that part of the statutory law entitling them to be there,i.e.; such as the ROAM Act would do. It BEGINS with striking out that very provision which grants the wild equines the statutory right (entitlement) to remain on their lands.

Remember these words (below) as are the exact language of the law and VERY important in this case. I have given it to you (above) and I will give it to you here (below) again;

"where a tract of the BLM lands has been dedicated to specific uses according to other provisions of law, it shall be managed in accordance with such laws."

Thus, the statutorily designated special use of lands as set forth in the WFHBA of 1971 should be managed in accordance with the applicable statute (the WFHBA)and said special uses should be NOTED, as persuant to the provisions of FLPMA, in any Land Use Management Plans. The new land use plans should be formulated in consideration of and AROUND those previously designated "other" special uses. So what does this mean? That land use plans centered in or around or having to do or effecting wild free-roaming horse and burro lands, MUST clearly specify in those land use plans, that the lands are designated as principally for wild equines, and that any proposed new plans must work around and PRESERVE and PROTECT that special use,...NOT get rid of it.

So here are THREE very important federal statutory laws that DOI/BLM is ignoring and/or mis-using, all nullifying the statutory protections of the WFHBA, and causing the BLM to think they are ok in zeroing out the herds and taking away their lands.

Some have questioned as to whether or not these are valid legal arguments to raise, reasoning that because Salazar came out a year or so ago and made a proclaimation that "from now on,"...."all land use planning will be focused on energy exploration" and/or a "biggest bang for the buck" (sustained yield) theory, as if a proclaimation by a dept head could nullify statutory law...NOT. Not even a presidential executive order is immune from Constitutional scrutiny in a court of law, when it tends to nullify statutory law. Nullification of law by any person, "body," or executive department other than our legislature, is a very serious offense.

Form your arguments around these issues alleging nullification of statutory law & mis-application of FLPMA. FORCE the Powers-That-Be (PTB) to HONOR AND ENFORCE these three federal statutes and there will be no wild free-roaming horse or burro "management problems," as there would be nothing much for the PTB to decide (except for appropriate AMUs). If the letter of the law were followed in these cases, the wild ones will be able to stay on their historic rangelands FOREVER FREE, no matter what other "secondary" use of their land, was the original intent of the 1971 Act.

***SEE NOW: Westfall Act; Federal Laws Addressing Gov't Liability

Federal Employees Liability Reform and Tort Compensation Act

The Federal Employees Liability Reform and Tort Compensation Act of 1988 ("Westfall Act"), 28 U.S.C. § 2679, amended the Federal Tort Claims Act to provide for the substitution of the United States as a defendant in any action where one of its employees is sued for damages as a result of an alleged common law tort committed by the employee within the scope of his or her employment. Congress enacted the Westfall Act to respond to the United States Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292 (1988), which limited a federal official's absolute immunity from tort claims to situations where the official's actions were "within the outer perimeter of an official's duties and . . . discretionary in nature." Congress saw the Westfall decision as an erosion of the common law tort immunity formerly available to federal employees.

*In other words, governments ARE NOT immune or free from liability for the of tortous acts committed by its employess.

1 comment:

Mz.Many Names said...

I am posting a comment here to my own blurb because I have had some feedback from some folk who tell me I am wrong about my argument that WFH&Bs and their historic rangelands cannot be "managed" (zeroed out) through the use of land use management plans under FLPMA. I didnt want to mess up or confuse the original blurb any more than it already may be for a layperson, so I am writing my response to them here.

As "proof" of their theory that WFH&B lands can be "managed" under the land-use planning process,they site me this section of FLPMA law:

Sec. 202. [43 U.S.C. 1712] (a) The Secretary shall, with public involvement and consistent with the terms and conditions of this Act, develop, maintain, and, when appropriate, revise land use plans which pro-vide by tracts or areas for the use of the public lands. Land use plans shall be developed for the public lands regardless of whether such lands previously have been classified, withdrawn, set aside, or otherwise designated for one or more uses..."

Now upon first reading of this you might think that they are right,...the wording does indicate (at first glance) that all public land managment decisions are required to be made through the land-use planning process as laid out in FLPMA ---EVEN if those lands were previously designated for something else. HOWEVER, upon thinking about it and upon further study it becomes clear that there are TWO WORDS in the text of that law that they are overlooking the importance of, regarding "revising" land use plans. Can you guess what those two words are? I will highlight them in the text of the law (repeated again) below;

4. Inventory and Identification of Public Lands. The Secretary must maintain an inventory of all public lands and their resources and other values, giving priority to areas of critical environmental concern, and ascertain the boundaries of public lands. The Secretary also must develop, maintain and WHEN APPROPRIATE, revise land use plans whether lands have been classified, withdrawn, set aside, or otherwise designated..."

So, the question is then,.. when is it "approprite" to revise a previous designation? Well I would say just about anytime as long as that revision dosent do (can you guess what?) You got it, that ole "nullification of statutory law" thing again.

So my argument STILL stands: It IS NOT (and never will be) APPROPRIATE to develop, implement or revise land use plans to the extent that they have the effect of nullifying EXISTING statutory law -it would be an INAPPROPRIATE use of the land-use planning process, and results in an impermissable Un-Constitutional delegation of authority. ONLY THE LEGISLATURE CAN MODIFY OR NULLIFY (VOID) STATUTORY LAW)

So there you have it, not one but THREE causes involving nullification of statutory law;

1. Ignoring the WFHBA of 1971

2. Ignoring FLPMA Sec. 302(a) that would exempt historical wild horse and burro rangelands from any multi-use or sustained yield requirements.

3.Mis-application of Sec. 202(a) --Inappropriatelty applying FLPMAs land use planning methods as a means of "revising" (nullifying) the WFHBA, allowing BLM to (illegally) zero-out herds..

They just cant do it that way! Not legally. FLPMA was not meant to supercede the WFHBA, so, er, ah, whats up with that?