Posted on 06/10/2002 3:22:12 PM PDT by forest
The fun part here is that plaintiffs just set themselves up to get drop-kicked by the judge. To wit: anything not in the Constitution is outside the government's power. That is the 4th point in the briefing here.
Federal water projects are not IN the Constitution.
Therefore, the whole case is moot, because the plaintiffs are asserting title to something that was illegal to build in the first place. Therefore, a completely legal resolution would require the restoration of the Klamath River to its pre-Reclamation Project state and the return of land taken under eminent domain for the project to the rightful owners, or their heirs/assigns, and the return of land deeded over to the Feds by the State of Oregon. And the Green Peas freaks "re-wild" a river...with the help of the farmers who didn't WANT it returned to nature!
But it was built in violation of the Constitution, as Federal monies were spent on something NOT within the authority of the Federal Government.
Whether the water rights of Oregon permitted the project or not is irrelevant--the Constitution forbade its construction with Federal money. The state of Oregon or the farmers could have built it instead.
If we all adhered to your notion of constitutionality, we would quickly conclude that our society/culture is un- constitutional. You included.
I'm not arguing about the water rights.
The builder of the project is irrelevant.
Uh, sorry. The builder is QUITE relevant, because the brief raises the issue--it states that anything not permitted to the Federal government is forbidden to it. Therefore, by the farmers' own pleading, the project was constructed illegally. Any lands that are now under Klamath Lake needs to be returned to its rightful owners.
The farmers have the water rights, but the water rights and the water project are not one and the same.
If they're going to argue from a strict reading of the Constitution (as they do here), then they have no case, because the structures from the project should not be there in the first place.
You're trying to have both ends of this argument, and that just does not work.
Actually you are once again wrong - but not for the reason you think.
Your cute attempt to skewer the poster with his "logic" is actually logical - but open to discussion and research. Did the Government, under the enumerated powers clause, have the authority to enter into this contract? I don't know - haven't done the research.
If you are truly willing to finally admit that the Constitution is a limiting document which specifically limits Federal Power by only authorizing that which is specifically enumerated therein then you have made much progress in your understanding of the document. I doubt that you have come to accept that truth and believe you are merely adopting that position for the sake of tweaking the posters to this thread.
But I digress...back to your quote that I posted and why it is wrong. Under contract law - at equity - the remedy in this case, assuming arguendo, that the government did not have authority to enter into the contract to begin with (again, I'm not taking a position on that issue), where the other party has fully performed on their part of the contract, is to force the Government to perform on it's part of the contract. If such a remedy gives rise to causes of action to other parties then the contract and the Court's ruling is admissible in those actions for monetary damages against the government to the aggrieved parties.
So, any way you hash it, legitimate contract or exercise of extra-Constitutional power, the Government would be forced to live up to the terms of the orginal contract which it has not done to date....Regards.
Hey Jeff, how's the family? Let me know if you get east tp my neck of the woods any time soon. Our hoped-for trip to Oregon is on hold this year - so we won't be able to get out your way.
God bless you and yours.
But the federal government can? Then can anyone justify the Tennessee Valley Authority? A federal government builder of dams, locks, canals, hydro -electric generation plants, nuclear power generation plants, and coal fired power as well as gas turbine utilities? Plenty of once private land under those lakes. The owners forced to leave. All in the name of flood control which destroyed more land and property than it could ever possibly have saved.
But we don't sit back and let the federal government close off the water flow completely for extended times at their will either. It would cause a riot.
The first real test of the endangered species act was not done to protect a Snail Darter it was done to stop an out of control federal agency of tyrants and hold them accountable to the people again. This is yet another example of government's over reaching powers exceeding common sense. The feds don't care about any enviromental issues they impose it is used as a tool to rule by agency decree and nothing more. Now who's wanting it both ways?
Forest, Jeff Head, and many other supporters of the Klamath farmers always maintain that that there has been a violation of the farmer's constitutional rights. This is not true, they have no constitutional right to the water. They do have water rights, which have been violated. The basis of the water rights precede the constitution and were established by the Spaniards and later adopted by Oregon and the rest of the western states.
On the the other hand, the feds have no constitutional right to the water. In fact, the feds never made any claim to the waters anywhere in the country. They deferred to the states. In 1912 the Winters Doctrine was established, by a court decision, to provide water to an Indian Reservation for the purpose of farming. It was narrow, well defined and forgotton about for 50 years.
The activist court then expanded the Winters Doctrine aka Federal Reserved Water Rights for the Wilderness Act, ESA, and others. They now have in-stream flow rights, by-pass flow rights, and they like. The water does not have to be associated with a federal dam or project. They can claim water in a free flowing river, water behind a munincipal dam, or water in the ground. And the ownership of that water can have been established for 150 years.
The fact that the feds built the the Klamath Project has no bearing on the ownership of the water.
What I mean is that there would be NO authorization for the gubmint to destroy the water projects already put in.
If that were the case, the dams would have to be removed from the TVA, the Columbia River, the Colorado River, etc.
I agree that the Constitution did not authorize them in the first place. Now that they're there, there is also no authorization for the gubmint to remove them, although the environazis here in the Northwest are demanding that very thing.
In Idaho, a few years ago, there was a real bloody fight over the dams Idaho Power built in Hell's Canyon. The two Idaho democRAT senators tried their best to (unconstitutionally) build a single high dam, at taxpayer expense, and DESTROY the three revenue-producing dams that private enterprise built. Thankfully, the gubmint lost, but only just barely, and Pfost and Church are gone on to their rewards.
Even though the state is 69% owned by the federal government, the civil/private land owners should be able to retain the right to access their property as contracted by the feds, or the state. This is a failure of the feds/state to maintain their end of the contract.
the sad part of this is that my father is from Oregon, the dominoes are falling pal. Who's next in the west? Washington, Idaho, California, Nevada, Colorado, Arizona, New Mexico, Montana?
This is the start of the civil war that will free the west from the grip of the east.
Sword
In addition, the Government has defaulted on a contract with these people as respects the ownership and title of the distribution system for the water.
Both cases require the government, if it wishes to maintain any legitimacy regarding this situation, to fulfill its obligations constitutionally and contractually.
Finally, the means by which the government has gone about violating the rights of these people and not fulfilling their obligations (via the Endangered Species Act and via admittedly flawed scientific findings as evidence) are themselves unconstitutinal IMHO.
To date, even though water is again flowing (and I thank God and the brave people who stood against this for that), none of the critical issues have been addressed or resolved.
Whatever the best case the farmers may have, I think that injecting contitutionality into it just muddys the water and shifts the focus.
I tend to think of it in terms of water rights since there are those there that have riparian rights and there are those there that have water relocated to them via a ditch with some of them having senior rights and some having junior rights. Since they have been relegated to "unintended beneficiaries", their contractural rights don't seem to strong.
Whatever the case may be, the real issue is that the feds have trumps in that they can set minimum lake levels for the endangered sucker and minimum flow rates to satisfy treaty rights.
I think Bush has done some good things there as far as bringing in NAS, acquiring the water upstream, and trying to split the indians and the enviros, but the fact remains that only Congress can solve it permenantly.
Keep up the good work. Your ulterior motives are showing.
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