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Monday, July 16, 2012

Here is a REAL SHERIFF doing his duty!

This is what a real constitutional sheriff and true Peace Officer looks like.

Ben Stormes had the opportunity hear Sheriff Jon Lorey speak recently at the national Sheriffs’ Conference in Las Vegas.  He personally relates to the following message pertaining the federally mandated “coordination process”  in dealing with our ever increasing water issues as well as ongoing problems with U.S. Forest Service mismanagement of forests.  We, here in Montana need to pay heed to the experiences of Northern California and the manner in which citizens and their elected officials have taken a strong stand, fighting for the rights and livelihoods of citizens who are being undermined by rampantly intrusive government policies, propagandized news media and misinformed, agenda driven environmental organizations. 
Thank you, Fred Grant, for this very informative article.  I hope it gets wide distribution, readership and application, especially as we here in Montana become increasingly in need of it.  Montanans will be depending upon on our County Commissioners and Sheriffs to utilize “coordination” in dealing with federal agencies to provide policies essential to a healthy economy and way of life.

July 13, 2012-------------by Fred Kelly Grant

On July 2, Glen Martin wrote and published a post in the Huffington Post viciously attacking Sheriff Jon Lopey of Siskiyou County, in northern California.  Martin accused Lopey of misrepresentation, using “incendiary rhetoric”, overstepping his authority “to an alarming degree”, and apparently coveting the title of “Emperor of Northern California”.
Martin, an environmentalist writer called his assault “Above the Law”.   He is probably protected from the laws of slander and libel because the good Sheriff would now be considered a “public personality”.  Otherwise, Martin would be at the precipice of having gone overboard as to the truth.  Ironically, the post was published on the 2nd of July----because the independence that emanated from the Resolution signed on that day allows and protects freedom of speech.  As well as I know Sheriff Lopey, I know that he would not object to Palmer’s right to speak freely, even if inaccurately, and neither do I.  What I object to is that such a formidable site as Huffington Post would publish such a story, with no chance for rebuttal being offered to the elected official attacked.
That fact demonstrates the danger of the internet, e.g., it allows publication of articles that have no semblance of truth, that have been written without any effort to learn the truth or written inaccurately with full knowledge of the truth.  But, the Martin article also points out the awesome power of the internet, because it offers the medium for responding with the truth.
During the past two decades of work in helping local governments and elected officials use the “coordination” authority granted to them in federal laws passed by Congress, I  have many times been counseled to ignore attacks like Martin’s.   My friends, often wiser than I am in matters of political niceties, have contended that responses only prolong the impact of the attacks.  But, in my old age, as I settle into retirement, I have decided to ignore that sage advice.  I believe it is important to tell the public about the authority their local officials have to protect them against federal and state agency over-reach.  The knowledge of “coordination” has helped wherever the process is used.  If more people knew about it, understood it, and worked through organizations like Trademark America, the power of DC based agencies would diminish.
So, I choose to respond to Mr. Martin, and I hope that local officials and citizens who have benefited from local government exercise of “coordination” will also respond---with factual articles that help the general public understand that there is a way to diminish the awesome power that has been built up by the agencies themselves.
Sheriff Jon Lopey knows and understands the United States and California Constitutions.  He understands the position of a sworn County Sheriff in California as the chief law enforcement officer for his jurisdiction.  He knows that the primary duty of the Sheriff is to keep the peace, a peace that can be threatened when federal and state agencies take or infringe on private property rights, particularly when the exercise of those rights control whether or not a person can provide for himself or his family.
He knows also that the revenue base of the County has to remain strong if he is to have the funds needed to keep the peace and perform all other duties assigned him by law.   The plans and management actions of the environmental and natural resource agencies greatly affect the County’s revenue base and economic stability.  So, it is certainly within the Sheriff’s duties to help the County’s citizens protect their property rights, the exercise of which keeps them economically capable of paying their ad valorem taxes that produce revenue needed to provide vital County services.
