Water, land – and the state

By Pat Caldwell
Malheur Enterprise

VALE – At first glance, water and land rights in the American West may seem to be straightforward concepts.

Yet each area comes with a complex array of history, legal theory and perception – and Monday night more than 100 people gathered in Ontario to learn more about that background.

Appearing at a town hall meeting at Treasure Valley Community College, two experts – attorney and Vale native Laura Schroeder, along with San Diego attorney John Howard – talked about water rights and state versus federal control of public land. The program was sponsored by Malheur County Sheriff Brian Wolfe.

Schroeder, a specialist in water rights issues such as acquisitions, sales, contracts and easements, kicked off the session followed by Howard.

Howard helped prepare a legal evaluation central to an ongoing dispute between Utah and the federal government regarding public lands. Advocates of the Utah effort believe the federal government should turn over control of millions of acres of public land to the state.

While water rights issues and the question of which entity – the state or the federal government – should legally control public lands appear to be separate subjects, the speakers noted they are linked by Constitutional themes.

“We have a constitutional pull even in the water debate,” Schroeder said.

How the Constitution relates to water rights issues and the public lands debate proved central themes for both Schroeder and Howard Monday night. A large part of both issues are lodged in U.S. history and how the Constitution has been interpreted over the years through legal cases.

The public lands issue, in particular, appears to be woven into the very fabric of the Constitution, according to Howard.

Howard discussed state sovereignty and the equal sovereignty principal, where all states carry the right to be treated fairly in all ways. However, one of his key points was that the states in the West are entitled to public lands.

He also contended the Federal Land Policy and Management Act – the edict that stipulates how public lands are administrated in the U.S. – is unconstitutional.

Howard said before the act was created in 1976, the primary focus of the government was to “dispose” of public lands. For example, he said, until the early part of the last century, public lands were often sold to help – along with tariffs – fund the government.

The 1976 act officially ended that practice, he said.

“The federal government said the policy up until now is to dispose of the land. Now we are changing our minds, and maybe it would be better if we just kept it,” he said of the shift.

The draw for the town hall session was fueled by the specter of an Owyhee Canyonlands national monument.

A coalition of environmental groups, citizens and businesses has proposed a plan to preserve 2.5 million acres in southern Malheur County, including the Canyonlands.

Supporters seek to preserve the area either through Congressional action – seen as a longshot by many – or by creation of a federal monument designation under the Antiquities Act. Under the Antiquities Act, a presidential proclamation can carve out national monuments from existing public lands. The Antiquities Act, first approved by Congress in 1906 and signed into law by President Theodore Roosevelt, was designed to allow the chief executive to protect areas of historic and scientific interest.

The environmental coalition hopes President Obama, with his term coming to an end, will designate the area as a monument as part of his legacy.

Howard also fielded questions from the crowd on topics that ran the gamut – from mineral rights issues to the authority of a local sheriff regarding enforcing federal laws.

Wolfe said the presentations by Howard and Schroder were part of an effort to educate people regarding public land and water rights issues. Water is an especially acute issue in Malheur County, he said.

“Here we are in the desert trying to be farmers. Without the water, without those rights, we’d dry up and blow away,” Wolfe said.

Malheur County Commissioner Larry Wilson said the town hall session was worthwhile.

“I think this was a nice talk tonight,” he said.

Malheur County Judge Dan Joyce also said the town hall was beneficial.

“I am glad they showed up and put things into perspective,” he said of the speakers.