Congress has recognized the importance of the Sheriff’s duties, and has directed federal agencies to “coordinate” with them.   Congress defined the term “coordinate” in the Federal Land Policy and Management Act, 43 USC 1712, by directing the Secretary of Interior to “coordinate” with local elected officials to resolve inconsistencies between federal and county operations.   The National Forest Management Act requires coordination by Forest Service with the Sheriff; the National Environmental Policy Act requires the same during all NEPA planning and studying.
The legislative history of FLPMA shows clearly that Congress recognized the adverse impact on a County’s revenue base that would result from the monstrous number of federally non-taxed acres in western counties, and from management actions of the federal agencies that manage those federal acres.  Congress thus mandated that federal agencies and personnel work closely with local officials to insure consistency of policy and management.   The method through which this close work is to be performed is “coordination”.
Moreover,  the agencies themselves understand the burden placed on them by Congress.  The Bureau of Land Management, the Forest Service, the Environmental Protection Agency, the Fish and Wildlife Service, the Federal Emergency Management Agency, the Federal Energy Regulatory Commission, the Corps of Engineers, the Highway Administration, the Department of Transportation and the Department of Justice all have issued regulations or planning rules setting forth how their personnel must coordinate with Sheriffs throughout the nation.
FLPMA has been interpreted and applied by the federal court in Utah where the Court set aside a Bureau of Land Management plan that was not consistent with the County plan.  The National Forest Management Act has been interpreted and applied in the federal district court for the Northern District of California where the court set aside a Forest Service plan that was not consistent with a state policy as to providing roadless areas in the national forests.   A California state appellate court has ruled that the “coordination” process means and demands far more than mere cooperation and working together.  It means, according to the court, that local officials have a meaningful role in the planning and management process and that federal officials must attempt to reach a mutually acceptable result.
Presidents Clinton, Bush and Obama have issued Executive Orders directing all federal agencies to coordinate with local officials in the spirit of federalism that is required by the United States Constitution, particularly the Tenth Amendment.   I have not read any other of Mr. Martin’s writings which, according to his bio, have appeared in Audubon, National Wildlife, The Nature Conservancy Magazine, Sierra, Outside, Trout, Discover, Wired, and Men’s Journal.  But, based on my experiences of the last fifty years, my bet would be that he is not a fan of either federalism or the Tenth Amendment which Sheriff Lopey understands fully.
California’s legislature has also passed over twenty statutes that require California agencies such as the Fish and Game Department to “coordinate” with the Sheriff.  I have not seen the letter from the Fish and Game Director to which Martin refers, but if it says what Martin attributes to it, the Director really needs to bone up on California law, as well as federal laws that apply to him
Martin obviously understands none of the above.   He wrote without even researching the laws forming the base for Sheriff Lopey’s actions and words.  Or, he intentionally ignored the truth.   Had Martin even  one iota of concern for the truth, he would have talked with Sheriff Lopey before accusing him of mis-using his position to gain personal esteem.
Martin attacks the Sheriff because of his opposition to the Klamath Agreement, knowing that most of his readers will not know the mischief that is inherent in that Agreement that calls for destruction of dams on the Klamath River, at least one of which is generating useful electricity that serves most of Siskiyou County.    Putting aside the illegality of the Agreement (It was negotiated and settled in violation of California’s open meeting law), I move to Martin’s suggestion that destruction of the dams will restore to the Klamath “its once-mighty salmon runs.”  What Martin does not tell his readers is that dam destruction will not save the salmon.  It makes no provision for neutralizing the silt behind the dams, silt that contains heavy metal materials that are toxic to fish. 
When dams were destroyed on the Rogue River in Oregon, the heavy metals from the silt killed all the fish in the river, salmon included.  A year ago, Sheriff Gil Gilbertson took me to the River in Grants Pass where a mining expert demonstrated the black, sticky “glunk” of heavy metals that he could pick out of the water with a magnet----analysis showed that it contained more than the amount of some toxins than would be permitted by federal agencies if a private company deposited them.  The environmental study for the Klamath destruction ignored these facts in the agency’s analysis of impacts from destruction of dams.
The federal government’s own “independent” study and analysis acknowledged that it is only speculative that destruction of the dams will help salmon recovery. When the dams are destroyed, that silt will be moved so far through the countryside that it will almost assuredly affect coastal ports.  It will move so slowly that it will take years and years to settle out, destroying valuable land, wet lands and waterways as it does.   
Even with that environmental destruction assured, environmental organizations support destruction.  The groups for which Martin writes stand ready to cash in on $93 MILLION a year authorized by the Agreement in grants to environmental organizations for salmon projects FOR YEARS FOLLOWING DESTRUCTION.    Amazing that the Administration cannot determine how to stabilize social security and medicare, but can consider such massive expenditures. 
Sheriff Lopey has the obligation to question the Agreement and its implementation.  The economic loss to ranchers who will lose at least one harvest if irrigation storage is lost will have a huge effect on  the economy of the County, and that will have a huge effect on the funds available to the Sheriff to fund keeping of the peace.  Moreover, if the destruction results in economic loss from water loss, the Sheriff will have the duty to keep the peace among people desperate for water.
The Siskiyou County Supervisors, sharing Sheriff Lopey’s concerns about the County’s citizens,  used their “coordination” authority to advise the Secretary of Interior that he had not complied with the law requiring him to “coordinate” with them and take into proper consideration the economic and environmental effects of the dam destruction.  They and the County Attorney were prepared to file a lawsuit to prevent destruction on the grounds, among others, that Congress had never authorized such action on the Klamath River.  At the very time that Supervisors were in Washington DC with representatives of Trademark America Foundation to discuss the Secretary’s action, he backed away, announcing that he would await Congressional authority.  Had it not been for Siskiyou’s elected officials engaging the Secretary’s department through the “coordination” authority, the Secretary’s order would no doubt already have been issued.
Sheriff Lopey is rightfully concerned about his citizens’ losing their water rights because that loss constitutes a deprival of a private property interest.  It is deprivation of a civil right which the United States Supreme Court has held to be one of the most critical to our ordered society.  Martin cautions that the water rights of the Yurok and Karuk Indians “likely supersede those of the ranchers” along the Klamath.    The active word is “likely” because Martin does not know the status of any such rights.   Moreover, Martin ignores the fact that even if their rights “supersede”, the term “supersede” does not equate to “destroy all secondary” water rights.   The Agreement will ultimately deprive ranchers, farmers and municipal populations of water rights----and without the compensation that is required by both the California and United States Constitutions.
Martin also attacks the Sheriff for his efforts to see that logging resumes in Siskiyou County.  Martin says, inaccurately, that there is no viable logging left because the forests were clear cut long ago.  He uses his work in the Forest Service and information from the “70s” as his source.  If Martin is as active with environmental groups as his writing would suggest, he knows this is a completely false statement.   This is 2012, the forests are in sick and dying condition today, not from over-logging, but because of lawsuits and disruptions of logging caused by some of  those for whom Martin writes.  The Forest Service for which he worked even acknowledges that logging is critical today to return forest health.   But obstructionist environmental organizations still work to prevent logging at the risk of seeing the forests die.  Siskiyou County, as others throughout the northwest know that if they had the management decisions for even a portion of the Forests, they could let contracts that would put people back to work, and reduce federal expenditures that are being made in lieu of former logging receipts.  Sheriff Lopey knows this, and it is his duty as the elected law enforcement representative of the County’s citizens to push the agencies toward getting past the environmentalist obstructionism.
Jon Lopey stands tall along with several other California sheriffs who have determined that they will exercise the authority granted them by federal and California law.  Those grants of authority are consistent with the Tenth Amendment’s reservations of sovereign authority of states and local governments in matters related to the “police powers”, that is, those powers necessary to protect the public health, safety and welfare.    I am proud to have worked with him.  He serves his citizens well, and is the kind of Sheriff every county deserves.